Politicians like simple stories and simple solutions even when the issues are complex as with net neutrality. I get it. So they get told simple stories by lobbyists to get them to behave in a way that is beneficial to certain commercial interests. I get that. Complaints that the debates on net neutrality are dominated by extremes are legitimate. But the logical leap then to the argument that net neutrality purists should be dismissed and commercial interests prevail - i.e. saying one end of the spectrum is right and the other wrong - is a leap too far.
Jean-Jacques Sahels of Skype and La Quadrature du net's Jérémie Zimmermann, for example, were very badly treated by the first afternoon session chair, Malcolm Harbour, who insisted in intervening in their contributions to the debate and disagreeing with them. At the same time Mr Harbour both explicitly and implicitly praised the contributions of those selling the anti net neutrality message. Mr Harbour's duty as an MEP is to look to the public interest and undermining those who are attempting to speaking up for the public interest should not be part of his remit.
Cisco and similar tech companies want to sell intelligent network kit.That's their business. The more intelligent the kit the better the margins. Net neutrality doesn't aid their bottom line. They have a right to argue for the need for "innovation at the core of the network" but it doesn't negate the fact that it is the innovation at the edges of the network that has transformed the world.
Telcos sell access to networks. Controlling how people behave on those networks is in their interests particularly when they can charge more to provide access to the faster, broader, low latency services. Net neutrality doesn't serve that end. Of course if they are seen to be able to control traffic then their get out clause on liability for third party behaviour on their networks may be forfeited but that may be a balancing act they have to manage.
Similarly net neutrality gives mobile operators revenue issues.
Unfortunately when the pie is sliced up amongst the stakeholders:
Commercial users of the Net (content owners, retailers, search engines, cloud providers etc.)
Commercial facilitators of the Net (telcos, Ciscos etc.)
Ordinary nay extraordinary net users (general public)
The interests of the general public rarely come into the decision making other than in vague promises about keeping the public at the heart of the debate or platitudes on transparency or consumer empowerment. When there are vague commitments to the 'bests efforts internet' in addition to 'managed services' there is little doubt that the 'bests efforts internet' ultimately means the slow lane for people who are not prepared to or don't have the wherewithal to pay the necessary premium for the managed services.
Just one extra point about managed services. So often one of the big excuses for saying we'll need special fast lanes is that it will be necessary for elearning. As someone who has been deeply buried in the practice of so-called elearning at scale for over 15 years the best thing the Commission and Parliament could do for elearning is to gaurantee a universal superfast network infrastructure and make it open. The thing that most interferes with elearning is congestion and poor quality of service at the ends of the network. The thing that will fix that is big fat low latency dumb and neutral communications pipes. How you cut the gordian knot on investment in and construction of such an infrastructure is a tough one. But that's what policymakers should be focussing on not on protecting existing commercial interests. And maybe they need to be reading up on John Maynard Keynes and thinking about public and private investment in such an infrastructure. Pay some people to dig holes, pay more people to fill them with fibre optic cables, pay more people to fill them in and pay even more to connect every home in Europe to the fastest open infrastructure in the world. Connect all those people, spin the continent and watch the magic flow.
Saturday, November 13, 2010
Friday, November 12, 2010
Net Neutrality Summit
I had the privilege of being an invited delegate at the EU Summit on 'The Open Internet and Net Neutrality in Europe' in Brussels yesterday. The morning sessions were held at the Commission's Charlemagne building and the afternnoon sessions at the EU parliament.
That the lunchtime walk between the two, in freezing driving rain, proved something of a contrast to the wonderful sunny netherworld presented by many of the speakers. The EU was lauded as leading the world in staying out of the way of the market and the, if not perfect, then the best of all possible internets evolving before our very eyes. Seriously there is a wonderful internet universe out there which will only get better if the EU has the sense to avoid regulating the companies delivering it.
It was a bit like a variation on Groundhog Day as I listened again and again to the same message pouring out of the mouths of speaker after speaker from Cisco, AT&T, Alcatel Lucent, DigitalEurope, Ofcom, GSMA, Cable Europe, Telefonica, NokiaSiemens and others. Actually it is unfair to include Sigurd Schuster of NokiaSiemens. He did at least explain why, in a congested, network the laws of physics dictate the limitations of the technology. Sadly MEP Malcolm Harbour, who was chairing that session, immmediately alighted on Mr Schuster's slides claiming they were a great demonstration of the reasons why the EU needed to stay out of the way of the market and avoid regulating. Getting back to the message that was repeated by the corporate and trade body speakers, though, it amounted to:
1. There is no anti-consumer or anti competitive behaviour in relation to the internet
2. The is no evidence of anti consumer or anti competitive behaviour
3. Concern about such nefarious behaviour is purely theoretical and scaremongering by extremists
4. All regulation has costs
5. Regulators should focus on 'transparency' and 'consumer empowerment' as cures because regulation is not free
6. The US was wrong, WRONG, WRONG to commit to net neutrality and an open internet
7. The EU can lead the world by not making the same mistake and by refusing to regulate
8. Net neutrality is not compatible with enabling network providers to innovate
9. The Net is brilliant but it will only continue to be so if the EU leads the world by not regulating
10. All is rosy the netherworld of the internet, so don't spoil it! Only extremists want net neutrality.
Ok, so I may be laying it on a bit thick but honestly, having hit the road at 4am to catch the Eurostar and battled the weather all the way to the Commission, only to listen to this shrill corporate claptrap (again, in fairness some were significantly more shrill than others), I felt like cheering when Chris Marsden rose as the sole voice of reason just before lunch. He suggested there was a touch of the three wise monkeys about the message being delivered by other speakers and the desperate collective unanimity, to convey the notion that there is no problem, should raise suspicions. (Actually even Bernd Langeheine, Director DG INFSO, who had been chairing the session, had introduced Dr Marsden by suggesting there had been an "alarming consensus amongst the speakers so far."). The good doctor pointed out that vague, broad promises about an open internet and requiring "the consumer to be at the heart of the debate" don't cut the mustard. The devil is in the details.
Four years ago, Charles Dunstone, chairman of TalkTalk said:
And frankly on the notion that regulators already have the tools to step in if there is ever a problem regulators saying "We have received no complaints" is completely different to "we have not listened to any complaints." I'm not sure in the UK whether Ofcom can actually listen to complaints from consumers as I believe it is only ISPs that have the right currently to make a formal complaint. Absence of evidence is not evidence of absence and there is a serious need for scrutiny and collection of evidence on the reality of internet services in Europe. After all if there is no problem there will be nothing to hide. There is a desperate need for robust independent research and little or no direct empirical evidence on network providers practices at the moment.
The thing is I understand the genuine concerns of corporate actors on this. Regulating net neutrality is difficult and there is a fair chance that policymakers would screw it up, as they do with much tecnhology regulation. When John McCarthy of Level 3 Communications Limited says his biggest fear is having to tell smart techies who have come up with brilliant technology to stop work until he can consult his lawyers on the legality of the innovation, I share that concern. For goodness sake we're already there with intellectual property laws. When Rober Pepper of Cisco says
1. Consumer/citizens should have access to the networks, goods, services and applications they want
2. There should be investment in the network
3. The network should be fit for purpose to dynamically support different kinds of applications
4. We want managed services in addition to the bests efforts internet
I largely agree with him though I suspect we might disagree on some of the details of items 3 and 4. When he says we need traffic management on current congested networks to give latency sensitive applications like P2P VOIP priority over email, I agree with him. But that's doesn't seem to be what Charles Dunstone meant when he said TalkTalk shape p2p traffic. When Robert Pepper says caching at the edges of the network will improve some video services (eg BBC iPlayer) but that caching doesn't work for other video services like teleconferencing or Skyping which need high bandwidths, I agree with him. When he says the net neutrality debate is too often a debate of extremes and false choices I agree with him.
When he then says "extremists would have us freeze the internet in time" we part company because he seems to be saying one group of extremists is wrong and the other is right. Whereas the devil is in the details. When he says we should avoid regulation and instead focus on transparency and consumer empowerment we again disagree for the reasons I outlined in my submission to the EU consultation. Transparency and essentially meaningless phrases like 'conumer empowerment' are never going to be enough in an unequal world. And as Jeremie Zimmerman said later, what matters is the harm being done not transparency of the infliction of harm, which if it is accompanied by lack of action to prevent and/or repair the harm is meaningless; and when switching suppliers is incredibly difficult, even in that supposed home of the most competitive ISP market in the EU, the UK.
When Jean-Jacques Sahel, Director, Government and Regulatory Affairs at Skype says the open character of the Internet is the foundation of all the benefits delivered at all levels of the internet value chain from consumer to ISP to innovators for the past 20 years, I also agree with him. When he says also we are heading towards a future of walled gardens or a collection of hinderednets I have to agree with him there too and this will considerably diminish the value of the Net. There are already problems in Europe. Skype is prohibited or subject to heavy surcharges on many services. All mobile operators in France block Skype. The EU mobile network is crippled and on this front the EU is getting left behind. Traffic management is not inherently bad when it is used for appropriate reasons eg to manage congestion but it should not be abused for commercial reasons. Yet it is being used in that way. When you make discrimination for commercial gain possible it will happen. That is not just a theoretical concern. Skype is being blocked by mobile operators in France but there is no evidence of this as it is really difficult for independent researchers have access to the required data to generate sufficiently robust objective evidence to that effect.
The sad thing about the simple "there is no problem, do not regulate" corporate message is that they are selling such a simple story to keep the policymakers out of their hair, yet the devil is in the details and the Jean-Jacques Sahels and Robert Peppers of the world know this. But when the debate is dominated by the stories being told yesterday I reserve the right to maintain my concerns about the direction of travel on the whole notion of net neutrality in the EU.
That the lunchtime walk between the two, in freezing driving rain, proved something of a contrast to the wonderful sunny netherworld presented by many of the speakers. The EU was lauded as leading the world in staying out of the way of the market and the, if not perfect, then the best of all possible internets evolving before our very eyes. Seriously there is a wonderful internet universe out there which will only get better if the EU has the sense to avoid regulating the companies delivering it.
It was a bit like a variation on Groundhog Day as I listened again and again to the same message pouring out of the mouths of speaker after speaker from Cisco, AT&T, Alcatel Lucent, DigitalEurope, Ofcom, GSMA, Cable Europe, Telefonica, NokiaSiemens and others. Actually it is unfair to include Sigurd Schuster of NokiaSiemens. He did at least explain why, in a congested, network the laws of physics dictate the limitations of the technology. Sadly MEP Malcolm Harbour, who was chairing that session, immmediately alighted on Mr Schuster's slides claiming they were a great demonstration of the reasons why the EU needed to stay out of the way of the market and avoid regulating. Getting back to the message that was repeated by the corporate and trade body speakers, though, it amounted to:
1. There is no anti-consumer or anti competitive behaviour in relation to the internet
2. The is no evidence of anti consumer or anti competitive behaviour
3. Concern about such nefarious behaviour is purely theoretical and scaremongering by extremists
4. All regulation has costs
5. Regulators should focus on 'transparency' and 'consumer empowerment' as cures because regulation is not free
6. The US was wrong, WRONG, WRONG to commit to net neutrality and an open internet
7. The EU can lead the world by not making the same mistake and by refusing to regulate
8. Net neutrality is not compatible with enabling network providers to innovate
9. The Net is brilliant but it will only continue to be so if the EU leads the world by not regulating
10. All is rosy the netherworld of the internet, so don't spoil it! Only extremists want net neutrality.
Ok, so I may be laying it on a bit thick but honestly, having hit the road at 4am to catch the Eurostar and battled the weather all the way to the Commission, only to listen to this shrill corporate claptrap (again, in fairness some were significantly more shrill than others), I felt like cheering when Chris Marsden rose as the sole voice of reason just before lunch. He suggested there was a touch of the three wise monkeys about the message being delivered by other speakers and the desperate collective unanimity, to convey the notion that there is no problem, should raise suspicions. (Actually even Bernd Langeheine, Director DG INFSO, who had been chairing the session, had introduced Dr Marsden by suggesting there had been an "alarming consensus amongst the speakers so far."). The good doctor pointed out that vague, broad promises about an open internet and requiring "the consumer to be at the heart of the debate" don't cut the mustard. The devil is in the details.
Four years ago, Charles Dunstone, chairman of TalkTalk said:
“We shape traffic to restrict P2P users.I fully understand the need for traffic management on modern congested networks but that is not traffic management for a best services internet or to manage congestion or for security.
"I get hate mail at home from people when that means we restrict their ability to play games."
I’ve got 2 people that have said they’re going to kill me as a result of not allowing them to play certain games.
From our point of view, it’s not about security, it’s about trying to figure out what type of traffic it is.”
And frankly on the notion that regulators already have the tools to step in if there is ever a problem regulators saying "We have received no complaints" is completely different to "we have not listened to any complaints." I'm not sure in the UK whether Ofcom can actually listen to complaints from consumers as I believe it is only ISPs that have the right currently to make a formal complaint. Absence of evidence is not evidence of absence and there is a serious need for scrutiny and collection of evidence on the reality of internet services in Europe. After all if there is no problem there will be nothing to hide. There is a desperate need for robust independent research and little or no direct empirical evidence on network providers practices at the moment.
The thing is I understand the genuine concerns of corporate actors on this. Regulating net neutrality is difficult and there is a fair chance that policymakers would screw it up, as they do with much tecnhology regulation. When John McCarthy of Level 3 Communications Limited says his biggest fear is having to tell smart techies who have come up with brilliant technology to stop work until he can consult his lawyers on the legality of the innovation, I share that concern. For goodness sake we're already there with intellectual property laws. When Rober Pepper of Cisco says
1. Consumer/citizens should have access to the networks, goods, services and applications they want
2. There should be investment in the network
3. The network should be fit for purpose to dynamically support different kinds of applications
4. We want managed services in addition to the bests efforts internet
I largely agree with him though I suspect we might disagree on some of the details of items 3 and 4. When he says we need traffic management on current congested networks to give latency sensitive applications like P2P VOIP priority over email, I agree with him. But that's doesn't seem to be what Charles Dunstone meant when he said TalkTalk shape p2p traffic. When Robert Pepper says caching at the edges of the network will improve some video services (eg BBC iPlayer) but that caching doesn't work for other video services like teleconferencing or Skyping which need high bandwidths, I agree with him. When he says the net neutrality debate is too often a debate of extremes and false choices I agree with him.
When he then says "extremists would have us freeze the internet in time" we part company because he seems to be saying one group of extremists is wrong and the other is right. Whereas the devil is in the details. When he says we should avoid regulation and instead focus on transparency and consumer empowerment we again disagree for the reasons I outlined in my submission to the EU consultation. Transparency and essentially meaningless phrases like 'conumer empowerment' are never going to be enough in an unequal world. And as Jeremie Zimmerman said later, what matters is the harm being done not transparency of the infliction of harm, which if it is accompanied by lack of action to prevent and/or repair the harm is meaningless; and when switching suppliers is incredibly difficult, even in that supposed home of the most competitive ISP market in the EU, the UK.
When Jean-Jacques Sahel, Director, Government and Regulatory Affairs at Skype says the open character of the Internet is the foundation of all the benefits delivered at all levels of the internet value chain from consumer to ISP to innovators for the past 20 years, I also agree with him. When he says also we are heading towards a future of walled gardens or a collection of hinderednets I have to agree with him there too and this will considerably diminish the value of the Net. There are already problems in Europe. Skype is prohibited or subject to heavy surcharges on many services. All mobile operators in France block Skype. The EU mobile network is crippled and on this front the EU is getting left behind. Traffic management is not inherently bad when it is used for appropriate reasons eg to manage congestion but it should not be abused for commercial reasons. Yet it is being used in that way. When you make discrimination for commercial gain possible it will happen. That is not just a theoretical concern. Skype is being blocked by mobile operators in France but there is no evidence of this as it is really difficult for independent researchers have access to the required data to generate sufficiently robust objective evidence to that effect.
The sad thing about the simple "there is no problem, do not regulate" corporate message is that they are selling such a simple story to keep the policymakers out of their hair, yet the devil is in the details and the Jean-Jacques Sahels and Robert Peppers of the world know this. But when the debate is dominated by the stories being told yesterday I reserve the right to maintain my concerns about the direction of travel on the whole notion of net neutrality in the EU.
Wednesday, November 10, 2010
Simon Singh on libel reform
Simon Singh writes,
(Via Cory)This week is the first anniversary of the report Free Speech is Not for Sale, which highlighted the oppressive nature of English libel law. In short, the law is extremely hostile to writers, while being unreasonably friendly towards powerful corporations and individuals who want to silence critics. The English libel law is particular dangerous for bloggers, who are generally not backed by publishers, and who can end up being sued in London regardless of where the blog was posted. The internet allows bloggers to reach a global audience, but it also allows the High Court in London to have a global reach.
You can read more about the peculiar and grossly unfair nature of English libel law at the website of the Libel Reform Campaign. You will see that the campaign is not calling for the removal of libel law, but for a libel law that is fair and which would allow writers a reasonable opportunity to express their opinion and then defend it.
The good news is that the British Government has made a commitment to draft a bill that will reform libel, but it is essential that bloggers and their readers send a strong signal to politicians so that they follow through on this promise. You can do this by joining me and over 50,000 others who have signed the libel reform petition.
Remember, you can sign the petition whatever your nationality and wherever you live. Indeed, signatories from overseas remind British politicians that the English libel law is out of step with the rest of the free world.
If you have already signed the petition, then please encourage friends, family and colleagues to sign up. Moreover, if you have your own blog, you can join hundreds of other bloggers by posting this blog on your own site. There is a real chance that bloggers could help change the most censorious libel law in the democratic world.
We must speak out to defend free speech. Please sign the petition for libel reform!
Wednesday, November 03, 2010
French suspend articles 6.1 and 6.3 of European Convention on Human Rights
ECHR case-law news of France is reporting that the French ministry of Justice has announced that articles 6-1 and 6-3 of the Convention are suspended.
DACG19102010
It appears to be signed by Maryvonne Caillbotte who is the Director of Criminal Affairs and Pardons at the French Department of Justice.
"On October 19th 2010, the ministry of Justice notified all district attorneys (D.A) and judges of France that the rights under article 6-1 and 6-3 of the Convention were suspended for suspects in police custody until July 1st 2011. According to the official notice, these rights are the right to be informed of the right to remain silent and the right to have the legal assistance of a lawyer during police interrogation (case Brusco v. France (1466/07)).The notice also stated that judges in France cant dismiss confession obtained in violation of articles 6-1 and 6-3 of the Convention and that any ruling of dismissal will be appealed by the district attorney...
A copy of the order of suspension is available at Scribd.The notice explained that this suspension of articles 6-1 and 6-3 of the Convention is based on 3 controversial rulings of the supreme court on October 19th 2010(case Tisset (10-82.902), case Sahraoui (10-82.306), case Bonnifet (10-85.051)). Case Sahraoui and Bonnifet were brought to the supreme court following appeals by the D.A of the appeal court of Poitiers and the one of the appeal court of Agen.In these 3 cases the D.A of the supreme court pleaded that the articles 6-1 and 6-3 of the Convention should be considered having being suspended until July 1st 2011 because the agency Conseil Constitutionnel already ruled in the application 2010-14/22 QPC [en] that rights under the Constitution were suspended for suspects in police custody until July 1st 2011. The ruling of the supreme court in favor of the retroactive suspension of the Convention for a “good administration of justice“, was a move that left numerous lawyers in France bewildered.In fact, the obligation of the French Republic under the articles 6-1 and 6-3 of the Convention, can only be suspended “in time of war or other public emergency threatening the life of the nation” (art.15-1 of the Convention)."
DACG19102010
It appears to be signed by Maryvonne Caillbotte who is the Director of Criminal Affairs and Pardons at the French Department of Justice.
Tuesday, November 02, 2010
Panasonic, J.F. Associates and the Oxford digital TV signal
The saga of my Panasonic DMR EX75 DVD recorder with the dodgy DVD drive was eventually resolved. After an extended exchange of emails with Panasonic I had taken the machine to the local Panasonic approved repair centre, J.F. Associates, who assess the problem with this kind of machine for a standard fee of £58.75. After a few days they phoned to say they could not do anything until they fitted a new power supply, at an extra cost of about another £58. I approved the work and a few days later got a call to say they had figured out the problem - the DVD drive had died as I had suspected. Unfortunately the cost of replacing it would be between £130 and £140. So in total the repair would cost about £250, more than a new, higher spec. machine. If I'd known that before I started I'd have thrown it out and bought a replacement, though naturally there were several things on the hard drive I'd prefer not to lose.
I decided not to have the drive replaced but followed up with a complaint to Panasonic that even though the machine was over three years old it was an indictment of their standards that the drive should give up the ghost on the first occasion I attempted to copy anything to a DVD. There followed a - several weeks long - extended exchange of emails. Pansonic wanted me to post them a copy of my purchase receipt - I didn't have that but I did have an online order number and a blogpost about the purchase saga. They wanted a copy of a written quotation for the repair - also something I repeatedly pointed out I didn't have because I had been quoted the repair estimate over the phone. (If I'd had one more polite email telling me they were looking forward to receiving a copy of the written repair quotation, this post would have been significantly longer and included the tortuous email exchange in full). In the end I asked the repair centre, J.F. Associates to confirm the repair cost they had quoted with Panasonic which they kindly did.
Communications then went dark for some weeks until out of the blue I got a call from a very helpful lady at J.F. Associates to say they had been in touch with Panasonic, who had now agreed to supply a new DVD drive free of charge. She added that as a gesture of goodwill J.F.Associates would fit the drive at no further cost to me.
So kudos to Panasonic for eventually getting round to doing the right thing and especially to the folks at J.F. Associates for being so helpful and taking the trouble to engage with Panasonic on my behalf. I take a few lessons from the experience.
Firstly it's worth blogging about these things - the blogpost from 2007 helped me to provide the required proof of purchase.
Secondly it can be worth persisting politely with customer relations centres, if you have the stamina. The people in these centres generally want to be helpful even if the detailed systems, rules and procedures they are working to quite often impede that desire to help.
Lastly, people generally like to be helpful. The folks at J.F. Associates had been paid for the repair assessment. They had no obligation to communicate with Panasonic on my behalf and no obligation to fit the drive as a goodwill gesture. It involved extra effort and work on their part for no extra financial gain. It has, however, left me with a positive perspective on the service they offer and with a good chance of repeat business.
The drive got replaced some weeks ago. I was reminded about it because the hard drive started playing up last night refusing to record properly. Here we go again...? I'm wondering, though, if there is a problem, as there was earlier in the year, with the digital transmitter in Oxford. On checking, the signal strength and quality was very low, particularly on the ITV channels. The website currently says there are no problems with the TV signal though the radio signal may be weak over the next week due to engineering works. The last time there was a problem, though, the website also said there were no problems. On that occasion, according to the local BBC news as I recall, there were several hundred people in the area who invested in new TVs, aerials and recorders in the belief that the problems with their reception were caused by their old kit. I might just delay my next trip to J.F.Associates and monitor emerging news on the transmitter. There was a fire on the main antenna in May this year and the signal was delivered via a reserve for several months. They were supposed to go back on the main antenna by the end of September but maybe there are further technical problems following the switch back? If anyone in the Oxford area has the inside track on this I'd be interested in hearing about it.
I decided not to have the drive replaced but followed up with a complaint to Panasonic that even though the machine was over three years old it was an indictment of their standards that the drive should give up the ghost on the first occasion I attempted to copy anything to a DVD. There followed a - several weeks long - extended exchange of emails. Pansonic wanted me to post them a copy of my purchase receipt - I didn't have that but I did have an online order number and a blogpost about the purchase saga. They wanted a copy of a written quotation for the repair - also something I repeatedly pointed out I didn't have because I had been quoted the repair estimate over the phone. (If I'd had one more polite email telling me they were looking forward to receiving a copy of the written repair quotation, this post would have been significantly longer and included the tortuous email exchange in full). In the end I asked the repair centre, J.F. Associates to confirm the repair cost they had quoted with Panasonic which they kindly did.
Communications then went dark for some weeks until out of the blue I got a call from a very helpful lady at J.F. Associates to say they had been in touch with Panasonic, who had now agreed to supply a new DVD drive free of charge. She added that as a gesture of goodwill J.F.Associates would fit the drive at no further cost to me.
So kudos to Panasonic for eventually getting round to doing the right thing and especially to the folks at J.F. Associates for being so helpful and taking the trouble to engage with Panasonic on my behalf. I take a few lessons from the experience.
Firstly it's worth blogging about these things - the blogpost from 2007 helped me to provide the required proof of purchase.
Secondly it can be worth persisting politely with customer relations centres, if you have the stamina. The people in these centres generally want to be helpful even if the detailed systems, rules and procedures they are working to quite often impede that desire to help.
Lastly, people generally like to be helpful. The folks at J.F. Associates had been paid for the repair assessment. They had no obligation to communicate with Panasonic on my behalf and no obligation to fit the drive as a goodwill gesture. It involved extra effort and work on their part for no extra financial gain. It has, however, left me with a positive perspective on the service they offer and with a good chance of repeat business.
The drive got replaced some weeks ago. I was reminded about it because the hard drive started playing up last night refusing to record properly. Here we go again...? I'm wondering, though, if there is a problem, as there was earlier in the year, with the digital transmitter in Oxford. On checking, the signal strength and quality was very low, particularly on the ITV channels. The website currently says there are no problems with the TV signal though the radio signal may be weak over the next week due to engineering works. The last time there was a problem, though, the website also said there were no problems. On that occasion, according to the local BBC news as I recall, there were several hundred people in the area who invested in new TVs, aerials and recorders in the belief that the problems with their reception were caused by their old kit. I might just delay my next trip to J.F.Associates and monitor emerging news on the transmitter. There was a fire on the main antenna in May this year and the signal was delivered via a reserve for several months. They were supposed to go back on the main antenna by the end of September but maybe there are further technical problems following the switch back? If anyone in the Oxford area has the inside track on this I'd be interested in hearing about it.
Friday, October 29, 2010
Ofcom FOI on BBC Internal review ongoing
Mauzima Bhamji at Ofcom has written to explain that their internal review relating to my freedom of information request on the BBC & Freeview DRM decision is ongoing. S/he hopes to be able to provide a substantive response by 23 November.
"Dear Mr Corrigan
Freedom of Information: Internal review (Content management on the HD
Freeview platform)
Thank you for your email dated 28 September to Ofcom asking for a review
of Ofcom's decision in relation to your request for information.
On 29 September I wrote to you stating that the "review will be conducted
under the supervision of the Secretary to the Corporation. While there is
no statutory deadline for completing internal reviews, we aim to respond
within 20 working days".
We are currently undertaking the review of our decision that you
requested. As we do not have all the information in order to make a
decision, Ofcom is still not in a position to reply to your request for a
review. It is therefore necessary to extend the date for responding to
you. I hope to be in a position to respond to you by 23 November 2010.
Yours sincerely
Mauzima Bhamji"
Friday, October 22, 2010
Eldred mark 2 heads to the US Supreme Court
This week the Center for Internet and Society at Stanford University filed a petition for a writ of certiorari asking the United States Supreme Court to review the Golan case. Ever since the Supreme Court ruled, in a split 7-2 decision in January 2003, against Eric Eldred (and his lawyer, Larry Lessig) who questioned the constitutionality of repeated extensions of copyright terms, copyfighters have been looking to return the issue to the Court's agenda. The Golan case has been their great hope of, if not overturning, then putting a dent in the Eldred ruling. Brewster Kahle failed to get the court to consider overturning Eldred in 2008. But since the Kahle case was all but the same as the Eldred case that was arguably an almost inevitable, if disappointing, outcome.
Technically the case is about re-applying copyright protection to thousands of foreign works the Copyright Act had previously placed in the public domain. Mr Golan performs and teaches works by foreign composers like Shostakovich and Stravinsky. He argues that the removal of some of these works from the public domain, due to changes in US copyright laws, led to higher costs to him for performance fees, royalties, sheet music rentals etc. When these costs are too high they may interfere with his first amendment rights to freedom of expression.
There are other issues being argued but effectively, like the Eldred case, this is about testing the limits of congressional power to continually expand the scope and term of copyright. It will be really interesting to see whether the Court agrees to look at the case.
Random cybergeek trivia: Having argued and lost the Eldred case before the US Supreme Court, afaik Larry Lessig earned his first courtroom victory in September 2007, in the Golan case.
Technically the case is about re-applying copyright protection to thousands of foreign works the Copyright Act had previously placed in the public domain. Mr Golan performs and teaches works by foreign composers like Shostakovich and Stravinsky. He argues that the removal of some of these works from the public domain, due to changes in US copyright laws, led to higher costs to him for performance fees, royalties, sheet music rentals etc. When these costs are too high they may interfere with his first amendment rights to freedom of expression.
There are other issues being argued but effectively, like the Eldred case, this is about testing the limits of congressional power to continually expand the scope and term of copyright. It will be really interesting to see whether the Court agrees to look at the case.
Random cybergeek trivia: Having argued and lost the Eldred case before the US Supreme Court, afaik Larry Lessig earned his first courtroom victory in September 2007, in the Golan case.
Is turnover the barometer of “Worth”?
Rich Huxley has an insightful post on the music business, Is turnover the barometer of “Worth”?
"Less than 10% of signed artists recoup. Take Maximo Park for example. They have by their own admission never made a penny from record sales and make their money from DJ sets in the main. An example I have first hand knowledge of, Embrace, have sold millions of albums, they were a genuinely massive band; they performed from Glastonbury main-stage to Top Of The Pops and everywhere in-between. When they split from Virgin, they owed their label three quarters of a million pounds. I guess my point is that if we promote the Trad Music Biz’s model as “The model” then the message we’d be sending is:
I can’t promote that, I can’t encourage it, and it’s not representative of the vast swathe of music makers interests to do so."
- less than one percent of musical artists are part of the music business
- only a tenth of those will recoup and make money from their record sales, and that’s good
- an artist should be saddled with debt, the rate at which they pay that back is equivalent to a credit card with a 900% interest rate
Thursday, October 21, 2010
The consumer perspective on the open internet
Video and reports from the POLIS and Communications Consumer Panel 'Net neutrality and the Open Internet: the consumer perspective' event at the LSE in September are now available. The 4min 23sec video gives a very good flavour of the discussions on the day.
Consumer Panel Net Neutrality event from Communications Consumer Panel on Vimeo.
Consumer Panel Net Neutrality event from Communications Consumer Panel on Vimeo.
Wednesday, October 20, 2010
James Boyle and Pamela Jones win EFF Pioneer Awards
James Boyle and Pamela Jones have been awarded the Electronic Frontier Foundation's highest acolade and named as EFF Pioneer Award winners, 'leaders who are extending freedom and innovation on the electronic frontier.'
"James Boyle is William Neal Reynolds Professor of Law and co-founder of the Center for the Study of the Public Domain at Duke Law School. Professor Boyle is recognized for his exceptional scholarship on the "second enclosure movement" -- the worldwide expansion of intellectual property rights -- and its threat to the rich public domain of cultural and scientific materials that the Internet might otherwise make available. An original board member of Creative Commons and co-founder of Science Commons, Professor Boyle has worked for over 20 years as both an academic and institution builder to celebrate and protect the values of cultural and scientific openness.
When Pamela Jones created Groklaw in 2003, she envisioned a new kind of participatory journalism and distributed discovery -- a place where programmers and engineers could educate lawyers on technology relevant to legal cases of significance to the Free and Open Source community, and where technologists could learn about how the legal system works. Groklaw quickly became an essential resource for understanding such important legal debates as the SCO-Linux lawsuits, the European Union antitrust case against Microsoft, and whether software should qualify for patent protection."Congratulations to both and to the other award winners this year, Steven Aftergood of Secrecy News and Hari Krishna Prasad Vemur, a security researcher in India who revealed serious security flaws in India's paperless electronic voting machines; enduring jail time, repeated interrogations, and ongoing political harassment from a political establishment more focussed on covering up the problems than doing anything to address them.
Tuesday, October 19, 2010
Net neutrality on BBC's Click on
I made a brief appearance on the BBC Radio 4 'Click On' programme yesterday to discuss net neutrality with presenter Simon Cox, ZDNet editor, Rupert Goodwins and chief technology writer at the Economist, Tom Standage. The segment starts about 17.5 minutes into the programme. Simon Cox opened with a succinct explaination of net neutrality suggesting it boiled down to the principle that all data on the internet, no mater what it is or where is comes from, should be treated equally.
We then went on to have a wide ranging discussion during which I displayed the standard academic's curse of trying to explain the complexity of the issue, Tom Standage was very entertaining on how he thought the concept of net neutrality was 'silly' and Rupert Goodwins made the points I was trying to make but in a much more accessible way for a radio audience.
Simon Cox invited me to begin the discussion by setting some of the background and the history. I explained that the Net kinda grew by accident and there were a couple of key things that facilitated that:
1. General purpose computers - which can be programmed to do anything and are not controlled (post sale) by the vendor/manufacturer
2. The open network - which was open to everyone not just trusted sources like the BBC
I also explained that it grew on the back of the telephone network originally and before governments or telcos really noticed. So all of this - the general purpose computers, the open network and the lack of control led to an explosion of commercial, social and cultural creativity. Enterprises like Amazon, the World Wide Web itself, Wikipedia, Google, Facebook etc. grew. And because of the absence of concentrated control of the platforms or network none of the instigators of these entities had to ask anyone for permission. No permission was required.
Now, however, governments and commerce are both very much aware of the net and energetically attempting to assert control over it. These combined forces are leading to a closing down of the Net and an evolution towards a future of fragmentation (walled gardens and national firewalls) and control. That in turn kills the facilty for innovation and creativity which should have us asking where the next Google or Web is coming from.
Rupert Goodwin then went on to explain some of the commercial forces involved - how, for example, when network owners also have an interest in content they naturally try to cut out competitors and keep people in walled gardens and that's why net neutrality is important. So there is a very very strong commercial impetus to break the internet. People with great ideas in back bedrooms will be shielded out and we'll be back in the bad old days where if you don't play the game of the big companies you don't play at all.
Tom Standage amusingly pointed out that if you get three geeks in a room you'll get 4 definitions of net neutrality - true! - and then launched into a entertaining radio friendly discourse on the concerns of people advocating net neutrality. He condensed those concerns into (a) big companies are too powerful and (b) governments are going to censor the net (c) geeks talking about the end to end principle (d) walled gardens and then said these were different discussions and dismissed net neutrality as the thing you invoke when something you don't like is happening on the Net. He suggests that each element be taken separately and for example take a legitimate concern like network operators engaging in discrimination and deal with it in a pretty obvious way by encouraging more competition.
He went on to say that the reason network services were so much better in Europe than the US was that competition was much better in Europe with dozens of available suppliers whereas there were only three big ISPs on the other side of the pond.
Tom and I then got into a discussion about what exactly he meant by competition - was it competition between applications providers, between network service suppliers, between content suppliers, device suppliers etc. - which didn't make it onto the airwaves. My final comment of that debate, which did make the final cut, was that I was less than impressed with the state of the competition between network providers in the UK since there were only about 6 main suppliers, most of which rented their lines from BT and my personal experience of switching suppliers had been painful.
Simon Cox invited Rupert Goodwins to comment then on whether competition was the key and he explained that it was part of it but the evolution of the market tends to lead to amalgamations and mergers and ultimately a small number of large companies in a virtual monopoly or duopoly situation. He went on to disagree with Tom Standage about net neutrality being too wide a term - "that's like saying freedom is too wide a term and that we should never argue about freedom". (Why can't I do soundbites like that?!). And that the basic principle that there should be open access where the people who provide the network services don't have control over what content is delivered is a very important foundation principle. And that's where the core of net neutrality lies.
Tom then came back and argued that that's fair enough but as soon as you try to write it down in law it gets difficult. The internet is not neutral now and there are lots of things we don't want to be neutral. For example it is desirable that spam is blocked or gamers might want superfast low latency broadband pipe that they would be prepared to pay extra for. The danger of saying things must stay as they are is that you fossilise the Internet in its current state and a simplistic net neutrality law might just do that - making illegal a lot of things that we already do and making things worse. So the best legislation in relation to net neutrality is none.
Rupert disagreed and said the law should specify that network operators have a duty to provide a level of access and include sanctions if that service is not up to scratch.
In the segment broadcast Simon Cox then wound up the discussion noting we could have continued for much longer. In the recording studio he had asked me for a final comment which understandably didn't make the final cut due to the time constraints on the programme. Essentially I just said that whether you were looking towards a future of dynamic competition as Tom favoured or net neutrality and an open net as Rupert was arguing, it needed to be backed up with a deep understanding of the complexities of the issues and a political commitment to deploy the resources required to address them. Sadly politicians are busy generalists and don't do deep.
As a radio pundit I should probably stick to blogging, teaching, writing or just listening. I found myself agreeing with a lot of what both Tom Standage and Rupert Goodwins were saying. I would be interested to know if Tom really believes net neutrality is 'silly' or he's just using that as a rhetorical trick to emphasise his concern that writing a net neutrality law that is balanced is a very difficult thing to do. If the latter then I agree it is difficult and it could be damaging if it was done carelessly or got moulded by the conventional lobbying processes into an inappropriate form. But saying that some groups invoke net neutrality as a cure for the things they don't like on the internet and that writing a net neutrality law is difficult don't necessarily come together to mean that net neutrality is silly.
As James Boyle says, lots of people have different definitions of "the environment" but just because it is hard to define doesn't mean it is 'silly' or not useful. If anything that abstract, ill-defined concept of the environment is an articulation of a shared interest that brings that interest - the environment - into being. The duck hunter and the bird watcher might not like each other but the both have a shared interest in protection the birds' ecology.
Thanks to Simon Cox, Tom Standage and Rupert Goodwins - I enjoyed the discussion in the studio - and to Click On series producer, Monise Durrani, for the invitation.
We then went on to have a wide ranging discussion during which I displayed the standard academic's curse of trying to explain the complexity of the issue, Tom Standage was very entertaining on how he thought the concept of net neutrality was 'silly' and Rupert Goodwins made the points I was trying to make but in a much more accessible way for a radio audience.
Simon Cox invited me to begin the discussion by setting some of the background and the history. I explained that the Net kinda grew by accident and there were a couple of key things that facilitated that:
1. General purpose computers - which can be programmed to do anything and are not controlled (post sale) by the vendor/manufacturer
2. The open network - which was open to everyone not just trusted sources like the BBC
I also explained that it grew on the back of the telephone network originally and before governments or telcos really noticed. So all of this - the general purpose computers, the open network and the lack of control led to an explosion of commercial, social and cultural creativity. Enterprises like Amazon, the World Wide Web itself, Wikipedia, Google, Facebook etc. grew. And because of the absence of concentrated control of the platforms or network none of the instigators of these entities had to ask anyone for permission. No permission was required.
Now, however, governments and commerce are both very much aware of the net and energetically attempting to assert control over it. These combined forces are leading to a closing down of the Net and an evolution towards a future of fragmentation (walled gardens and national firewalls) and control. That in turn kills the facilty for innovation and creativity which should have us asking where the next Google or Web is coming from.
Rupert Goodwin then went on to explain some of the commercial forces involved - how, for example, when network owners also have an interest in content they naturally try to cut out competitors and keep people in walled gardens and that's why net neutrality is important. So there is a very very strong commercial impetus to break the internet. People with great ideas in back bedrooms will be shielded out and we'll be back in the bad old days where if you don't play the game of the big companies you don't play at all.
Tom Standage amusingly pointed out that if you get three geeks in a room you'll get 4 definitions of net neutrality - true! - and then launched into a entertaining radio friendly discourse on the concerns of people advocating net neutrality. He condensed those concerns into (a) big companies are too powerful and (b) governments are going to censor the net (c) geeks talking about the end to end principle (d) walled gardens and then said these were different discussions and dismissed net neutrality as the thing you invoke when something you don't like is happening on the Net. He suggests that each element be taken separately and for example take a legitimate concern like network operators engaging in discrimination and deal with it in a pretty obvious way by encouraging more competition.
He went on to say that the reason network services were so much better in Europe than the US was that competition was much better in Europe with dozens of available suppliers whereas there were only three big ISPs on the other side of the pond.
Tom and I then got into a discussion about what exactly he meant by competition - was it competition between applications providers, between network service suppliers, between content suppliers, device suppliers etc. - which didn't make it onto the airwaves. My final comment of that debate, which did make the final cut, was that I was less than impressed with the state of the competition between network providers in the UK since there were only about 6 main suppliers, most of which rented their lines from BT and my personal experience of switching suppliers had been painful.
Simon Cox invited Rupert Goodwins to comment then on whether competition was the key and he explained that it was part of it but the evolution of the market tends to lead to amalgamations and mergers and ultimately a small number of large companies in a virtual monopoly or duopoly situation. He went on to disagree with Tom Standage about net neutrality being too wide a term - "that's like saying freedom is too wide a term and that we should never argue about freedom". (Why can't I do soundbites like that?!). And that the basic principle that there should be open access where the people who provide the network services don't have control over what content is delivered is a very important foundation principle. And that's where the core of net neutrality lies.
Tom then came back and argued that that's fair enough but as soon as you try to write it down in law it gets difficult. The internet is not neutral now and there are lots of things we don't want to be neutral. For example it is desirable that spam is blocked or gamers might want superfast low latency broadband pipe that they would be prepared to pay extra for. The danger of saying things must stay as they are is that you fossilise the Internet in its current state and a simplistic net neutrality law might just do that - making illegal a lot of things that we already do and making things worse. So the best legislation in relation to net neutrality is none.
Rupert disagreed and said the law should specify that network operators have a duty to provide a level of access and include sanctions if that service is not up to scratch.
In the segment broadcast Simon Cox then wound up the discussion noting we could have continued for much longer. In the recording studio he had asked me for a final comment which understandably didn't make the final cut due to the time constraints on the programme. Essentially I just said that whether you were looking towards a future of dynamic competition as Tom favoured or net neutrality and an open net as Rupert was arguing, it needed to be backed up with a deep understanding of the complexities of the issues and a political commitment to deploy the resources required to address them. Sadly politicians are busy generalists and don't do deep.
As a radio pundit I should probably stick to blogging, teaching, writing or just listening. I found myself agreeing with a lot of what both Tom Standage and Rupert Goodwins were saying. I would be interested to know if Tom really believes net neutrality is 'silly' or he's just using that as a rhetorical trick to emphasise his concern that writing a net neutrality law that is balanced is a very difficult thing to do. If the latter then I agree it is difficult and it could be damaging if it was done carelessly or got moulded by the conventional lobbying processes into an inappropriate form. But saying that some groups invoke net neutrality as a cure for the things they don't like on the internet and that writing a net neutrality law is difficult don't necessarily come together to mean that net neutrality is silly.
As James Boyle says, lots of people have different definitions of "the environment" but just because it is hard to define doesn't mean it is 'silly' or not useful. If anything that abstract, ill-defined concept of the environment is an articulation of a shared interest that brings that interest - the environment - into being. The duck hunter and the bird watcher might not like each other but the both have a shared interest in protection the birds' ecology.
Thanks to Simon Cox, Tom Standage and Rupert Goodwins - I enjoyed the discussion in the studio - and to Click On series producer, Monise Durrani, for the invitation.
Friday, October 08, 2010
The BBC: an open and shut case of corporate schizophrenia?
I've just scanned (health warning - I mean just scanned, I haven't read the response in any depth yet, so may have missed something obvious) the BBC's publicly available response to the Ofcom consultation on net neutrality. It's full of sensible arguments about why the Net should be kept open e.g.
Just a small request, since I know how things work in large organisations and it is entirely possible that they don't know each other - could someone at the BBC please introduce the team who drafted the demand for openness and net neutrality to the team who drafted the demand for DRM on BBC and Freeview HD? I do firmly believe the unwielding advance and malignant growth of bureaucracy leads to endemic corporate schizophrenia in all large organisations but it can be cathartic to at least give the individuals caught up in it an opportunity to defend their positions.
"The open and ‘neutral’ character of the internet is considered by many to have been a key driver of its growth and success to date. However, technological developments and the growth in the volumes of traffic passing over the internet pose challenges to this character. Undue blocking and degradation of traffic is already taking place. In this environment, to ensure the effective operation of the internet, consistent as far as possible with the principle of openness and neutrality, we need to have in place a clear, robust framework...
In our view, discriminating traffic by content provider or origin will distort competition and deviate from the end-to-end principle which is at the core of the open and neutral character of the internet...
The BBC believes there are clear incentives for anti-competitive behaviour to arise if unconstrained traffic management is permitted. At a basic level, allowing network operators to discriminate against certain types of content creates an additional entry cost for content and service providers. In the long-term this could prevent innovation and in turn restrict consumer choice. Furthermore, there is a real risk that ‘managed services’ could create an incentive for ISPs to ensure access remains scarce, thereby disincentivising further investment in next generation services."I just wonder how they can square that call for openness with their 'confidential' response to the Ofcom consultation on attaching DRM digital locks to the BBC HD signal? The BBC's secret response was a key cornerstone of Ofcom's approval the BBC's application to add DRM restrictions to their HD signal.
Just a small request, since I know how things work in large organisations and it is entirely possible that they don't know each other - could someone at the BBC please introduce the team who drafted the demand for openness and net neutrality to the team who drafted the demand for DRM on BBC and Freeview HD? I do firmly believe the unwielding advance and malignant growth of bureaucracy leads to endemic corporate schizophrenia in all large organisations but it can be cathartic to at least give the individuals caught up in it an opportunity to defend their positions.
Web blocking: an excuse for inaction on child protection
Joe McNamee of European Digital Rights gave a quietly passionate and compelling talk at the European Parliament's hearing on child exploitation, at the end of September, on why website blocking does not work and is actually counterproductive, dangerous and stupid.
Tuesday, October 05, 2010
Doctorow: the real cost of free
Cory Doctorow is in fine form again in today's Guardian, responding to a fellow Guardian columnist Helienne Lindvall's claims about him charging 'hefty fees' of up to $25,000 for speaking engagements. For the record Cory points out that he's done nearly 100 public appearances in the past 6 months most for free, 11 of which earned him a fee, the highest individual fee being £300. The power of the piece comes not from the clinical dissection of unfounded allegations, however, but from the accessible and powerful summary of the state of the intellectual property wars. Highly recommended reading.
"I don't care if you want to attempt to stop people from copying your work over the internet, or if you plan on building a business around this idea. I mean, it sounds daft to me, but I've been surprised before.
But here's what I do care about. I care if your plan involves using "digital rights management" technologies that prohibit people from opening up and improving their own property; if your plan requires that online services censor their user submissions; if your plan involves disconnecting whole families from the internet because they are accused of infringement; if your plan involves bulk surveillance of the internet to catch infringers, if your plan requires extraordinarily complex legislation to be shoved through parliament without democratic debate; if your plan prohibits me from keeping online videos of my personal life private because you won't be able to catch infringers if you can't spy on every video...
So yeah, if you want to try to control individual copies of your work on the internet, go ahead and try. I think it's a fool's errand, and so does almost every technical expert in the world, but what do we know?
But for so long as this plan involves embedding control, surveillance and censorship into the very fabric of the information society's infrastructure, I'll continue to tour the world, for free, spending every penny I have and every ounce of energy in my body to fight you.
Helienne, I can't fault you for not reading my Guardian columns; after all, I've never read yours. And while I do fault you for not correcting the record, I won't ask the Guardian's reader's editor to intervene or make silly, chiropractor-esque noises about libel. I'm a civil libertarian, and I have integrity, and I believe that the answer to bad speech is more speech, hence this column...
You know who peddles false hope to naive would-be artists? People who go around implying that but for all those internet pirates, there'd be full creative employment for all of us. That the reason artists earn so little is because our audiences can't be trusted, that once we get this pesky internet thing solved, there'll be jam tomorrow for everyone. If you want to damn someone for selling a bill of goods to creative people, go after the DRM vendors with their ridiculous claims about copy-proof files; go after the labels who say that wholesale lawsuits against fans on behalf of artists (where labels get to pocket the winnings) are good business; go after the studios who are suing to make it impossible for anyone to put independent video on the internet without a giant corporate legal budget...
It's been 15 years since the US National Information Infrastructure hearings kicked off the digital copyright wars. And for all the extraordinary power grabbed by the entertainment giants since then, the letters of marque and the power to disconnect and the power to censor and the power to eavesdrop, none of it is paying artists. Those who say that they can control copies are wrong, and they will not profit by their strategy. They should be entitled to ruin their own lives, businesses and careers, but not if they're going to take down the rest of society in the process."
Response to EU consultation on net neutrality
I've responded to the EU consultation on the open internet and net neutrality. I partly re-iterate and partly expand on the response made to Ofcom on the same matter recently. Copy of the response below.
That issue of the construction of super fast broadband infrastructure is a key one. There is a serious need for private and public sector investment in broadband infrastructure. Yes the EU is experiencing some tough economic conditions but there is an argument to be made that in times of economic duress, (according to John Maynard Keynes in 'General Theory of Employment Interest and Money'), that is precisely the time we should be investing in further economic and society enhancing infrastructure. In simple terms, paying one person to dig a hole, another to stick fibre optic cable in it and yet another to fill it in could be one way to help the economy out of recession.
It is possible that until we can get a decent universal broadband infrastructure in place it may be incumbent on the regulator to find some way of guaranteeing minimum QoS in relation to the operation of and access to essential services. But how that might be done in practice is a difficult question to answer. As I said in answer to question 3 above - measurement of actual operations and net user harm is complex and the temptation would be for an independent auditor (NRA?) to measure metrics which are easy to measure rather than those that provide truly informative indicators of sector practice. Then enforcement of minimum standards absent adequate knowledge of actual service levels becomes extremely problematic.
As Jack Osterman of AT&T said in the 1960s regarding Paul Baran's packet switching ideas: "First it can't possibly work, and if it did, damned if we are going to allow the creation of a competitor to ourselves."
Though direct independent empirical evidence that traffic management will have a negative impact on innovation is in short supply, there is evidence, across a range of sectors, however, that incumbents will act to protect their market position from competition and new entrants.[6]
And whilst I don't really wish to focus on or particularly criticise AT&T, the Hush a Phone case[7] is the classic illustration in the telecoms sector that even when an innovator provides no threat to the incumbent monopoly that incumbent may well be prepared to act in a way that crushes innovation.
1) in creating (and investing in) an environment that will create incentives for the construction of a superfast broadband infrastructure and
2) in ensuring that there is universal access to via that infrastructure to an open or neutral internet.
Ray Corrigan[1] response to DG Information Society and Media public consultation on the open internet and net neutrality
4.1. The open internet and the end-to-end principle
Question 1: Is there currently a problem of net neutrality and the openness of the internet in Europe? If so, illustrate with concrete examples. Where are the bottlenecks, if any? Is the problem such that it cannot be solved by the existing degree of competition in fixed and mobile access markets?
Yes there is a problem in Europe and no it cannot and is not being solved by existing competition. The framing of the problem (or what Russell L. Ackoff[2] might describe as a systemic mess) and what to do about it will be heavily influenced by the way that policy makers define the issue of net neutrality and what is meant by widely used but ill-defined terms like ‘competition’ in this context.
The net neutrality or end to end principle classically described by Saltzer, Reed and Clark[3] was a technical description of one of the central principles of internet architecture: that the network should remain ‘dumb’ and the ‘intelligence’ should reside in the devices at the ends of the network. Network owners should not be able to control the flow of communications packets or as is sometimes said by purists – ‘all bits are created equal’. What this means in real terms for internet users and policymakers is that the network was open to everyone – not just trusted or approved sources – and that there were four generic types of freedoms associated with it:
- Net users should be entitled to access any legal internet content they choose to access
- Net users should be able to run any applications on their general purpose computers or other devices or use any service they choose
- Net users should be able to connect any legal devices to the network without having to ask anyone’s permission – just as we can connect a toaster or a TV to the electricity network without requiring permission
- The network and the regulatory environment should facilitate ‘competition’ between network providers, application providers, service providers, content providers, device providers, network infrastructure investors/builders. But we have to be careful to understand what we mean by ‘competition’ in each of these different contexts
Net neutrality could loosely be argued to be the current state of affairs. However, the network is already sustaining more users that it was built for and those users’ effective demand for the facility of infinite bandwidth and zero latency is growing. Throttling and traffic management are standard practice (and given network congestion, necessarily so) amongst network operators and, for example, download speeds are up to 25 times higher than upload speeds. Changes in network and device architectures and information laws in a whole range of areas from anti-terrorism measures to intellectual property and ecommerce provisions mean items 1 to 3 above are under threat, if not already notably damaged. And although it is widely assumed that, for example, the UK broadband market is ‘competitive’, that supposed ‘competition’ is not leading to the widespread construction of superfast broadband infrastructure or preventing the common and misleading advertising by service providers about broadband speeds.
The explosion of social and cultural creativity and commercial innovation on the internet in the wake of Tim Berners Lee’s development of the World Wide Web was a function of the existence of
- general purpose computers – that could be programmed to do whatever the user wanted
- the open network
Because no one controlled the computers or what people could do on the network and no permission was required, a wave of creativity was released leading to enterprises like Amazon, Google, Napster, iTunes, Facebook, Wikipedia, Twitter, Yahoo pipes and (the main European contribution) Berners Lee’s world wide web itself. It may be instructive – I couldn’t say – that most of the commercial innovation success stories are US rather than EU based.
As we move increasingly into a world of locked down devices like the iPhone and an evolving oligopolistic/monopolistic environment of network operators with ‘intelligent’ networks, with the ability to discriminate built into the DNA of the network, policymakers in particular need to acutely alert to the potential impact of that concentrated level of control on
- basic human rights like privacy and freedom of speech – these are increasingly important as more and more of people lives are tied up with and invested in our online personas, digital shadows and personal digital data litter.
- social and cultural creativity
- innovation in services, devices, content, infrastructure – we may never know we would use the next Google or Wikipedia because we never get to experience it, if an incumbent operator denies the innovator access to the network or discriminates in such a way as to kill their innovation
James Boyle eloquently describes the net neutrality as the open road of the internet – a public utility which enhances the value of the property connected to and by it.[4] He also suggests that we generally have a serious cognitive limitation which causes us to fail to recognise the value of free, open or commons’ resources because the kind of freedom that leads to productive output on open networks is counter-intuitive. The success of non proprietary systems – ranging from open source software to Wikipedia and the open internet itself – fills us with surprise, a kind of collective "cultural agoraphobia."
The danger in that cultural agoraphobia is that it will lead us to fail to protect the open network we have had; and perhaps kill off a future innovation that might provide the future equivalent of a gay, Iraqi blogger ‘speaking’ to an audience of millions. Hence the burden on policymakers to be vigilant in this context is a heavy one with the essential need to maintain a focus on Commissioner Kroes’ key principles:
1. Freedom of expression but also privacy
2. Transparency
3. Infrastructure investment in efficient and open networks
4. Fair competition between network providers, application providers, service providers, content providers, device providers, network infrastructure investors/builders – competition that is clearly defined, properly regulated, monitored and enforced where necessary
5. Support for innovation and monitoring and prevention of discrimination against innovators
Question 2: How might problems arise in future? Could these emerge in other parts of the internet value chain? What would the causes be?
If the architecture of the network is such that discrimination is possible then discrimination will happen.
The fundamental incentive for discrimination, in this context, is the bottom line of the network operators. If network operators are considered to be rational economic actors then traffic that provides a decent proportionate return on costs will be favoured and traffic which shows insufficient financial returns or has a negative impact on the operators business will be discriminated against.
So, for example, the incentive will be to discriminate against high volume peer to peer traffic, competitors traffic where that can be identified as is possible with increasingly 'intelligent' networks, audio/video/gaming/VoIP on demand, high congestion inducing traffic of various kinds (e.g. high bandwidth, zero latency), and Net users engaging in communications which the network operator might disapprove off. This latter traffic spans the spectrum from nefarious criminal and cybervandalism activities at one end of the scale to legitimate political and other speech (e.g. perhaps simple criticism of telcos) at the other end of the scale. There is evidence from the US that some filter software companies, for example, blocked websites that were critical of filter software.[5] In addition there are obvious incentives for network operators to provide priority to traffic from partner/contractually linked organisations.
Question 3: Is the regulatory framework capable of dealing with the issues identified,
including in relation to monitoring/assessment and subsequent enforcement?
That’s a difficult question. If you’re operating a typical EU co-regulatory approach including NRA monitoring and agreed industry codes, assessment of published documents, from the NRA or industry, pertaining to network operators' required operating procedures is relatively straightforward. Actually ensuring operators are following the letter and the spirit of the required standards is more difficult. Measurement of actual operations and net user harm is complex and the temptation would be for an independent auditor (NRA?) to measure metrics which are easy to measure rather than those that provide truly informative indicators of sector practice. The difficulty in measuring market/consumer/citizen/net user/societal harm, in ways that will provide valuable insights, is potentially intractable.
This consultation sensibly calls for evidence to provide guidance on how to move forward on the regulation of net neutrality and traffic management. Whilst that is an admirable approach - I'm all for evidence based policymaking, something which seems all too rare in recent times - there is a remarkable lack of hard empirical evidence to guide policy on net neutrality. That tells us two things. Firstly we should be investing quickly in much more empirical research to inform policy. Secondly we should be making policy decisions only at a general principle level - e.g. an overriding principle to guarantee an open network for example – until we have gathered sufficient robust evidence to inform more detailed policy decisions.
4.2. Traffic management/discrimination
Question 4: To what extent is traffic management necessary from an operators' point of view? How is it carried out in practice? What technologies are used to carry out such traffic management?
Until we can cut the Gordian knot on large scale investment - from the public and private sectors – in universal super fast broadband infrastructure, congestion problems are going to be ever present and increasing; and traffic management will continue to be essential from an operator’s point of view.
Independent empirical research is required on how this is done in practice and on the technologies involved.
Question 5: To what extent will net neutrality concerns be allayed by the provision of transparent information to end users, which distinguishes between managed services on the one hand and services offering access to the public internet on a 'best efforts' basis, on the other?
Transparency on traffic management whilst very important is never going to be enough on its own. Understanding their internet connection is being throttled during times of congestion does not give the internet user the power or the tools to do anything about it, particularly if there is no open network alternative available at a reasonable cost.
Question 6: Should the principles governing traffic management be the same for fixed and mobile networks?
Ultimately yes. There are significant technical challenges to overcome and congestion problems are acute, but if we ever get to a point where there is a universally accessible wired and wireless superfast broadband infrastructure, there is no reason to apply different principles dependant on mode of access.
Why did Google get accused recently of doing an apparent u-turn on their stance on net neutrality in reaching an agreement with Verizon? Well Google are betting on a big future for wireless as well as wired networks. And in the wireless world where they are competing with the highly controlled architecture of the iPhone, the most important thing for Google is that the platforms stay open (i.e. Android based) and Verizon is an important partner to have in that endeavour.
Market forces will dictate that the large incumbents, as rational economic actors, will do deals in their own interests and those interests may or may not line up with the interests of Net users generally, in relation to the four freedoms of net neutrality specified in my answer to question 1 above. The – admittedly complex – task for regulators is to create an environment where the economic externalities are such that the interests of the incumbents, as far as possible, can be made to line up with those of net users.
Question 7: What other forms of prioritisation are taking place? Do content and application providers also try to prioritise their services? If so, how – and how does this prioritisation affect other players in the value chain?
There is a desperate need for robust independent research on this and little or no direct empirical evidence on content and application providers practices at the moment.
Question 8: In the case of managed services, should the same quality of service conditions and parameters be available to all content/application/online service providers which are in the same situation? May exclusive agreements between network operators and content/application/online service providers create problems for achieving that objective?
Should the same QoS be available to all? Yes. Will it? No. Without a non-discrimination principle, exclusive agreements between network operators and content/application/online service providers and subsequent discrimination to the detriment of parties not included in such agreements will be a natural emergent property of market forces.
Question 9: If the objective referred to in Question 8 is retained, are additional measures needed to achieve it? If so, should such measures have a voluntary nature (such as, for example, an industry code of conduct) or a regulatory one?
The non discrimination principle requires regulatory authority if it is to have any effect.
4.3. Market structure
Question 10: Are the commercial arrangements that currently govern the provision of access to the internet adequate, in order to ensure that the internet remains open and that infrastructure investment is maintained? If not, how should they change?
Large scale investment in infrastructure construction is a potentially risky venture for any economic actor unless they have the subsequent power to control, monetise and derive a rapid payback and significant return on that investment once the superfast network has been built. Neelie Kroes asked, in her Net neutrality in Europe Address at the ARCEP Conference,
“Would the bottlenecks and other problems disappear if we manage to foster investment in new and open networks?”
And
“Would regulation promoting more infrastructure competition be reason enough to bring a lighter touch to net neutrality?”
We should also be asking how do we foster investment in infrastructure and what does “infrastructure competition mean?
There is little evidence of the universal construction of superfast broadband infrastructure. Likewise the use of words like 'competition' or 'competitive' also more often confuse rather than enlighten the debate as these words come with certain underlying assumptions and hide a raft of complexity beneath the surface. For example the UK broadband market (fixed and wireless) is considered competitive but what does that really mean? A ‘consumer’ can choose one of a range of ISPs who control the switch at their local exchange or alternatively a hybrid cable operator like Virgin, (if Virgin happens to have cable in that locality). So in reality the net services are still travelling down the same potentially noisy unreliable ISDN line whichever ISP the customer is paying; and switching in practice, if someone can brave that particular minefield (I have and it was painful), may have very little effect on quality of service. Regardless of the ISP claiming ‘up to 10M’ if you’re 2 miles from the exchange the best you’ll get on that line with any of the ISPs controlling the switch in the exchange is 3M. One of the assumptions flowing from the idea that the market is competitive is that consumers will make informed choices – a big assumption. Another big assumption, in a supposedly competitive market, is that incumbent suppliers will have an incentive to invest in high speed infrastructure to generate a competitive advantage. But the kind of competition we have in the UK is demonstrably not leading to universal superfast infrastructure construction, although companies like BT and Virgin are starting to make fibre optic infrastructure available in densely populated areas.
We cannot blame the network operators for engaging in rational economic actor behaviour in this respect, as David Isenberg and David Weinberger explain in ‘The Paradox of the Best Network’, http://netparadox.com/ Fundamentally it is too risky for a network operator to invest large amounts of capital in infrastructure if they are not going to be able to guarantee they have control of that infrastructure in a way that will facilitate a reasonably rapid payback period and a significant and durable return on investment and operations.
That issue of the construction of super fast broadband infrastructure is a key one. There is a serious need for private and public sector investment in broadband infrastructure. Yes the EU is experiencing some tough economic conditions but there is an argument to be made that in times of economic duress, (according to John Maynard Keynes in 'General Theory of Employment Interest and Money'), that is precisely the time we should be investing in further economic and society enhancing infrastructure. In simple terms, paying one person to dig a hole, another to stick fibre optic cable in it and yet another to fill it in could be one way to help the economy out of recession.
4.4. Consumers – quality of service
Question 11: What instances could trigger intervention by national regulatory authorities in setting minimum quality of service requirements on an undertaking or undertakings providing public communications services?
It is difficult to see how NRAs can specify, monitor or enforce minimum QoS requirements prior to the deployment of a universally accessible, open, superfast broadband infrastructure. Until then minimum QoS will have to be so low as to be useless or a minimum standard that network operators can't meet in practice during congested periods, unless specific forms of traffic are allocated regulatory priority which is probably unrealistic.
It is possible that until we can get a decent universal broadband infrastructure in place it may be incumbent on the regulator to find some way of guaranteeing minimum QoS in relation to the operation of and access to essential services. But how that might be done in practice is a difficult question to answer. As I said in answer to question 3 above - measurement of actual operations and net user harm is complex and the temptation would be for an independent auditor (NRA?) to measure metrics which are easy to measure rather than those that provide truly informative indicators of sector practice. Then enforcement of minimum standards absent adequate knowledge of actual service levels becomes extremely problematic.
Question 12: How should quality of service requirements be determined, and how could they be monitored?
This is something of a moot point for the reasons outlined in my answer to the previous question but monitoring and ensuring operators comply with minimum QoS standards is extremely difficult in practice.
Question 13: In the case where NRAs find it necessary to intervene to impose minimum quality of service requirements, what form should they take, and to what extent should there be co-operation between NRAs to arrive at a common approach?
There is no easy answer to this question. I would say that should an NRA find a pragmatic way forward on this in the context of their own member state then the need for cooperation between NRAs to arrive at a common approach should be a secondary consideration.
Question 14: What should transparency for consumers consist of? Should the standards currently applied be further improved?
One simple first step is the banning of advertising promising “unlimited” downloads and “up to” speeds. In addition, before thinking about further improving current standards on transparency more work is needed in enforcing current standards. Customers should be made clearly aware of maximum achievable speeds, capacity limits, minimum QoS and traffic management practices. Serious thought is required on how to communicate these to consumers in a way which is clear and accessible. The facility to act on that information, however, is dependent on the network user having access to an effective range of affordable competitive options including network operators who offer a neutral (or open) network facility, something not currently available in the UK (despite the fact that the UK is perceived as having a 'competitive' market)
Question 15: Besides the traffic management issues discussed above, are there any other concerns affecting freedom of expression, media pluralism and cultural diversity on the internet? If so, what further measures would be needed to safeguard those values?
There are serious concerns about freedom of expression, media pluralism and cultural diversity on the internet when the environment is such that the controls of the information flows on the net fall into the hands of an evolving oligopolistic marketplace; and when governments of all hues are concerned with monitoring and controlling such information flows. Parallel monopolistic and/or oligopolistic market environments, combined with network architectures facilitating control, will make censorship more likely and media pluralism and cultural diversity on the internet less so. It is easy enough to identify regimes like Iran, China and Saudi Arabia which have shown a propensity to engage in censorship by building the tools of censorship into their networks. However, laws in the UK, EU, US and a range of other Western democracies require surveillance capability to be built into our communications networks, large scale data retention and the construction of large databases of personal information, all in the name of combating terrorism, crime or protecting children and intellectual property. Wide scale censorship of the Net takes place not just in China and Saudi Arabia but in the UK, parts of the US, Canada, Spain, France, Australia, Germany and many other countries in an attempt to block such horrors as child pornography or Nazi propaganda. Arguably the censorship provisions of the UK’s Digital Economy Act 2010 facilitate the building of a great firewall of the UK every bit as intimidating as the great firewall of China. Net neutrality is crucially important in the context of media pluralism and cultural diversity but arguably a greater threat to both is the current and evolving state of intellectual property laws.
4.6. Any other issues
Although I have responded to all the questions in the consultation it doesn't seem as if I've even scratched the surface of the complexities involved in this issue. So there were just a number of extra short points I would wish to make.
Firstly for anyone involved in net neutrality policy, Chris Marsden's book, Net Neutrality: Towards a Co-regulatory Solution (Bloomsbury Academic, 2010) is essential reading. It is a coherent book-length argument about a generic regulatory approach to net neutrality which encompasses many of the nuances and complexities of the subject matter it is impossible to include in a short consultation response.
Secondly I am concerned at the degree to which standard terms like 'consumer', 'competition' and 'transparency' often get misunderstood, unintentionally mislead and obscure some of the complexities underlying the whole area of net neutrality. Achieving transparency or consumer satisfaction can often be seen as ends in themselves in the debate; when they can't come anywhere close to addressing the wider needs society or the marketplace might have in relation to the Net. In an information society, the default rules of the road are the information laws and the architectures of our information technologies and networks. That makes network operators potentially the key chokepoints for the implementation, operation and some would argue (though I would fundamentally disagree) policing and enforcement of those information rules of the road. So the debate is much more important than whether BT or TalkTalk can provide cheaper and transparent access to a 'consumer' to the same local loop.
So instead of terms like 'consumer' which can hide a huge range of varying stakeholder interests we should probably use terms like 'net users' which more clearly imply a range of stakeholders which spans the spectrum of consumers, citizens, creators, artists, innovators, businesses etc. - the whole gamut of the economy and society.
Thirdly and surprisingly given Neelie Kroes emphasis on the need to support innovation, there are no explicit questions in the consultation relating to innovation and the internet; and in particular whether traffic management might have a detrimental impact on innovation. It can be presumed that in the case of innovations that might be perceived to threaten network operators' positions the network operators will act to inhibit that innovation.
As Jack Osterman of AT&T said in the 1960s regarding Paul Baran's packet switching ideas: "First it can't possibly work, and if it did, damned if we are going to allow the creation of a competitor to ourselves."
Though direct independent empirical evidence that traffic management will have a negative impact on innovation is in short supply, there is evidence, across a range of sectors, however, that incumbents will act to protect their market position from competition and new entrants.[6]
And whilst I don't really wish to focus on or particularly criticise AT&T, the Hush a Phone case[7] is the classic illustration in the telecoms sector that even when an innovator provides no threat to the incumbent monopoly that incumbent may well be prepared to act in a way that crushes innovation.
Fourthly there is a dearth of independent empirical evidence generally informing the debate on net neutrality. The whole question of the impact of congestion, traffic management, investment (or lack of it) in infrastructure, QoS on net users and the whole value chain would be complicated enough if we did have the evidence to begin to make some rational judgements on balancing the needs of the various stakeholders. Without comprehensive, solid, independent, empirical data on industry practices and their real impacts, we can only guess at the necessary policies and the temptation might be to operate a light touch on net neutrality. Some stakeholders and commentators will approve of such a light touch. Others (eg Lessig[8]) would suggest that net neutrality may be doomed in the absence of appropriate regulatory framework. In the absence of a market environment encouraging the competitive construction of superfast infrastructure I lean towards Lessig’s perspective but without robust empirical research it is difficult to be confident.
Finally, we should be looking, as a matter of policy principle, at guaranteeing, in the long term, universal access to an open or neutral internet. Internet access, in the EU, is a fundamental part of access to education, essential services, employment, business operations, as well as simple entertainment or online retailing. The regulatory principles governing the internet therefore become crucial to the future of our society and economy in ways that we would not have conceived of a mere 20 years ago. Given its importance now, though, the key priorities for the EU Commission should be:
1) in creating (and investing in) an environment that will create incentives for the construction of a superfast broadband infrastructure and
2) in ensuring that there is universal access to via that infrastructure to an open or neutral internet.
[1] Senior Lecturer in Maths, Computing & Technology, The Open University, UK.
[2] Ackoff, R.L. (1999) Ackoff's Best: His Classic Writings on Management Wiley, New York
[3] J.H. Saltzer, D.P. Reed and D.D. Clark (1981, 1984) End to end arguments in system design Second International Conference on Distributed Computing Systems, pages 509-512, April 1981. ACM Transactions on Computer Systems, 2(4), pages 277-288, 1984
[4] Boyle, J (2010) The Public Domain: Enclosing the Commons of the Mind. Yale University Press. New Haven & London
[5] See for example Wallace, J and Mangan, M. (1997) Sex Laws and Cyberspace: Freedom and Censorship on the Frontiers of the Online Revolution. Henry Holt and Company, New York.
See also http://www.peacefire.org/censorware/ and http://sethf.com/anticensorware/
[6] See for example, Clayton, C. (1997) The Innovator's Dilemma: When New Technologies Cause Great Firms to Fail, Harvard Business School Press, Boston. Also Jaffe, A and Lerner, J. (2006) Innovation and Its Discontents, Princeton University Press, New Jersey, Oxford
[7] Hush-A-Phone v. United States, 238 F.2d 266 (DC Cir. 1956)
[8] Lessig, L (2006) Code and Other Laws of Cyberspace Version 2.0 Basic Books, New York
Wednesday, September 29, 2010
Ofcom conducting internal review on my FOI on BBC DRM
I've had a holding response from Ofcom to say they are going to conduct an internal review on my follow up BBC DRM freedom of information request. I hadn't formally asked for an official internal review but I assume my request to reconsider releasing the withheld information could have been interepreted as such.
"Dear Mr Corrigan
Freedom of Information: Internal review
Thank you for your email dated 28 September (see below) to Ofcom asking for a review of our decision in relation to your request for information.
The review will be conducted under the supervision of the Secretary to the Corporation. While there is no statutory deadline for completing internal reviews, we aim to respond within 20 working days. Please contact me at [Ofcom request email] if you have any queries, remembering to quote the reference number 1-155429914.
Yours sincerely
Mauzima Bhamji"
Tuesday, September 28, 2010
Follow up to Ofcom on BBC DRM
I've sent a follow up note to Ofcom asking them to reconsider disclosing the key information they have withheld when responding to my freedom of information request on the BBC HD DRM decision. I've suggested the claimed exemptions under sections 41 and 44 of the Freedom of Information Act and section 393(1) of the Communications Act don't apply and that they have an obligation to disclose. I was tempted but refrained from reminding them that the Communications Act 2003, Part 1, section 3, outlines the General duties of OFCOM as follows:
(1) It shall be the principal duty of OFCOM, in carrying out their functions—
(a) to further the interests of citizens in relation to communications matters; and
(b) to further the interests of consumers in relevant markets, where appropriate by promoting competition.
And that they appear to be failing in these duties when it comes to the BBC HD DRM decision.
Copy of my follow up note below.
Freedom of Information: Right to know request 1-155429914
Thank you for your response to my freedom on information request
relating to the Ofcom consultation 'Content Management on the HD
Freeview platform' and in particular the full response to section
(b) and partial information supplied in connection with sections
(c) and (d) of my request.
You have, however, withheld key information relating to sections
(a) and similarly in relation to sections (c) and (d) of my
request, suggesting it falls under exemptions provided by Section
41 and Section 44 of the Freedom of Information Act and Section
393(1) of the Communications Act 2003.
In relation to Section 41, you will be aware and s2.3 of the full
exemptions guidance on how s41 should be interpreted says:
"2.3 This exemption only applies if a breach of confidence would be
"actionable". A breach of confidence will only be "actionable" if a
person could bring an action and be successful. The courts have
recognised that a person will not succeed in an action for breach
of confidence if the public interest in disclosure outweighs the
public interest in keeping the confidence."
So the courts have recognised that there is a public interest test
in relation to Section 41 exemptions, despite your advice to the
contrary. It is my contention that the disclosure of the arguments
of the BBC, Channel 4 and ITV in favour of DRM would be in the
public interest and would significantly outweigh the interest in
keeping the confidence. After all, if the confidential claims are
in the public interest and so compelling as to be a key factor in
Ofcom's decision to approve HD DRM, (as stated by Ofcom in your
decision to approve Freeview HD DRM in June 2010) how can the
public be harmed by having access to and understanding these
arguments; and the detailed efforts the broadcasters are making on
our behalf?
On the question of your claim of exemption from disclosure under
Section 44 of the Act, as I understand it, you are claiming the
protection of s41(1)(a) i.e. prohibition from disclosure under an
existing Act, the Communications Act 2003, and specifically Section
393(1) of the latter Act. Section 393(1) does indeed appear to
prevent the disclosure of information obtained about a business.
However, Section 393(2)(a) of the Communications Act 2003 says:
"(2) Subsection (1) does not apply to any disclosure of information
which is made—
(a) for the purpose of facilitating the carrying out by OFCOM of
any of their functions;"
So s393(1) does not apply to Ofcom in carrying out its functions.
In addition Section 393(6) of the Communications Act 2003 says
"6) Nothing in this section—
(a) limits the matters that may be published under section 15, 26
or 390;
(b) limits the matters that may be included in, or made public as
part of, a report made by OFCOM by virtue of a provision of this
Act or the Office of Communications Act 2002 (c. 11);
(c) prevents the disclosure of anything for the purposes of a
report of legal proceedings in which it has been publicly
disclosed;
(d) applies to information that has been published or made public
as mentioned in paragraphs (a) to (c)."
So Section 393 cannot be used to limit matters included in an Ofcom
report. As a matter of interest, section 15 relates to Ofcom's duty
to publish and take account of research; Section 26 relates to
Ofcom's publication of information and advice for consumers; both
of which arguably relate to the Freeview DRM decision.
In relation to the information supplied, I fully understand and
support your decision to redact some of the information therein
based on Section 40 of the Act which relates to personal
information.
So thank you for the information you have supplied but I would ask
you to reconsider disclosing the information you have withheld
relating to sections (a), (b) and (c) of my original freedom of
information request. Given the balance of public interest test
required under section 41 of the Freedom of Information Act and the
claimed exemption under Section 44 being negated in particular by
section 393(2) of the Communications Act 2003, I would respectfully
suggest Ofcom has an obligation to disclose this information.
So just to be clear on the request, I have repeated the original
(a), (c) and (d) requests below:
(a) A full copy, including the redacted sections noted on page 1
and 7, of the 'BBC response to Ofcom consultation of 22 January
2010
http://stakeholders.ofcom.org.uk/binarie...
(c) Details supplied by Channel 4, not part of its formal response
to the consultation
http://stakeholders.ofcom.org.uk/binarie...
relating to specific content which, in its view, may be at risk in
the future if content management is not introduced and also those
titles which it believes are currently sensitive.
Note specifically in relation to (c): I would request the withheld
attachment to the email correspondence from Channel 4 to Ofcom.
(d) A full copy of ITV communications with Ofcom relating to
'Content management on the HD Freeview platform'.
Note specifically in relation to (d): I would request the withheld
attachment to the email correspondence from ITV Plc to Ofcom.
Thank you for your time and attention and I look forward to hearing
from you further on this matter.
Yours sincerely,
Ray Corrigan
(1) It shall be the principal duty of OFCOM, in carrying out their functions—
(a) to further the interests of citizens in relation to communications matters; and
(b) to further the interests of consumers in relevant markets, where appropriate by promoting competition.
And that they appear to be failing in these duties when it comes to the BBC HD DRM decision.
Copy of my follow up note below.
To: Julia Fraser
Subject: Re: Your Ofcom enquiry
Dear Ms Fraser,Subject: Re: Your Ofcom enquiry
Freedom of Information: Right to know request 1-155429914
Thank you for your response to my freedom on information request
relating to the Ofcom consultation 'Content Management on the HD
Freeview platform' and in particular the full response to section
(b) and partial information supplied in connection with sections
(c) and (d) of my request.
You have, however, withheld key information relating to sections
(a) and similarly in relation to sections (c) and (d) of my
request, suggesting it falls under exemptions provided by Section
41 and Section 44 of the Freedom of Information Act and Section
393(1) of the Communications Act 2003.
In relation to Section 41, you will be aware and s2.3 of the full
exemptions guidance on how s41 should be interpreted says:
"2.3 This exemption only applies if a breach of confidence would be
"actionable". A breach of confidence will only be "actionable" if a
person could bring an action and be successful. The courts have
recognised that a person will not succeed in an action for breach
of confidence if the public interest in disclosure outweighs the
public interest in keeping the confidence."
So the courts have recognised that there is a public interest test
in relation to Section 41 exemptions, despite your advice to the
contrary. It is my contention that the disclosure of the arguments
of the BBC, Channel 4 and ITV in favour of DRM would be in the
public interest and would significantly outweigh the interest in
keeping the confidence. After all, if the confidential claims are
in the public interest and so compelling as to be a key factor in
Ofcom's decision to approve HD DRM, (as stated by Ofcom in your
decision to approve Freeview HD DRM in June 2010) how can the
public be harmed by having access to and understanding these
arguments; and the detailed efforts the broadcasters are making on
our behalf?
On the question of your claim of exemption from disclosure under
Section 44 of the Act, as I understand it, you are claiming the
protection of s41(1)(a) i.e. prohibition from disclosure under an
existing Act, the Communications Act 2003, and specifically Section
393(1) of the latter Act. Section 393(1) does indeed appear to
prevent the disclosure of information obtained about a business.
However, Section 393(2)(a) of the Communications Act 2003 says:
"(2) Subsection (1) does not apply to any disclosure of information
which is made—
(a) for the purpose of facilitating the carrying out by OFCOM of
any of their functions;"
So s393(1) does not apply to Ofcom in carrying out its functions.
In addition Section 393(6) of the Communications Act 2003 says
"6) Nothing in this section—
(a) limits the matters that may be published under section 15, 26
or 390;
(b) limits the matters that may be included in, or made public as
part of, a report made by OFCOM by virtue of a provision of this
Act or the Office of Communications Act 2002 (c. 11);
(c) prevents the disclosure of anything for the purposes of a
report of legal proceedings in which it has been publicly
disclosed;
(d) applies to information that has been published or made public
as mentioned in paragraphs (a) to (c)."
So Section 393 cannot be used to limit matters included in an Ofcom
report. As a matter of interest, section 15 relates to Ofcom's duty
to publish and take account of research; Section 26 relates to
Ofcom's publication of information and advice for consumers; both
of which arguably relate to the Freeview DRM decision.
In relation to the information supplied, I fully understand and
support your decision to redact some of the information therein
based on Section 40 of the Act which relates to personal
information.
So thank you for the information you have supplied but I would ask
you to reconsider disclosing the information you have withheld
relating to sections (a), (b) and (c) of my original freedom of
information request. Given the balance of public interest test
required under section 41 of the Freedom of Information Act and the
claimed exemption under Section 44 being negated in particular by
section 393(2) of the Communications Act 2003, I would respectfully
suggest Ofcom has an obligation to disclose this information.
So just to be clear on the request, I have repeated the original
(a), (c) and (d) requests below:
(a) A full copy, including the redacted sections noted on page 1
and 7, of the 'BBC response to Ofcom consultation of 22 January
2010
http://stakeholders.ofcom.org.uk/binarie...
(c) Details supplied by Channel 4, not part of its formal response
to the consultation
http://stakeholders.ofcom.org.uk/binarie...
relating to specific content which, in its view, may be at risk in
the future if content management is not introduced and also those
titles which it believes are currently sensitive.
Note specifically in relation to (c): I would request the withheld
attachment to the email correspondence from Channel 4 to Ofcom.
(d) A full copy of ITV communications with Ofcom relating to
'Content management on the HD Freeview platform'.
Note specifically in relation to (d): I would request the withheld
attachment to the email correspondence from ITV Plc to Ofcom.
Thank you for your time and attention and I look forward to hearing
from you further on this matter.
Yours sincerely,
Ray Corrigan
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