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 »
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.
Posted in culture, copyright, digital economy, uk, law, politics | 1 Comment »
18 Mar 2012 by Dave.
There has been some complete shite written about Ken Livingstone’s tax affairs; he has replied in this article at the Huffington Post.
Here’s the law. The HMRC insist that people once known as sole traders incorporate themselves and run fully regulated companies so that the might of the Companies Act applies to their record keeping. As a reward, or inducement, unlike those of us who pay PAYE, they are allowed to evaluate and pay their tax bill a year in arrears. The HMRC also take a view as to whether these “Companies” are in fact “disguised employment”. If you fail their 13 tests, and are deemed to be in “disguised employment”, then all the company revenue is considered “income” and taxed under income tax rules as earned income.
Ken passes these tests because
So, the HMRC consider him to be a genuine service company and he’ll pay tax on
Frankly, I find it difficult to believe that the Daily Telegraph don’t pay Boris Johnson using similar vehicles. I can’t believe that they’ll put their hands up for the employer’s NI on £250K if they could legally avoid it. Also the disguised employment rules make paying a class 1 NI stamp on two wages a bit tricky!
It should also be noted that the Civil Service rules, which I assume do not apply to the Mayor of London, demand that public servants are beholden to one wage, that paid by the taxpayer; this is in order to eliminate any suspicion of conflict of interest. I think we know who breaks the Civil Service rule; even if it is merely chickenfeed.
Posted in London, mayors, Labour, politics | No Comments »
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,
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 »
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 »
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 »
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 »
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 »
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 4th 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 5th, 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?
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 »
09 Feb 2012 by Dave.
The Guardian reports on the foundation of a group, (or is it a faction) in the LibDems articulating opposition to coalition with the Tories. Is this something new, or just more of the same Janus like presentation they’ve always pursued? Left in the North, Right in the South. Despite my biased cynicism, I admire Grayson’s bravery. I wish him well.
Posted in LibDem, uk, politics | No Comments »