I am at home in my flat in London.

I also remember when I heard that Mitterand, the last socialist to hold the post won, I was at CPSA conference in 1981, I think it was the Ship Hotel, and Dennis Skinner MP was speaking, he’d just been heckled, he asked what Williams, Jenkins, Owen & Rodgers had ever done for the Labour Party; the reply being they’d left it. He riposted, “I’ll use that next time”.

Thanks to all the people I met, those who voted for Ken and the Labour Party, those who campaigned with me, and those who didn’t but remained polite.

It was a close run thing in the end, and I even had my hopes raised between 16:30 and 21:00 when what became three Labour “constituencies” had yet to declare but it wasn’t to be.

I met several people, who just cheered us on in Brockley, but also one in New Cross, who while saying he had voted for Ken, thought he needed,

to remember where he came from

and those who are still there. I did challenge him, as I personally recognise this criticism of many of Labour’s leaders, I didn’t think it included Ken Livingstone. I promised to repeat it, and I shall remember this advice when choosing our next candidate.

Should have been out on the #labourdoorstep tonight with people, but had family things to do. So I watched last night’s London Mayor debate on bbc iplayer.

I can’t believe that Boris stated the Thatcher Government had to abolish the GLC and that Ken’s original Fares Fair was in some period of pre-history. If he want the pensioner vote he’d better get his London history right, but then he’s not a Londoner. The comment/fact that Boris isn’t a man for detail shone through on the transport/police debates. He hasn’t a clue. He’s increased fares and cut the police. He claims that the money isn’t there to meet Ken’s Fare deal; only TfL who work for him say this, every independent expert says that its do-able. I hope so, every time I pass an oyster card reader, I am reminded of what Johnson’s making me pay.

Londoners have the second worst air quality in Europe, and the highest public transport fares in the world.

In the words of the song, “Something’s got to change!”

You get three ballot papers, vote Ken for Mayor, vote Labour for your local GLA Councillor, and vote Labour for London.

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

Not right!

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.

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.

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.

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.

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!

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.