Tuesday, December 23, 2003

Merry Christmas to everyone. I'm off on a two week sabbatical for the festive season.
The Appeal Court in Norway has given Jon Johansen of DeCSS noteriety an early Chrismas present. There are a couple of factual errors in this BBC report in that Johansen did not actually create DeCSS and the MPAA did not bring the case against him, the Norwegian authorities did. But they get the aquittal right which I guess is the main thing. Trying to portray Johansen as a "serial hacker" is stretching things a bit but the MPAA are clearly disappointed at the outcome.

Friday, December 19, 2003

Creative Commons folk have had a party and a new animation to celebrate their first year in existence. (Warning the animation is pretty big, so unless you're on Broadband, it might be better to give it a skip, until they produce a smaller version).
The Dutch Supreme Court have just dismissed a case brought against the developers of Kazaa by the Dutch music copyright levy collection agency, BUMA. Kazaa creators cannot be held liable for the actions of their users.

It appears as though the Court's decision was procedural i.e. Kazaa won on a technicality. BUMA had wanted Kazaa changed in such a way that it would make copyright infringement using the program impossible but didn't file the correct legal documents in the correct way within the required deadlines. So the ruling is about procedures rather than directly about the liability of Kazaa for P2P file sharers actions. BUMA may try again.

Comment from the usual suspects imminent.

Thursday, December 18, 2003

I'm buried in exam marking and a pre-Christmas admin. mountain, so won't be posting much. Some things of note going on, not least of which is the Canadian Copyright Board's decision to stick a levy on MP3 players and suggest P2P downloading is legal (although uploading copyrighted files is not).

Friday, December 12, 2003

Susan Crawford is all for the RIAA litigationagainst individual copyright infringers but she is puzzled:

"If all bicycle manufacturers said all bicycle purchasers have to buy a particular form of bicycle, and that no bicycle can be loaned to a friend, we'd be upset -- and some black-market bicycle makers would show up with cheaper goods that consumers liked. What's so special about songs? Why do they get such special treatment? It must be true that all law is becoming intellectual property law -- it's like the growth of Chinatown. It's taking over... We're left with shards of rights, compliant devices, and expensive tunes...

So: I'm all for the lawsuits, that's fine, but you can't build a marketplace through litigation. Just as you can't demand that you come from a happy family, and make that true by fiat, you can't create loyalty to a product or a service by suing some of your customers. "
A Chisnese court in southwestern province of Sichuan has allegedly sentenced a man to eight years in jail for writing on the Web about corruption amongst Sichuan officials.
The re-trial of Jon Johansen, who originally posted DeCSS on the Net, has ended with the prosecuters calling for a suspended jail sentence. The Appeal court is due to issue it's verdict in about ten days. Nice Chrismas present for somebody?
Michael Robertson will be less than pleased that a Swedish court has at least temporarily sided with Microsoft in their trademark claims against Lindows.
Robert Cringely on "Why the Current Touch Screen Voting Fiasco Was Pretty Much Inevitable" A taste:

"Voting is nothing more than gathering and validating data on a huge scale, which these days is almost entirely the province of IT. And like many other really big IT projects, this touch screen voting thing came about as a knee-jerk reaction to some earlier problem, in this case the 2000 Florida election with its hanging chads and controversial outcome. Punch card voting was too unreliable, it was decided, so we needed something more complex and expensive because the response to any IT problem is to spend more money making things more complex...

In the case of this voting fiasco, there was a wonderful confluence of events. There was a vague product requirement coming from an agency that doesn't really understand technology (the U.S. Congress), foisting a system on other government agencies that may not have asked for it. There was a relatively small time frame for development and a lot of money. Finally, the government did not allow for even the notion of failure. By 2004, darn it, we'd all have touch screen voting."

Spot on.

Thursday, December 11, 2003

The Irish government have just published their proposed implementation of the EU directive on copyrights and related rights in the information society. Looks like a provision of existing Irish copyright law, Section 374 of the Copyright and Related Rights Act 2000, which explicitly allows the circumvention of "Rights protection measures" for fair dealing purposes is being replaced. So the construction of digital fences around existing access rights may now be premitted by law in Ireland. I have not reviewed the document in detail yet, so I'll need to have a proper look.

Monday, December 08, 2003

According to Groklaw, the judge in the SCO v IBM case has ordered SCO to disclose the specific code they claim IBM is infringing on. SCO had wanted IBM to turn over all their code so that SCO could pick through it to find infringements.
The Economist have a thoughtful article about the increasing market for biometrics, concluding,

"Spurred by the misplaced enthusiasm of governments around the world, biometrics seem headed for dramatic growth in the next few years. But calm, public discussion of their benefits and drawbacks has been lamentably lacking. Such discussion is necessary both to prevent the waste of public money in the short term—for the most part, the private sector has been wiser in its adoption of biometrics—but also to regulate what will eventually have the potential to become a powerful mechanism for social control."
I attended a really interesting seminar given by Oxford Balliol College Research Associate, Ms Tina Piper, last week on Tuesday December 2, 2003. Entitled 'The Unpatentability of Medical Diagnostic Methods: A Promise and Its Perils', it was one of the Oxford Intellectual Property Research Centre's Seminar Series. These are my notes on Ms Piper's fascinating talk.

Article 52.4 of the European Patent Convention excludes "medical methods" (of which "diagnostic methods" are a subset). This kind of exclusion is included in the patent law of 80 countries and the technical excuse for it tends to be that medical methods are not "capable of industrial application." This is a bit of a fudged construct but the law sometimes works like that.

The medical methods exclusion applies to the UK, Europe, Canada and New Zealand and there is a compromise on the exclusion in the US, which effectively gives medical practitioners immunity from being sued for patent infringement for using a patented technique. Medical methods are not excluded from patentability in Australia. "Diagnostic methods" are excluded in the UK and EU.

The US originally had an exclusion, then lost it and then partly regained it in the wake of the notorious Pallin v Singer case, when one eye surgeon sued another for patent infringement for performing a specific type of cataract operation. The Omnibus Appropriations act of 1996 made it possible for doctors to get patents on medical or surgical (but not "diagnostic") procedures but banned them from suing other doctors using the procedure in the course of their work. A congressional representative in 2002 introduced a bill called the Genomic Research and Diagnostic Accessibility Act but she has since been voted out of office and Ms Piper was unsure of the current status of her bill. This would have introduced patent infringement liability for diagnostic methods/tests.

The definitive UK case in the area for most of the 20th century was apparently a 1914 patent case (C and W's Application, Re (1914) 31 PRC 235, 36 Digest (Repl) 656, 104?). The UK Patent Act of 1977 suggested a definition for a diagnostic method - it must include all the steps in making a diagnosis (and it lists the steps). The Cygnus case challenged this definition saying the determining factors should be that the procedure is carried out by a skilled practitioner on or in the body i.e. it doesn't apply to samples taken from the body and tested in the laboratory.

There is supposed to be an overriding governing principle in this whole area, derived from the Baker Norton Pharmaceuticals case and guidelines from the European Patent Office, which states that:

Patents will not hamper doctors valuable life saving work.

Unfortunately in practice the principle is more represented in the breach than the observance. Ms Piper suggested there were a number of problems with the principle -

1. The exceptions from patentability of medical methods exist on paper but not in practice - judges and lawyers pretend the exception does not exist (In the Eli Lily case in 1976, the judge said that there was no logic to the idea of a medical methods exception and that it was based on ethics rather than logic).
2. There is little evidence of a principled approach in practice - drugs are patentable, diagnostics are not but the divide is artificial because diagnostics can take place in the lab rather than in the traditional face to face way. Skin tests applied to the body are not patentable yet the same test applied to a remote sample in a lab would be patentable.
3. There is little substantive protection of what are perceived to be healthcare goods - i.e. the exception covers very little in practice.
She then asked why should we care and provided some very succinct answers to her own question -

1. It is important to ask whether some technologies morally should or should not be patentable.

2. We are currently exporting our intellectual property laws to other countries through international treaties and trade agreements, so we should understand intimately the impact of these laws.

3. The state of the law may affect access to or cost of patented technologies and in the case of medical methods this is a public interest issue. An example is Myriad Genetics patent claim on the BRCA genes that can indicate a predisposition to develop breast cancer. Similarly in the case of the international outbreak of the SARS virus in 2003 there was a three way race to find and patent a causal gene sequence.

4. The state of the law will affect the type of technologies that will be affected, even if we only believe the inventive function of IP law. (If you add access to the knowledge base required to create those technologies there is a whole new dimension).

How did we get to where we are on medical methods patents? It turns out that it is all down to history.

In the mid 1800s medicine was a two tier profession. Wealthy upper class specialists and poor GPs. There was no standard training and anyone could set themselves up as a doctor. There were also lots of unsafe and useless medicines (like the carbolic smoke ball, the object an important contract law case Carlill v Carbolic Smoke Ball Company in 1893) and very little standardisation there either, in terms of treatment.

At that time 20% of all patents awarded were for medical treatments or medicines. The system was just a registration process, not the kind of examination and prior art process we have today. Anybody could register a patent and it was used as a marketing gimmick, a promotional badge supposedly giving the medicine the legitimate government stamp of approval.

Then the medical profession or elements therein decided to take control of the situation. How? They essentially created a parallel system to the patent system of the time, operating within a self-regulated medical profession. The self-regulation was effectively based on a set of ethical principles derived from the Hippocratic oath.

The profession:

1. Defined, facilitated and created a set of education standards that doctors who were to be registered had to meet. Basic training was standardised.
2. They encouraged collegiality and fraternity - in the spirit of the scientific method - medics shared their knowledge.
3. They got public support by creating a code of ethics which doctors were required to work to and opted out of the free market.
4. They gained state support and licensing and then self-regulation
5. They excluded regulations by other professions i.e. they booted out the lawyers

So they had created a parallel system to the patent system, (where lawyers and snake oil salesmen reigned), by replicating a number of functions of the patent system. Also medical inventions were evaluated on merit through peer review. (Now the peer review process has its own problems with hierarchy, convergence on the status quo, personality clashes etc. but we won't go into that as Ms Piper didn't). This new system meant that the incentive to invent was based on the acquisition of reputation. A fundamental aim was disclosure of new methods, products and processes - encouraged by the code of ethics and in the public interest, since it facilitated wider public access to effective treatments. There was also an indirect monetary effect in that the doctors with the best reputations were guaranteed a secure professional income.

Medicine was situated outside the market and until the 1920s and 1930s medics were completely against the patenting of medical methods because of this history. It was considered unclean for doctors to think about registering such patents - just not the done thing. In taking the profession outside the market, it also removed unseemly public legal disputes between doctors, such as the later (US) Pallin v Singer case, from the courts. Doctors don't like these kind of spats as they reflect badly on the whole profession. Even nowadays as we saw earlier Pallin v Singer led eventually to a change in US law. This was largely due to the general horror amongst powerful elements of the profession that a surgeon should be obliged to take three years of his life and run up $0.5 million in legal fees to defend his right to do his job using the best methods at his disposal.

One of the guiding principles was that patents should not hamper doctors pursuit of a decent income.

The original restrictions (late 1800s and early 1900s) imposed by this new medical profession governed regime required no patenting of substances, treatments or methods, though some patents on devices were allowed. And the rules were specifically enforced against doctors. The British Medical Association and the Medical Research Council enforced the rules.

There was some conflict and for example insulin and treatments for things like scarlet fever did get patented. The Association of British Medical Manufacturers also lobbied the BMA and MRC aggressively to open up the way to allow medical patents again. They justified their stance by saying that medical ethics insisted upon by the BMA et al were too strong and it was resulting in doctors being denied access to valuable rewards that would accrue from research. Doctors who wanted to take advantage of the patent system were being made to feel dirty about it.

The lobbying led to a series of developments in the law -
1. Dedication of medical patents to the MRC
2. Compulsory licensing, whereby patent holders were precluded from denying access to their innovations to but could derive some income from them
3. A medical methods exception to patents to avoid the Pallin v Singer type court case.

Effectively formal law was irrelevant to the reality of how medical patents were treated by the profession, the industry or the courts. When anyone wanted to change the law they formed a coalition and lobbied the BMA and the MRC. Ms Piper's (tongue-in-cheek) conclusion from all this was that, in reality, the lack of patents did not hinder doctors' access to a decent income.

What it did mean though was there was a lack of clarity and no logical conclusions as to what could be patentable in the area of medical methods.

What initial lessons is she drawing from her research to date?

1. Intellectual property law developed as the profession and the industry developed and evolved.
2. Intellectual property is about the interaction of legal and social norms. (We could add Lessig's architecture and market forces to that).
3. Intellectual property law can be and does get changed by well organised and resourced lobbyists.
4. When a law is widely ignored the whole legal system is undermined to a degree which can be dangerous.
5. We should recognise that the world has changed drastically and ask whether the appropriate balance in intellectual property has been maintained or whether it requires a re-alignment.

She finished with a question about how best to ensure access to medical methods and what role an exception for diagnostic or medical methods patents would play in that.

It seemed to me from the substance of Ms Piper's talk and her responses to the questions from the convened gathering afterwards, that she is very concerned about the public interest in all this. Basically, as in the US, well funded and organised self-interested groups can get together to change the law and the reality of medical methods patents but Jo Public does not get a seat at the table. (Interesting parallels here then with the situation in the US, where the relevant interest groups sit down, negotiate changes to the law, draft the new law and hand it to Congress for ratification. Jessica Litman, in Digital Copyright, describes this process with crystal clarity). Where indeed does the public interest get represented or, more importantly, factored in?

Perhaps it will be by making the general public more aware of the kind of work being done by the Tina Pipers of this world? Medical methods patents are a particularly stark illustration of the way in which intellectual property has serious impacts on ordinary people. We only have to look at the tragedy of AIDS in Africa and the lack of access to drugs with a track record of inhibiting the progress of the disease, to see this. If apathetic, disinterested Jo Public cannot be made to sit up and take notice of the life and death consequences of getting the balance right in intellectual property in this area, then it's never going to happen. My worry, however, is that it is just too emotive and attractive to the elements of the media interested in stoking up newspaper-selling public rows. The result is black and white sound bites from the extreme ends of the spectrum getting exposed and a complete lack of understanding of the real complexity of the issues we need to address to move forward.

Sunday, December 07, 2003

Anita Ramasastry on Why we should fear the Matrix.
Larry Lessig is worked up about SCO's CEO, Darl McBride, insulting the constitution by claiming it supports his case against IBM and Linux.
California is about to criminalise the act of sneaking a video camera into a cinema.
In the wake of Jon Johansen posting some software to help get round Apple iTunes digital rights management, some previously happy customers are feeling a bit put out. Not that Johansen has created the foundations of a workaround (though there are folk being less than polite about that) but rather that they feel conned into buying into DRM.

Can't really blame Apple, who made it pretty clear the files were protected, though they did deliberately fudge the issue of first sale.

Thursday, December 04, 2003

The WIPO director general told reporters in Geneva yesterday that "Piracy is like terrorism today and it exists everywhere and it is a very dangerous phenomenon... We would like to have consensus by all countries and all nations that piracy is a very dangerous phenomenon today"

This stuff is too important for this kind of claptrap, which really annoys me. People like Idris should be raising the level of the debate, not resorting to ridiculous soundbites. This adds absolutely nothing to the task of waking ordinary people up to the increasing importance of intellectual property laws - now a form of personal regulation not just industrial regulation of the creativity distribution industries, as used to be the case - explaining the complexities of the issues and addressing the problems of piracy and, more generally, balance in intellectual property laws.

After all, in a information society, intellectual property laws are the default rules of the road. Aaaaaargh - now they've got me using soundbites!
According to Computer Weekly, security flaws have been found in e-voting machines from the four major suppliers in the US.
The Irish Labour Party have issued a report outlining their concerns about electronic voting in Ireland and suggest that it may be a threat to democracy. They use a quote from the Gangs of New York at the beginning:

"The voters don't decide the election, the counters decide the election, so keep counting."


Although the individual components of the system have been tested, what the report calls an "integrated end to end test" of the entire system has not been carried out.

Promised cost savings in reducing staff for counting may be outweighed by increased numbers of people required to operate the voting machines.

The lack of appropriate procedures in the use of the system leaves it open to "interference from unauthorised persons".

And the report recommends that the electronic voting in Ireland be suspended until

1. A voter verifiable audit trail is available
2. A sensible set of operational procedures is in place
3. The whole system in fully integrated operational mode is tested and proved to be robust.

All seems pretty sensible really. Will it happen? Mmmm.

Wednesday, December 03, 2003

The Markle Foundation's Task Force on National Security in the Information Age has released a report saying that there has been a failure in the past to share information effectively amonsgt government agencies to combat terrorism. It also recommends more sharing of information between federal agencies and also use of private sector databases. They also directly criticise the Bush administration for not improving the sharing of information and federal agencies for sharing data on terrorism threats insecurely.

Fighting the worms of mass destruction - the Economist on computer security including comments from Lessig, Schneier and Greer.

The New York Times have caught up with the Diebold story.
The Markle Foundation's Task Force on National Security in the Information Age

Thursday, November 27, 2003

Interesting that Jennie Levine, a librarian who started the Sugar Quill Harry Potter fan fiction site, with her friend, Megan Morrison, should have nearly the same name as the Shifted Librarian, Jenny Levine.
Larry Potter v Harry Potter? The Scholastic, Inc. v. Stouffer ended in September 2002 with a federal judge siding with J.K.Rowling and her publishers. Nancy Stouffer had been claiming that Rowling had infringed the copyright of Larry Potter books she had written in the 1980s.

Wednesday, November 26, 2003

The White House and Congress have reached a compromise about the FCC's new media ownership rules raising the limit to 39% market share.
"Army Quietly Opens JetBlue Probe" says the Wired headline explaining the US Army are looking into the recent JetBlue passenger data scandal. They've not been too successful in keeping it quiet if Wired has got hold of the story.
Looks like Diebold have agreed not to sue at least some of the people publicising their embarrassing internal memos online. The company's submission to the court to this effect is available online.
According to the Register, via Kevin Poulsen at SecurityFocus, the Nachi worm infected Diebold ATMs. Yes the same Diebold that make electronic voting machines. Diebold have a nice list of links to media stories that treat them favourably or at least gently. Some of these provide exemplary examples of the unfair tactics of persuasion that advocates use to persuade people of their point of view. Attacks on people who have criticised Diebold are prominent are is praise for those implementing or defending Diebold. Wonderful "we're the good guys, they're the bad guys" stuff. Pity.
"Reporters Without Borders today urged the Zimbabwean authorities to drop charges against 14 people who were arrested for circulating an e-mail message criticising President Mugabe's economic policies and calling for his departure. They were all released on bail but have been ordered to appear in court on 26 November."

The Australian music industry have decided to sue ISPs "who failed to stop consumers illegally downloading music."

Lawmeme point us to some links on the latest troubles for e-voting machines and some policy proposals over broad copyright claims; and finally one for US 4th amendment scholars on new dog sniffing technology.

Apparently John Johansen of DeCSS fame has released a program on his website called QTFairUse which demonstrates how to get round Apple's iTunes anti-copying technology. Given that he is facing re-trial next month on criminal charges related to the release of DeCSS, I'm not sure that's the best of tactics on his part.

Tuesday, November 25, 2003

Censored Dance-why Fair Use plus $3.25 will get you a nice latte. Elizabeth Rader razor sharp on how Carol Loeb Shloss’s new biography Lucia Joyce: To Dance in the Wake had to get re-written repeatedly due to intellectual property threats on the part of Stephen Joyce.

"Think of this story the next time someone tells you that fair use is the down parka that
will keep writers from being chilled by virtually limitless copyright terms and
ever-expanding copyright scope. As my mother told me when I wanted to walk out in
the street into moving traffic, “you may have the right of way, but it doesn’t do you
much good after you’re run over.”
Ernest Miller sees end to end as fundamental to a free society.

"The government shall neither create nor sustain a monopoly carrier in the distribution of speech that discriminates in what it will or will not carry.

Sounds suspiciously similar to the end-to-end principle, don't you think?"

Too right!
Eben Moglen, a professor of law at Columbia University Law School and the general counsel of the Free Software Foundation, has done an analysis of SCO's case against IBM on linux/unix and found it wanting.
Patents on human organisms are to be banned in the US according to the Washington Post.

Friday, November 21, 2003


"I wholeheartedly support Derek in his
assertion of a fair use defense in this matter
for three reasons. First, I think it is
inappropriate to use the copyright law, and
particularly the DMCA's (17 USC Section
512), as a means to stifle political speech of
this sort. Second, I think that every
university has a responsibility to factor in its
academic role, as well as its role as an
Internet Service Provider under certain United
States laws such as the DMCA, when forced
to take up a matter of this sort and when
determining how to respond when its students
are accused in this regrettable manner.
Finally, I am convinced that Derek has a
strong fair use defense and that he ought to be
supported in his assertion of that defense."





Monday, November 17, 2003








"Developed and developing nations
were wide apart on Saturday on
managing the Internet and closing
the digital divide between rich and
poor at the end of what was meant
as a final meeting before a world


upon duplicate detection schemes are foiled."

should be ashamed of itself."

Friday, November 14, 2003

Derek Slater is feeling a little cynical about the ART act I mentioned yesterday.

Thursday, November 13, 2003

The copyright wars are progressing as proponents of expansion introduce a new bill to the Senate in the US.

The "Artists' Rights and Theft Prevention Act" proposes jailing p2p file sharers for three years for having a single copyright infringing file on their computer. Also someone would get jailed for five years for using a camcorder in a cinema.


of their rights actually happened.""

I predict a round of vigorous public debate between the usual protagonists in the US. I can't really see "ART" getting too far off the ground.

Wednesday, November 12, 2003

Altnet says P2P spies violate patent rights. P2P fighting back?
Some of the big media organisations are picking up the story on electronic voting problems in the US.
Patent office to re-examine Eolas patent. That could have an impact on the $520 million award against Microsoft.
On the other side of the government's IT fence, they have now launched a new UK Central Government Web Archive. Good for them.
Nick Cohen produced his usual diatribe against the government at the weekend. Just conveniently, this time it was on the subject of ID cards.
I heard the UK home secretary, David Blunkett, speaking about ID cards on BBC Radio 4 yesterday morning. He said biometric ID cards made identity theft "impossible." This is false.

Biometrics can be an authentication mechanism - something I have that demonstrates I am who I say am e.g. a fingerprint, iris scan or my dna. Biometrics won't be forgotten (which gives them an advantage over passwords) but they can be lost - that iris scan or fingerprint is no good if the eye or finger gets badly damaged in an accident.

Somebody should also tell Mr Blunkett, that although biometrics may be unique they are not secret. We leave fingerprints and bits of dead skin all over the place for example. What he also seems to forget is the database containing all the details of this biometric information need to be secure and accurate. If somebody steals your biometric e.g a fingerprint from a coffee mug or by copying or changing the database with the biometric details...

Just don't be kidded into thinking identity theft is "impossible" with biometric systems.

Sunday, November 09, 2003

James Grimmelmann at Lawmeme tells us "McDonald's is upset about the appearance of "McJob" in the Merriam-Webster's Collegiate Dictionary."

Some of my students have just been marveling at the Mike Batt dispute with the late John Cage's estate over copyright on silence. Cage once composed a piece comprised entirely of 4 minutes and 33 seconds of silence. Batt included a minute's silence in a CD and Cage's estate sued for copyright infringement. I understand that Batt's mother asked him if he knew which part of the silence they were claiming he infringed.

One of the comments on the McDonalds complaint is supportive of the fast food retailer because the dictionary is diluting their trademark.

Looked at by ordinary people these disputes look completely daft. But experts live in a different world to the rest of us when dealing with their narrow professional specialist area. There is an internal logic to the developments within the particular field e.g. in this case intellectual property. But is does not create a good impression for those looking on from outside the expert priesthood.

Copyright and intellectual property more generally are an amazing construct, enabling authors and creators to benefit from their creative endeavors. But the intellectual property specialists do little service to the promotion of the general understanding of their field by engaging in spats like those mentioned above.

And given the likely impact of the rules on intellectual property on the future of the information society, that does no one any favours. The intellectual property priesthood need more translators explaining their subject area in ways ordinary people can understand. That will facilitate informed public debate on developments in an area that is going to affect all of us whether we understand it or not.

Friday, November 07, 2003


television) reception," the FCC's order says...


As Ernest Miller said earlier in the week,








appealing to emotion and prejudice;

extrapolating opposition argument to the absurd and then refuting the absurd;



using jargon to confuse;

non sequitur - drawing an illogical conclusion from sound data.


He does make a couple of interesting points:



Hodder, Lasica and Miller all have comments on the latter.







Thursday, November 06, 2003






Wednesday, November 05, 2003





Monday, November 03, 2003


IPC "conceded that "after
extensive research ... there is no way of ascertaining where

hadn't made any detailed checks on copyright when I first
clumsy tactics don't work. Their attempt to squash the problem
had simply amplified it."


This doesn't surprise me but I'm none the less angry.












Tuesday, October 28, 2003

PS Don't miss this Wired article on Brewster Kahle, Amazon's new search engine and "The fondest dream of the information age ... to create an archive of all knowledge."
I'm in a rush today but just wanted to draw your attention to this, which at first glance looks like a possible step in the right direction to getting a resolution to the file sharing issue.

A couple of MIT students have come up with a new system which taps into the MIT campus licensed cable TV network. The files are analogue not digital, which means the sound quality resides somewhere between a radio broadcast and a CD.

It means that the students get access to a big library of music and the copyright holders get paid a license fee. Sounds a better for the RIAA than a bunch of expensive lawsuits and PR disasters about suing 12 year olds and grannies.

Monday, October 27, 2003

James Grimmelmann, like Edward Felten yesterday, asks "Where will the madness end?"

"Here's a link to a site that links to a site that links to a site that links to a site that links to a site with the memos. Whoops, that's the Diebold home page. "

The Authors Guild are concerned about Amazon.com's new search tool.
I've been thinking about using a different video for activity 1 of T182 Law the Internet and Society based on Larry Lessig's book, The Future of Ideas. Whilst digging out Lessig's Inaugural Meredith and Kip Frey Lecture in Intellectual Property, in March 23, 2001, at Duke University, I came across a terrific session with James Boyle:

Private Censorship and Perfect Choice: The Future of the Internet? Second Annual Duke Magazine Forum, featuring Duke Law Professor James Boyle in conversation with UNC Law Professor Adrienne Davis.

Articulate, entertaining and informative as ever, Jamie also gets put on the spot in relation to his perspective of the Napster case and explains the issues in the case in a way you just don't get in the usual polemics (both for and against). Although there were sound legal arguments in favour of Napster, the music industry also had a case and hence he did not sign up to the amicus brief supporting Napster. One example in Napster's favour was that intellectual property had never really concerned itself with private acts because it was really a form of industrial regulation. Also the Sony Betamax argument - Napster hadn't done anything itself any more than Sony with their video recorders, in relation to infringing copyright. Nevertheless, neither did he sign up to the specific overreaching arguments made by the music industry in the case because they would have effectively entailed making the open architecture of the Internet illegal. But in the end he came to the decision of not directly supporting Napster through asking the question: is this technology really going to encourage innovation in the long term or is this not-sanctioned use threatening innovation in the long term. Although the music industry's argument was questionable they did have a point. His friends said they should be allowed to engage in the kind of tactics that the music industry used. Jamie thinks that there is a serious issue in terms of making supported properly researched sensible and scholarly arguments in favour of real balance in the area of intellectual property. (As well as acting as activists supporting balance). We have to get away from the polemic dichotomy and emotive soundbites on both sides, if we are really going to make any progress towards that goal.

Couldn't agree more. Jamie still finds the Napster case hard and although Larry Lessig has eloquently made the argument about Naspter as a celestial jukebox, the public debate never really got a handle on precisely the kinds of difficulties with the case Jamie articulates. It's a real pity we live in such a soundbite culture where if you have can't get an idea across in three seconds you automatically lose the argument. It undermines the real world possibility of getting to a satisfactory resolution of difficult problems, like balance in intellectual property in a digital age.

The Naspter discussion happens about 47 minutes into the recording, just in case you're thinking of fast forwarding to that bit. Jamie, unlike his namesake of the Kellner (Turner Broadcasting) variety, doesn't believe that fast forwarding is theft.
Insightful paper by Shayne Bowman and Chris Willis, edited by J.D Lassica, senior editor Online Journalism Review, on the future of participatory journalism, currently best represented by blogs. Dan Gilmore writes the Foreword and includes his much repeated meme that his "audience, never shy to let me know when I get something wrong, made me realize something: My readers know more than I do. This has become almost a mantra in my work." If you want understand blogs and what participatory journalism could be all about, you could do a lot worse than spend some time on this paper.
My colleague, John Naughton, is amongst the people alerting us to the notion that is might not be a great idea to buy into Microsoft's Office 2003 sales pitch.

Michael Robertson is possibly going a bit far in suggesting the software is a virus but I agree with John, that "You would have to be exceedingly stupid to fall for it."

Unfortunately, however, most organisations have a kind of built in blindness to stupidity when it comes to this kind of thing. And the force of Microsoft's publicity will likely be more than strong enough to overcome voices of reason, thereby causing millions within and without organisations to turn from people into sheeple, and sign up in droves.

Like I said yesterday, potentially we can influence more with our purchasing power than our votes but we don't seem to see it that way. There seems to be wide spread apathy to the reality of voter or consumer power. And if you don't use it you'll lose it.

The Guardian on Saturday did a longish piece on the increasing scale of identity theft in the UK. This really is a growing problem and people would do well to be aware of it. 74 766 cases reported in the UK last year. And that's just the reported cases.

"In a survey last year, Experian, a
credit reference agency, found that 53 out of 71 local authorities
reported bin raiding was taking place in their areas, and getting
noticeably worse.

In a further analysis of 400 domestic bins, the agency found that
72% contained a full name and address, 40% contained a credit
card number and expiry date linked to an individual, and 20%
held a bank account number and sort code alongside a name.
Rifling through rubbish pays off. As does trawling through the
internet. To find more details of you, a fraudster could check out
the electoral roll, the national phone book and the directors'
database, as well as a few other data sources such as the land
registry (which holds your mortgage details)."

Nick Cohen in his latest polemic against the government says "Basic civil liberties are in dire jeopardy when anti-terrorist laws are used for day-to-day policing."

"For the past few weeks, the High Court in London has been considering the possibility that not even the threat of mass murder can make the British state grow up. Before it is an account of what happened to demonstrators who gathered in September outside Europe's biggest arms fair in London's Docklands. Cluster bombs, conventional bombs, each and every type of bomb, were on sale to buyers from pretty much every dictatorship on the planet. The demonstrators' number included Quakers and nuns...

Dozens of protesters were arrested and searched under Straw's anti-terrorism legislation none the less. Pennie Quinton wasn't even demonstrating. She was an accredited journalist who was making a film of the demo...

Her case was taken up by the civil rights group, Liberty, which asked the High Court to decide whether the police were using what were meant to be emergency powers against potential psychopaths as 'another tool in the kit of day-to-day policing'. Liberty's lawyers discovered that it has become routine for the police to declare the whole of London a special zone for anti-terrorist operations.

No one knew what the Met was up to because orders akin to the announcement of martial law were declared and confirmed in secret. From 13 August for 28 days and from 11 September for 28 days, the police had unconstrained power to treat everyone in London as a terrorist, and stop, search and hold them without cause or reasonable suspicion. "

Cohen is not Tony Blair's favorite journalist.

The New York Times is suggesting that Brazil is now a hotspot for cyber criminals. The journalist seems to be basing that assertion on a conversation with a computer savvy 22-year old Brazilian, the publisher of a hacker magazine in Brazil and a consultancy firm in London.

Sunday, October 26, 2003

Techlawadviser, Kevin Heller, thinks in the wake of the MPAA campaign in schools maybe someone "should create a legitimate lesson plan and offer it to volunteers to teach middle school and high school kids about copyright law instead of allowing them to be inundated with corporate propaganda."

Donna thinks it is a good idea and is looking for volunteers.
A couple of Spiked reports right on the button with respect to the mid week BBC programme, The Secret Policeman, exposing a handful of racist police officers. As Josie Appleton says, the

"report showed the impact of
diversity policies: most people had learnt the approved terms to use
in public, whatever their private views. But enforcing this kind of
personal etiquette won't help to reduce real racism, and indeed may
increase resentment of ethnic minorities."

John Dean served as President Richard Nixon's White House lawyer for about three years. He has written two books about the experience and the Watergate scandal, Blind Ambition (1976) and Lost Honor (1982). He's none too impressed at the performance of the current White House resident, George Bush and has regularly criticised him in the mainstream press. His latest critique draws on details recently published in a book by the editor of the Nation, David Corn, called The Lies of George W. Bush: Mastering the politics of Deception. It has to be said that Corn is not exactly a fan of the president either. Dean seems to believe that Bush merits his own special prosecutor in the Kenneth Starr mould to investigate a range of areas from Iraq's WMDs to his relationship with Enron chairman Ken Lay, and including stem cell research, alleged criminal expose of a CIA operative, management of pre and post September 11th, and his tax plans amongs others. Bush, Blair and spin certainly haven't done a whole lot for the credibility of politicians but then I wonder if nowadays we can have more influence with the pound (or dollar or euro) we spend rather than the vote we cast? Sorry state of affairs.

The Miscrosoft settlement judge, Colleen Kollar-Kotelly,

"urged government lawyers Friday to investigate why only nine companies so far have paid Microsoft to license its technology for their own software products, agreements central to the success of a landmark settlement negotiated with the Bush administration." Microsoft could be looking at many more court dates ahead.

The case of Bret McDanel is another example of why computer security folk need to be very careful how they tred. McDanel served 16 months in prison technically for transgressing the Computer Fraud and Abuse Act. His crime was that he spotted serious security flaws in his company's software. He reported these to the management but they ignored them. After quitting the company he then decided to email their customers to point out the flaws. His former employers didn't take too kindly to this and got the authorities involved. McDanel was prosecuted convicted and jailed. After the event, and with the support of the tenacious Jennifer Granick at Stanford the prosecutors have now agreed that McDanel was wrongfully convicted and are supporting his appeal to get the conviction overturned. This doesn't happen very often so credit must go to the officials involved.

Major League baseball are planning to sue websites describing games for intellectual property infringement.

"Bob Bowman, who oversees Major League Baseball Advanced Media, says it's time to assert property rights: "One way to exhibit a live baseball game is TV. Then there's radio. The third is offering real-time data online. To us, there's no difference.""

That could have come straight out of the mouth of Jamie Kellner of Turner Broadcasting who believes taping tv programmes and fast forwarding the ads is theft.

In the wake of Swarthmore college authorities harsh treatment of the students civil disobendience campaign against Diebold, students from other univerities such as MIT are signing up.

Looks like the ubiquitous Jack Valenti may be finally thinking of retiring after 37 years as head of the MPAA.

Friday, October 24, 2003

Young Aaron Swartz is annoyed about Diebold using copyright law to cut off the publication of their embarrassing internal memos.

Meanwhile the Swarthmore students who have set up a campaign of civil disobedience against Diebold are beingopposed by their college authorities. Next step the ACLU or similar group launching a legal suit to fight for the students' constitutional rights anyone? Especially after the university decided to start terminating the internet accounts of any student linking to any site that links to a political protest site that links to the Diebold memos.

Bruce Schneier does a typically incisive piece on the data mining I was talking about yesterday

"There's a common belief - generally mistaken - that if we only had enough data we could pick terrorists out of crowds...

Security is always a trade-off: How much security am I getting, and what am I giving up to get it? These "data-mining" programs are not very effective. Identifiable future terrorists are rare, and innocents are common. No matter what patterns you're looking for, far more innocents will match the patterns than terrorists because innocents vastly outnumber terrorists. So many that you might as well not bother. And that assumes that you even can predict terrorist patterns. Sure, it's easy to create a pattern after the fact; if something identical to the 9/11 plot ever happens again, you can be sure we're ready. But tomorrow's attacks? That's much harder."

All is not well on the IPR front at Cambridge University. Dr M.R. Clark of the Department of Pathology has "detailed practical experience of how the University policy was operated for many years by the Wolfson Industrial Liaison Office (WILO) and also more recent experience of the Research Services Division (RSD) and the Technology Transfer Office (TTO). What I can say immediately is that there has been a profound philosophical change in the way that the TTO operates
when compared to the WILO, particularly with regard to the involvement of University academics in the discussions over commercial exploitation of their IPR."

Via such routes does the abuse of intellectual property interfere with education.

A report commissioned by the Danish government concluded in early October that open source software was critical for any serious attempt at "e-government".

"RightsWatch is the name of a research project aimed at developing consensus and
promoting awareness of self-regulatory notice and takedown (NTD) procedures for
Europe, as a tool to achieve prompt removal of copyright-infringing material from the

They've just produced a white paper that summarises their work. "The RightsWatch partners would welcome your views on the project's findings. "

Reporters without Borders have just published their Second world press freedom ranking. Finland, Iceland, Netherlands and Norway top the rankings. Ireland is 17th, the UK 27th.

"The ranking distinguishes behaviour at home and abroad in the cases of the United States and Israel. They are ranked in 31st and 44th positions respectively as regards respect for freedom of expression on their own territory, but they fall to the 135th and 146th positions as regards behaviour beyond their borders. "

The EU gets good ratings apart from Italy (54th) and Spain (equal 42th).
According to Silicon.com MIT are winding down their RFID research and closing their Auto ID Center that did the research. Expect RFID tags to get widely deployed by the retail value chain in the none too distant future.
Gator have been suing to stop their name being associated with the term "spyware." In "See you later, anti-Gators?" at News.com, Paul Festa reports:

'In response to a libel lawsuit, an antispyware company has settled with Gator and pulled Web pages critical of the company, its practices and its software. And other spyware foes are getting the message.

"There is this feeling out there that they won the lawsuit, and people are starting to get scared," said one employee of a spyware-removal company, who asked not to be named. "We haven't been sued, but we've heard that other companies are being sued for saying this and that, so we've changed our language" on the company Web site... '

...Companies like Gator are the Goliath that average computer users are up against in the war for online privacy," Ed English, CEO of InterMute, said last month.'

Personally I detest pop up ads, whatever you call them. I'm no fan of the surreptitious collection of personal data either.

The Australian ISP that has been sued by the music industry is denying that it acted as a host for copyright infringing files.

Thursday, October 23, 2003

The Max Planck Society this week issued "The Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities." Extract:


as an emerging functional medium for distributing knowledge. Obviously,
these developments will be able to significantly modify the nature of
scientific publishing as well as the existing system of quality assurance.

In accordance with the spirit of the Declaration of the Budapest Open
Acess Initiative, the ECHO Charter and the Bethesda Statement on Open
Access Publishing, we have drafted the Berlin Declaration to promote the
Internet as a functional instrument for a global scientific knowledge base and
human reflection and to specify measures which research policy makers,
research institutions, funding agencies, libraries, archives and museums need
to consider.


Our mission of disseminating knowledge is only half complete if the
information is not made widely and readily available to society. New
possibilities of knowledge dissemination not only through the classical form
but also and increasingly through the open access paradigm via the Internet
of human knowledge and cultural heritage that has been approved by the
scientific community.

transparent. Content and software tools must be openly accessible and

Very noble.
How do we use data mining to catch the bad guys whilst at the same time not catching or undermining the civil liberties of the good guys? According to Wired, "A panel of lawmakers, think tankers, data miners and civil libertarians" on Tuesday "couldn't even begin to make up their minds."

I'm not surprised. As I've said before, it appears intuitively obvious that he best available technologies should be put at the disposal of the good guys in order to stop/catch the bad guys. The real world is not quite so simple, however, and the checks and balances as well as the information overload and resource issues associated with this are anything but intuitively obvious. Not to mention the fact that the good guys and bad guys cannot be easily identifed by their respective white and black clothing.
The MPAA has launched its classroom campaign to educate children about "digital citizenship." (No I'm not kidding). The associated propaganda sheet... er, sorry... I mean booklet... is called "What's the Diff? A Guide to Digital Citizenship." All the usual soundbites are in there. According to Donna Wenthworth, Wendy Seltzer of the EFF and Berkman Center at Harvard has done her own interpretation of some of the soundbites:

* To legally own it, legally buy it.

Sorry, kids--no more birthday presents!

* If you haven't paid for it, you've stolen it.

The library will now be closing its doors.

* Copying a movie or CD for a friend is illegal.

Mommy taped ABC's "movie of the week" for Sally's
mommy. Now Mommy is going to jail.

* If you wouldn't take a movie or CD from the
shelves of a store without paying for it, then why do
it online?

It only looks like the song is still online on the "shelf."
Via the EDRi-gram newsletter: The European Parliament's Judicial Affairs Committee (JURI)
should have discussed its Report on the Enforcement of Intellectual Property Rights on Monday.

But 199 amendments have been proposed already and the translators were so overwhlemed they didn't get it translated into the EU's eleven official languages on time. English, Greek and Danish versions of the 159 page document were available just hours before the meeting. So no substantive business was done.

French MEP Janelly Fourtou (who is married to the chief executive of Vivendi Universal, Jean-René Fourtou) wants this directive to become law before the EU elections next summer.

"Mrs. Fourtou has been under attack from a large number of her Parliament colleagues, even from within her own Conservative Group. She is criticised for introducing a set of amendments criminalising even small-scale file sharers - and for her defence of an article in the draft directive that constitutes a violation of the EU's rules of procedure.

Article 20 of the draft directive deals with criminal law provisions for infringements of intellectual property rights. Some of the sanctions foreseen pre-empt a possible decision by a Court of Justice on whether such an infringement has taken place at all, and therefore constitutes so-called substantive law. In the EU's complicated lawmaking process, which foresees different procedures for different fields of competence, creating substantive criminal law is still an intergovernmental competence and can not take place under the co-decision procedure.

4 of the amendments aim at deleting Article 20, but Mrs. Fourtou and Commission officials alike are not willing to even discuss this. The initial discussion of the Report will now, as it seems, take place either on Tuesday, November 4th - the date initially foreseen for the vote in the Committee - or on November 6. The vote in the Committee would then take place either on November 26 or the following day, which would mean the vote in Plenary would have to take place in the week following December 15.

EU Commission: Proposal for a Directive on measures and procedures to
ensure the enforcement of intellectual property rights [COM (2003) 46]

Janelly Fourtou's Draft Report on this Directive

199 Amendments to the Fourtou Report

Law Professors criticise IPR Enforcement Directive

(Contribution by Andreas Dietl, consultant on EU privacy issues)"