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 »

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 »

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 »

There are tablestakes at the internet

16 Feb 2012 by Dave.

The SOCA scare screen at rnbxclusive.com, and its shitty technology reminds me of a story told by Alec Muffett on his dropsafe blog, called “Jailed for using a ‘nonstandard’ browser?” When will these people get good enough to play?

Posted in soca, comment, internet, politics, technology | No Comments »

The chilling effect of global copyright enforcement

02 Feb 2012 by Dave.

And on to the EU’s attempt to implement strong copyright enforcement. I’ll return to the UK in the next week or so, but the European Commission signed the Anti-Counterfeiting Trade Agreement (ACTA) a couple of days ago. This proposed trade treaty has been negotiated in secret amongst a group of governments from the developed world. The US agenda was to strengthen international enforcement of intellectual property laws, and the original European agenda was similar, but orientated more around the protection of a number of geographic brands, such as champagne or cheddar. The Open Rights Group talks, on their blog, about the secrecy and how we have came to this point.

La Quadrature Du Net, a french based digtal liberty campaign, argue in their blog posting, that ACTA will have a chilling effect on ISP and Search providers forcing them to police their users and inhibit their business. LQDN say,

“By putting legal and monetary pressure on Internet service providers (in a most subtler way than in previous versions of the text), ACTA will give the music and movie industries a weapon to force them to police their networks and users themselves. Such a private police and justice of the Net is incompatible with democratic imperatives and represent a real threat for fundamental freedoms.”

It also proposes increasing criminal sanctions for commercial scale infringement. This is definitely not the same as commercial activity and it also reinserts the criminalisation on aiding and abetting which industrial content have been trying to criminalise for the last five years, and seems to weaken all the national copyright exclusions. The treaty has self maintenance clauses, which have no citizenship accountability. It’s been negotiated and written by bureaucrats and lobbyists and having got (some of) the law they want they don’t want any pesky elected politicians looking to change and update it; they see that as their prerogative.

La Quadrature Du Net have published a call to arms for Europe’s citizens to campaign to have the treaty rejected  by the European Parliament. (They also have a campaign Wiki here.)

To further understand what’s happening, check out this article, entitled “Why the EU will repent ACTA at their leisure” published on a blog called Br0ken Teleph0n3, which was pointed out to me by Glyn Moody. In it, the author, Ian Grant, makes some startling predictions illustrating the weakness of the treaty for Europe’s citizens.

• There has been no parliamentary scrutiny to determine if the treaty conflicts with the current state of European law. No-one knows if it conflicts or not. (See my, or others, review of the last UK judgement determining if strong copyright enforcement conflicted with EU law or not, it shows there’s a lot of law to contradict.)
• The European Parliament’s technical assessment recommends postponing the signing of ACTA, that there is little benefit to the EU’s citizens. The rejection of this recommendation has led to the resignation of the EU Parliament’s Rapporteur. Interestingly, five EU member states have opted out of the signing process. (How’s that work?) For the record, they’re Germany, the Netherlands, Estonia, Cyprus and Slovakia.
• It seems doubtful that the US Senate will be asked to, or consent to ratification.
• India, China and Brazil have not been asked to, and are unlikely to agree to the treaty.
• As discussed above, the penalties for copyright infringement are likely to be increased. There is no embedding of copyright exclusions, for research, education or personal use in the treaty.

We seem to be on the path to agree a treaty in the economic interests of US entertainment and industrial software companies, where Europe’s competitors will not, and we give up many fundamental freedoms for the privildge.

I shall be writing to my MEPs this evening. I suggest you look at some of these links and think about this as well.

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

Social media is innovating software and systems architecture

27 Jan 2012 by Dave.

Twitter bought Blacktype in July 2011 and as part of that acquisition got hold of Storm. This is a press release detailing the publication of Storm’s code on Github.

They position Storm as a parallel messaging, disk less system.

M Davey asks if this has much use in Capital Markets here.

I wonder if ‘Time Series Order’ might not be a serious inhibitor to its adoption, but Chief Engineer, Nathan Marz on his blog seems to think it could be part of the answer to a large number of problems.

Posted in messaging, twitter, social media, technology | No Comments »