London votes tomorrow

02 May 2012 by Dave.

Tomorrow/Today we elect a Mayor and Council in London.

Labour’s candidate is Ken Livingstone, he is fighting to replace the right-wing tory, Boris Johnson.

I was planning to summarise my feelings but if you check out my internet spore, I think you know how I feel. Nicky Gavron, a GLA Assembly Member summarizes brilliantly, why Ken is right for London, and Johnson is wrong in her blog article, Ken v Boris.

Johnson has been a disgrace as London Mayor, I don’t even thinks he wants to be Mayor, and Ken has always been a great public servant and Londoner. Once again, read Gavron’s article.

The key powers of the Mayor are Transport, Police and Planning. Ken’ll reduce the fares, bring stability to the Police and use the planning powers in the interests of Londoners to build affordable housing.

Johnson will increase fares at above inflation, sack policemen and Comissioners and built 56 houses in the last six months.

There’s only one sensible choice. Vote Labour for London.

Posted in elections, London, mayors, voting, uk, Labour | No Comments »

Something’s got to change! (In London)

24 Apr 2012 by Dave.

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.

Housing is a late to the table issue. Historically the Mayor’s powers are limited but the next Mayor will take ownership of London’s landbank. This is the opportunity to build more houses. In the canvassing I have done in Deptford, I have almost cried when meeting families trapped in in small council houses, their children sharing bedrooms because there is no family social housing, no affordable private sector rented accommodation. All the candidates said they’d build affordable, and sustainable (in Jenny Jones case), social housing; but until we stop foreign money using the London property market as a safe haven there will remain two pillars of unaffordable prices in both the rental and purchase markets, insufficient housing, and too much money driving up prices. They all need a demand management policy.Air Quality wasn’t mentioned on the debate programme. If you want to see what’s happening, check out http://www.londonair.org.uk/LondonAir/; why’s it important, because the Mayor takes over responsibility for the fines negotiated by Westminster with the EU, people are dying and he can make a difference. The congestion zone, and public transport fares all make a difference. It’s a bit shit that it wasn’t mentioned on the programme.

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.

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You know Brian Paddick is quite interesting, some good policies, he obviously knows his stuff on Police and Housing, but at the end of the day he’s a Liberal. Won’t take sides in the real debate between Labour and Tory in London, so just irrelevant!Jenny Jones, the Green candidate wasn’t given a fair chance on the programme. Some of my Labour party comrades’ll be suspicious that http://www.votematch.org.uk/ recommends I vote for her, but that’s what’s marvelous about democracy, I get to choose. (I was curious as to why they said I should, and it came down to their weighting, or my weighting of what I consider to be peripheral issues, but the site is a great toy and helps focus the mind on policy.)No-one mentioned Johnson’s Council Tax saving over the last four years, just to remind you, here’s Boris Johns-hen.

Posted in elections, London, mayors, uk, Labour, politics | No Comments »

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 »

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.

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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 »

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 »

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 »

Was the DE Act a Hybrid Bill?

12 Feb 2012 by Dave.

The DE Act was passed during the Parliamentary wash-up. While researching for my blog article, “Copyright in the UK, the next steps”, I looked for some facts on “Hybrid Legislation”, which I had been, wrongly, told was not permitted. I found the BBC’s page on Hybrid Bills, which states Hybrid Legislation is that which affects the public interest, but also specifically the private interests of a person, organisation or community and that interested private parties are entitled to a select committee hearing. So instead of an accelerated passage, a Hybrid Bill requires additional steps in the parliamentary process.

Does the restriction of the “Initial Obligations Code” to six specific internet service provider companies, make the DE Act a Hybrid Bill?

If so, that’s two failures in parliamentary processes that the passage of this bill required.

Posted in culture, copyright, digital economy, uk, law, internet | No Comments »

In the nick of time, a hero arose

11 Feb 2012 by Dave.

Finally got my thoughts on Sabam vs Scarlett out. This is the first European Court ruling on the copyright trolls attempts to wreck the internet. I have backdated it to November, when it first happened because I want to. The article has obviously been amended as things move on. Please read the full article here.

In summary the Belgian collective rights society, i.e. the private sector organisation that taxes pubs, cafes and jukeboxes on behalf of monoploy capitalism lost its attempt to force Belgum’s biggest ISP to do everything they wanted. The upside is that copyright trolls lost, the downside, they asked for everything and so some of what they want may still be legal.

Further  upside is that the European Court stated that the rights of citizens and ISPs must be balanced with those of copyright holders! This is our hope.

Posted in culture, copyright, digital economy, uk, law, europe, politics | No Comments »

Copyright in the UK, next steps

11 Feb 2012 by Dave.

In the Bar after the @pictfor meeting last Monday, I met for the first time, Monica Horton, the curator of the iptegrity site. It was her review of the DE Bill Judicial Review that inspired me to read the judgement and write my own review, which is published on this blog in shortish and longer articles.

I have had some time to think about the articles and the judgement since writing the articles and I and Monica compared notes. BT and Talktalk are appealing the ruling so it’s not over yet.

The three most troubling areas to me are the rulings on what the Judge referred to as “careful balance”, the review of the impact analysis and the Privacy rulings.

A central tenant of the UK constitution is “Parliamentary Sovereignty”. It means that Parliament can do what it wants. Axiomatically it cannot act illegally. This is now and has been for while constrained by treaty obligations but in the UK, judicial review has mainly been about the conduct of government business. The defendants have been the Secretary of State in lieu of the government department, or more famously local authorities, and people go to court to get bureaucratic decisions over turned because the law is not being followed. The precedent and practice of the UK legal system placed a significant road block in front of any judge in striking down laws as the US Supreme Court and French Constitutional Court has done from time to time.

Judge Parker argued in his judgement on several occasions, most importantly while considering proportionality, that the judgement between one course of action and another, the balancing of the rights of businesses and entrepreneurs, the rights of the copyright holders, the rights of the regulators and the rights of the citizenry in the creation of statute law was fine and that “careful balance” was required to make a decision. He argued that where “careful balance” was required, it should be exercised by elected politicians and not a Judge. He showed a restraint not exercised by many of his predecessors.

I just wonder if he has placed a duty on Parliament to demonstrate that it has exercised “careful balance”. I argued in my earlier articles that I wouldn’t want to argue that the extraordinary process by which the DE Act became law, with a truncated debate in the House of Commons, and passage after a general election had been announced was the exercise of “careful balance”. The Government argued that it had undertaken a consultation exercise , arranged for significant time to debate this in the House of Lords and conducted an impact analysis which again now seems to be a necessary part of the legislative process, at least for Government proposed legislation. None of this negates the fact that the House of Commons, the only elected parliamentary body did not have sufficient time to exercise “careful balance”.

Is this now a requirement for Parliament?

Have the courts, and legislative practice weakened the concept of parliamentary sovereignty?

Must Parliament now prove it has exercised “careful balance”?

When I wrote my reviews, I merely reported on the Judge’s statement that he felt the impact analysis to be comprehensive and that little could be added, and that it supported the passage of the law, or required “careful balance” and hence legislative not judicial review. Personally I’d like some guidance as to how bent an impact analysis needs to be before it would invalidate a law. The impact analysis does not cover the Welfare Economics argument which is that the monopoly profits of the copyright traders would create a greater public good if spent on other stuff. The court admits that it is not good on evaluating the so-called lost income of the copyright traders and neither is the impact analysis. The impact analysis does not cover the international trade impact of the DE Act. So how fucked does an impact analysis have to be before it invalidates a law. Is this now another constraint on Parliamentary Sovereignty?

The third area of concern to me is the ruling on Privacy. Basically, the right to privacy and the duty to find and punish criminals was compared. Our internet addresses are private data, but it seems that the copyright holders have aright to pursue criminals. The problem in my book, is, how do the copyright holders, who now have the right to breach the privacy of both the innocent and allegedly guilty, publish their processing methods, which is required under law? How do they collect the actions of citizens legally to notify the alleged infringers’ service providers? The judge ruled that this is a permitted processing method, but surely they’ll still need to register as data users, and permit their data subjects to place data protection queries. How is that going to happen? I am deeply unsure that the copy right holders can put themselves in a position to legally collect information.  Also none of this addresses the issues of in the UK, the right to silence; it is another way in which the DE Act privatises crime prevention. The privacy issues bleed into the right to a fair trial.

One of the reasons we need a robust privacy law, is that we need to explore the track record of entrapment by copyright holders. Some copyright holders have published honeytraps and own the hosting software, which allows them to entrap so called Pirates. This must be made illegal. Some large corporations,  have enforcement arms pursuing the victims of their marketing divisions.

Hollywood’s cunning attempts to privatise the criminal justice process in the pursuit of copyright crime, most egregiously breaches the US Constitution’s 4^th Amendment,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

by allowing private actors to breach the privacy of alleged infringers. It also contravenes the 5^th, the right not to incriminate oneself. We have similar rights in the UK and Europe. The Parker ruling does not make it clear how these private actors can meet the needs of European privacy law and legally spy on citizen’s internet usage.

Judge Parker ruled the law legal because, he saw copyright enforcement is a fundamental right on a par to citizenship privacy & free speech, he also saw hunting crime as allowing exceptions to citizen rights, and that elected politicians trump judges.

Interestingly I wonder if he has created a duty for Parliament to exercise careful balance and to create evidence based law?

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This article has been written in a hurry, apologies, I want these ideas out there so I can continue the conversation but I have not been back to the judgement to xref my statements as to its contents, I have worked from my notes and, in particular, I really need to go back to the impact analysis words in the judgement, which starts at S. 247

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