How can you commit copyright infringement without copying?

22 Apr 2012 by Dave.

Yesterday, I read and commented on Judge Purdy’s judgement as to why Richard O’Dwyer had committed a serious crime in the this country and hence was liable to extradition to the USA. Here’s the source of my outrage,

he is due to face charges of copyright infringement while no-one claims he has copied anything

Not right!

Posted in digital economy, culture, copyright, LibDem, uk, extradition, politics, internet, law, technology | No Comments »

The O’Dwyer Case, why we thought linking was legal

21 Apr 2012 by Dave.

It seems the Liberal Democrats are gearing up to oppose the extradition of Richard O’Dwyer. Good. He shouldn’t be extradited; it’s not the asynchronous nature of the Anglo US extradition treaty which is the problem here. In order to be extradited, you need to have a case to answer that you have broken a serious law in both jurisdictions.

O’Dwyer ran a web site that published, it would seem, crowdsourced links to copyrighted entertainment content. This originally had a .net domain, and when this was seized by the US Customs, he transferred his site to the .cc top level domain. .cc does not require a US regulated registrar.

It is alleged that O’Dwyer’s actions contravened the UK’s Copyright Designs and Patents Act 1988. The following section of the law is quoted in the Westminster Magistrates judgement, delivered by Judge Purdy sitting alone,

“A person who infringes copyright in a work by communicating the work in public
(a) in the course of business, or
(b) otherwise than in the course of business but to such an extent as to affect prejudicially the owner of the copyright commits an offence if he knows or has reason to believe that, by doing so he is infringing copyright in that work”.

The Judge states that the EU’s E-Commerce Directive creates a “mere conduit” defence for people who do not “initiate, select the receiver or select or modify the transmission”. This is the defence successfully used by tv-links in the quoted case, R vs Rock & Overton. The judge in that case ruled that linking sites have a “mere conduit” defence. This case was reported widly and at Torrentfreak in an article entitled, TV-Links Triumphs With Landmark E-Commerce Directive Ruling

Judge Purdy in Westminster argues in his judgement that there are material differences,

• the level of control exercised by O’Dwyer
• the fact that he acknowledged that many of the links were copyright infringing,
• and repeats the US Government’s lawyer’s statement that O’Dwyer curated the membership of the site, constraining and enabling individuals to post links to the site. (The Judge uses the word vetted.)

But despite these material differences, if you agree they are material, how the judge gets from the precedent that it depends on,

“making available”

and the Rock & Overton, the TV Links case judgement, which clearly came down on the side that linking is legal because the linker does not “make available” content and gets to,

“I have endeavoured to weigh these subtle distinctions. The diagrams of how as a matter of electronic mechanics (if I may term it) the TVShack websites actually operated favour HHJ Ticehurst’s restrictive construction. To my mind there is much in the distinction factually, always remembering these matters are allegations of conduct which a trial court alone can resolve – that Mr Jones contends between the instant matter and Rock & Overton. I also have in mind the mischief Parliament had in mind. Accordingly in my judgement I am satisfied the conduct alleged in the instant request meets the dual criminality test and would be an offence in this jurisdiction.”

Also in order to remember that a trial court is the place to determine the substance of allegations and their breach of law, different jurisdictions will come to different conclusions.

In conclusion, I make two points,

• to understand what’s happened here, read the judgement, the judge powerfully quotes Rock & Overton as stating that it is only the content hosting sites that are guilty of infringement, but he finds material reasons not to apply the precedent.
• reading the BT case judgements, while much longer, the arguments were easier to follow, much more of the law was quoted, and the way the judges came to their conclusions was much clearer. I feel that Arnold and Parker would have explained the legal reasons why the difference in control, the acknowledgement that much content was infringing & site membership curation makes a material difference to the application of the precedent. To me an evidence that a Judge with experience of the alleged crime,rather than extradition should have sat on the bench for this one.

It’s not really very satisfactory.

Teresa May has agreed the extradition, so I am not sure what happens next. There is a petition at Julia O’Dwyer’s web site, and they ask you to write to your MP and to David Cameron, the Prime Minister.

Posted in digital economy, culture, copyright, LibDem, uk, extradition, politics, internet, law, technology | 1 Comment »

Code is not Property: Official!

14 Apr 2012 by Dave.

Wired reports that, three days ago,  the US 2nd Circuit Court of Appeal has declared that code is not property and cannot therefore be stolen; there is no intent to deprive the owner of the object’s use. They also ruled that the perpetrator, there is no doubt that the code was removed from Goldman Sachs network, could not be prosecuted under the US Economic Espionage Act since the code in question was not used in commerce. I don’t actually know what the code did, but we can be sure that it was used in commerce, or it was a regulatory compliance program. If it didn’t have one of these two purposes, Goldman Sachs wouldn’t be doing it, and wouldn’t have wanted to keep it secret.

Does this mean that only traded software can be the object of the espionage act? If so I am not sure this is where we want to be.

Part of Goldman Sachs’ problem is that they wanted to keep the code secret and there are many reasons to want to do so. However patent and copyright protection require the intellectual property owner to publish their ideas, or the expression of their ideas. Another part of the problem is that people wanted to see Aleynikov go to prison and breach of employee confidentiality wasn’t sufficient to get him there.

As techdirt.com reports in their article,

Still, the overall ruling here is good, though it could have been more complete.

I wonder if there will be further appeals, but it’s an important stake in the ground. Copyright infringement is not theft.

This was also covered at engadget.com.

Posted in news, copyright, digital economy, law, technology | No Comments »

Vote for me! I am standing for the ORG board.

29 Mar 2012 by admin.

I am standing for election to the Open Rights Group (ORG) Board. I hope to offer experience, knowledge and commitment.

I work in the information technology business and came to ORG via the Open Source and Software Freedom campaigns. I submitted personal evidence to the Government consultation on peer to peer file sharing in 2009, started following the ORG shortly after

I believe the campaigning priorities in the UK are to do what we can to stop ACTA, pass the Hargreaves Review recommendations and Repeal the Digital Economy Act. I have been writing here on this blog on a number of issues on the digital economy, copyright reform and digital citizenship rights. I believe we need a broader conversation with the people of this country and have tried to move beyond the Civil Liberty arguments, to understand and articulate the economics of scarcity, plenty and free and am now on a journey towards the privacy arguments. I don’t know about you, but I am a knowledge worker, and I “bill for time”; if I don’t work, I don’t get paid and I don’t see why others should! The privacy arguments are also important, and I suspect that, the argument that,

an English (wo)man’s home is their castle

will also have resonance. We shouldn’t criminalise our children, we shouldn’t privatise copyright law enforcement and we shouldn;t let industrial content break our privacy laws.

I am a Labour Party member and also a member of the GMB; although I am standing as an individual. I represent neither of these organisations. I just believe that without a conversation with the Trade Unions, their members, and the Labour Party, we, as digital liberty campaigners, are unlikely to win.

I have public policy experience, a long time ago I worked in the Civil Service, and more recently sat on the EU’s NESSI steering committee, an industry NGO advising the commission on the R&D budget and acting as an incubator for internet research projects.

Posted in copyright, acta, economics, digital economy, politics, internet, technology | No Comments »

The abuse of takedown notices

25 Mar 2012 by Dave.

In Feburary, TechDirt discovered that one of it’s key anti-SOPA polemics had been deleted from Google’s index as a result of a bogus DMCA takedown notice. The article goes onto detail similar dirty tricks on Torrentfreak.

In my article, “More on the Newzbin2 affair”,  I comment on BT’s attempt to clarify the initial injunction and the issue of false notifications and liability for acting on them. The judge said there was no evidence that false notification would be significant. Despite the well documented existence of speculative invoicing scams, this would seem to add to the evidence that while accusing innocent infringers is free of consequence, some at least will do it.

Posted in copyright, newzbin2, culture, digital economy, internet, politics | No Comments »

Only a musician sees the future

20 Mar 2012 by Dave.

The queue to get into Parliament last week was a bit long, so long I missed the first presentation at Pictfor’s Consumer’s and Creators in the 21^st Century Copyright World, although I did take some good pictures. Saskia Wetzel was the first person on, and it’s a shame I missed it; she was the only speaker designated as a consumer representative.

Mike Holderness spoke on behalf of writers , and  Gwen Thomas spoke on behalf of photographers. They both want legally mandated “Moral Rights”, and they both oppose the ageing and maturity of “Orphan Works”. See me here on Orphan works. Interestingly, Holderness attacked the internet industry for illegally creating a comprehensive archive without permission and the photographers also blame hackers, and maybe corporate misbehaviour for the destruction of ownership metadata, and seem to be demanding DRM on photographic meta data. (If you look at my article, or its quoted sources, you’ll see that Lessig amongst others proposes neutral registrars as part of the answer to this issue. I suspect its not acceptable because the proponents want squatters rights, but I have come to the conclusion that the basic problem of orphan works is copyright longevity.)

To me the most interesting speech was by @SimonIndelicate. He made a great speech, passionately claiming ownership of his music, yet recognising all the inspirations and sources. I summarise the speech as follows,

You cannot be a creator alone, all creators are also consumers.

I suggest the conclusion is that you need a weaker copyright, his/their music is part original creation and part inspired work. You can’t write a usable copyright law that works only for creators. I also suggest that this is a replay of Benkler’s argument;  in the information/digital economy, information or digital content is both an input and an output. Wealth creation is based on the right/ability to create derived works.

During the Q&A, Simon asked rhetorically,

“Does (the current) copyright (settlement) encourage the creation of more culture?”

His tone of voice made it clear he though the answer was “No”, and I agree with him. Longevity is too long, strictness enforces a non-negotiable tax, lack of formal notice leads to uncertainty. I also reckon that unless Copyright Law has a public benefit other than the personal revenues of creators and monopolists, we have a right to abolish it. It’s a gift, not a right!

In his summing up, he was heckled, and asked why people should access the products of creator’s labour without paying, to which he replied,

“why do you think you should be able to charge more than the market rate?”

Well said! He had articulated the massive explosion in music supply, and let’s face it the supply of photographic images is even more numerous. This stuff is no longer scarce.

---

The music piece Simon was talking about is available to listen to here on youtube, I’d love a video performance; see how that works… I hear the politics, I listen to the music, the people make themselves real and I want to see the performance.

Posted in economics, culture, copyright, news, digital economy, uk, politics, internet, law, technology | No Comments »

The internet is a UK success

19 Mar 2012 by Dave.

I was going to polish my notes from the #Pictor meeting last week, which has published its own precis of events, but the Wall Street Journal and the BBC are both carrying a story sourced from Boston Consulting that the UK’s internet industry is now over 8% of GDP, and grew at over 10% during the period of the study. This is  while the UK GDP grew by 0.7% over the last year and there remain fears of a return to recession.

James Firth, at his blog, “Slightly Right of Centre”, tries to evaluate the contribution of the Internet industry vs. the “creative” industry and makes the point that the Digital Economy Act was passed to help and support a very important wealth creator in our economy. It’s a shame, well, more truthfully a point of design,  that it almost certainly discriminates against an even more important one. The figure bandied about by BIS at the time the time the act was passed was that creative industries were about 7% of GDP; the internet has overtaken it.

No matter how one does the sums, maybe its time to back a winner!

Posted in copyright, news, culture, economics, politics, digital economy, technology | No Comments »

Copyright maximalists even want to eat orphans

18 Mar 2012 by Dave.

I attended the PICTFOR meeting on Tuesday, having prepared for it by researching the state of politics in relation to “Orphan Works”. I have been pointed at this issue by Dr James Boyle in his Orgcon 2010 speech and more recently by this paper, called “Orphan Works: Mapping the Possible Solution Spaces” by David Hansen.

The fact of “strict liability”, the long periods of copyright, and the backdating of the extended life time of copyright have led to large parts of our culture being copyrighted, without an owner. There is no-one to ask permission for use. I can see no reason why these works should not be reclaimed by the public domain but it seems that other creators want to deny the use of orphaned works to increase scarcity.

David Hansen looks at the current or more accurately recent legislative responses in the US and the EU.

In summary, the Americans have considered reducing the liability if users make a search for the owner, and behave reasonably if owners come forward after use. Also in the US, they have considered extending Fair Use rights based on the purpose of use. In the EU, they are considering the endowment of rights to use orphaned works to certain classes of, usually pubic, bodies, and most outrageously, lawmakers are considering allowing collective rights organisations to collect for the use of orphaned works and to distribute these earning amongst their members (or customers for private organisations).

Hansen’s paper quotes Lessig’s evidence to the US Congress in 2006, where he argues that the age of a copyrighted work should be significant, not the least distinguishing between material created before 1978, and after. I hope this is about the development of the international agreements on copyright longevity. However, he also recommends that the ’strict’ protection of copyright be restricted to 14 years. i.e. no works younger than 14 years can be considered ‘orphan’, and that works older can be considered. Anyway, Lessig argues that, the right of copyright must create a duty to maintain as does other property; the rule against formalities does not restrict national registries nor a duty to declare copyright, in the jurisdiction of the creator/act of creation. He uses these constructs to create a definition of orphan works and a framework in which remedies can be limited. i.e. aged and or unmaintained content.

 I looked into orphan works because I thought there might be a compromise, that development of legislative policy to enahnce our access to culture and news would be easier, but it seems it comes back to longevity of copyright.

No-one has the right to earn money by doing nothing! No-one has the right to deny society its culture because they want to extort money from us.

It seems that small scale creators, such as the photographers organised in stop43 and industrial content are still pursuing a maximalist lobbying strategy, seeking to deny citizens the right to access orphaned content even when acting in good faith, collectively or individually.They also tt seems they seek to deny even the collective libraries of record (Library of Congress, British Library), the rights to use and organise orphan works.

Once again Monopolists restrict supply, in order to increase price.

Posted in culture, copyright, digital economy, uk, law, politics | 1 Comment »

Neither the UK, nor the EU should sign ACTA

13 Mar 2012 by Dave.

Red Sin Censura, published an Internet in Danger page the other day, which pointed me at Le Monde’s “What’s wrong with ACTA”. This has been worrying me, since much of the opposition has been based solely on secrecy, although this bleeds into democratic oversight. Since the treaty has been negotiated primarily between democracies and their politicians and public servants, to me secrecy alone is not sufficient to win broad support to opposition to the proposed treaty; there’s a lot of people that trust their politicians.

However, between Red Sin Censura and the Le Monde article, I’d say there’s a lot more ammunition and reason to oppose the EU and member states signing the ACTA treaty. The remainder of this article, precises the L’Monde article, which points out that ACTA is an international trade agreement,

• negotiated outside the world trade agreement infrastructure, deliberately because the developing country agenda differs and diverges from monopoly capitalism, and they, i.e. the developing countries,  have a majority in the UN infrastructure, and were excluded from the negotiating table
• in which the copyright corporations were on the inside track and ACTA embeds their privilege, it’s the pursuit of these privileges that required the negotiations to be secret; these privileges include the right to determine infringer’s penalties,the right to determine the ‘loss’, and the prohibition and constraining  of ISP safe harbour defences, all extend copyright privilidge.
• which creates its own maintenance infrastructure. Treaties constrain national sovereignty, ACTA signatories will find it very hard to change their mind.
• which is unlikely to be signed by either its authors (the USA) nor its main targets (the BRIC countries), so why the hell should we sign it.

The Le Monde article argues that,

“ACTA is an attempt to bypass multilateral institutions”.

 

The article looks at the role of the World Trade Organisation and the World Intellectual Property Organisation, both United Nations NGOs, that until the launch of the ACTA negotiations were the centre of international agreements on intellectual property law. The push for ACTA was started three weeks after WIPO announced its “Development Agenda”, which recognises the complexity of balancing the interests of the world’s citizens and participants in intellectual property markets and possibly made it much easier for NGO accreditation. According to Le Monde, the WIPO recognised the fundamental human rights interests in the debate around intellectual property law. Copyright holders wanted to focus on enforcement, developing economy governments and the WIPO wanted to focus on definition. Having lost in the UN, copyright holders and their agents, the US Trade Representative, started an initiative to get what they wanted.

 

“Negotiations were a secret to the general public, while corporations were well informed”.

 

More than this, major efforts were made to avoid democratic scrutiny and the citizen’s participation utilizing the sort of tactics that those used to the factional politics of the 70/80’s student movement will easily recognise. This stupidity is the reason why in the EU, further democratic scrutiny in the European Parliament is legitimate and essential.

 

“Developing Countries were excluded from negotiations, even though they are the target of the new norms.”

 

Le Monde speaks about the UN’s Right to Development and ACTA’s sponsors’ and negotiators’ flagrant disregard of the interests of the developing world. I suggest their response is almost certainly to be to refuse to sign up to the treaty. Glyn Moody reports on the likelihood of China & India signing in his techdirt article, “Why The Chances of China Joining ACTA Or TPP Are Practically Zero”.

 

“The ACTA norms are restrictive, unfair, and undermine or eliminate flexibilities in intellectual property laws that are needed to protect the public interest”.

 

Let’s hope so, the ECJ will strike it down. It copies the right holder’s global initiative of giving themselves enhanced rights in the enforcement arena, for instance defining the loss caused by piracy as that stated by the rights holder. Furthermore Le Monde states that,

 

“Right holders are given asymmetric rights as regards discovery against real or merely alleged infringers.”

 

and also places constraints on law makers in protecting the rights of internet service providers, and new entrants to the internet services markets. It provides for preferential treatment of rights holders, and even choice in the selection of remedies, it prohibits Governments from protecting even in a limited way, the rights of the online service providers. ACTA also allows for rights holders to have the last word on the loss caused by infringing activity i.e. the monopoly price charged by the rights holder. This is chilling stuff, I strongly recommend you read it. [Here], you’ll need to scroll down.

 

“ACTA makes it more difficult to implement liability rules, in cases where the public should have more freedom to use protected goods.”

 

Le Monde’s words, to expose the increasing restriction on the use of orphaned works and the ongoing “enclosure”. Knowledge Ecology International have issued a briefing on ACTA, Orphaned Works and Damages. The problem that creates orphaned works is that copyright is “strict” and no longer requires to be declared. Thus content is copyrighted by default, and strict liability means that its use is prohibited without rightsholders’ agreement. If the rightsholder cannot be identified, then the content can’t be legally used. You can imagine; ACTA requires both damages to increase, and that all legal fees are to be borne by infringers; innovators won’t take the risk. Most attempts to solve the orphan works problem have involved weakening strictness and reducing damages.

 

“The secret process that created ACTA sought to establish a new captured institution that will advance right holder interests through both hard and soft norms.”

 

To me the drop dead reason for refusing to sign. Any amendment, becomes virtually impossible. What this means is that there will be a non democratic organisation that determines the changes permitted, and no MP’s, no MEPs, no EU Commissioners, no elected officials will be able to influence the future of world wide intellectual property law. Copyright maximalists want everything, and the want it for ever.

 

“The United States does not consider itself bound by ACTA, but will seek to impose ACTA on developing countries.”

 

If India, China, Brazil aren’t signing the treaty, and the USA aren’t signing, why should the EU and its member states do so? Even more important, why sign first?

Posted in culture, copyright, acta, economics, digital economy, politics, internet, europe, technology | No Comments »

I wanna be in the ICE, by the Serious Organised Crimes Agency

16 Feb 2012 by Dave.

The UK’s Serious Organised Crime Agency, part of the UK’s small national police force and a Home Office QUANGO, undertook a US Government style raid on the web site of rnbxclusive.com, which was reported by Techdirt in an article called “UK Now Seizing Music Blogs (With American Domains) Over Copy Right Claims”. The most startling part of this, for Brits, is the amazing splash screen factoids that greeted visitors to the site, which among other things states that the people behind the site have been arrested under suspicion of fraud, they know who you are (or more accurately, who your ISP is), the penalties for conspiracy to commit fraud and the quote below. The most startling part of this for Yanks and their law enforcement officers is that a foreign law enforcement agency can take down a .com i.e. a US site.

Glyn Moody in a an article called “Serious Organised Crime Agency Takes Down Music Site”, after talking to SOCA states that SOCA are pursuing enquiries to prove, to the point of arrest, that some, their notice said most, of the sound tracks previously available had been obtained pre-release by hacking. This is a crime under UK law and the copyright owners and licensees deserve the protection of the law, as the accused deserve a fair trial.

Arstechnia also comments in an article, entitled “Police: download a file, go to jail for 10 years and pay an “unlimited fine”. They clearly examine the notice and deconstruct the lies and disinformation. The notice includes statements about theft and the economic impact of the downloaders actions. i.e.

“As a result of illegal downloads young, emerging artists may have had their careers damaged. If you have illegally downloaded music from this site, you will have damaged the future of the music industry.”

It’s a disgrace that a law enforcement agency is publishing the BPI’s propaganda. The interests of a copyright licensors and the interests of artists are not synonymous!

Why are the police using our taxes to fund such bullshit? Why use British taxes to fund a free advert pointing at an american registered web site for so-called legal music? How much would that cost on google?

Innocent until proven guilty means that even the most egregious, industrial scale pirates are innocent until proven guilty.

Others have made the point that this notice may well prejudice any trial. I am also informed that the scary spyware doesn’t work with Mac or Chrome. Also IP addresses are private data under UK and European law, the use of the program code that displays the IP address requires a number of compliance actions. Perhaps I’ll check if SOCA registered this use of private data under the Data Protection Act.

Posted in digital economy, culture, copyright, uk, law, innocence, internet, politics | 1 Comment »