Saturday, July 26, 2008

Something topical!

Batman or Bush?

Random American citizens try to tell who said it: Batman or Bush

Hey I'm sure it says at least enough about images of regulation to be a Law and Society paper

Friday, July 25, 2008

Just another silly season Friday..

In the immortal words of John MacEnroe..

You cannot be se-rious....


It'd be good if it had the IT Crowd in it too :) (So hey, Judith, are they infringing personality rights too? is there an exception in the German law of personality for parody or comment)


"The Court looked into the degree to which the pursuit of artistic freedom interfered with the personality rights of Meiwes. It found that artistic freedom was not so powerful a right that it allowed for someone's life to be made into a horror film.

Meiwes advertised online for someone to be killed and eaten by him. Bernd Jürgen Brandes responded to his advert and tried to join Meiwes in eating his own severed penis before being killed and eaten."

But his life *IS * A HORROR FILM!!!

More legally: I'm all for autonomy, but do you have a right to assert your personality so as to gain a reward or remedy if it involves doing criminal acts?? Does a serial killer have a right to get a movie about him banned in germany because it's not horrible ENOUGH!? Surely there's some version of the Dworkinian principle of not profiting by your own wrong here?

Wow it's a great time to be a privacy lawyer. Nazi orgies (allegedly). German cannibals. Any guesses on what next?

EDIT: Ok, this next. But hey, haven't all the cool kids given up playing Scrabulous anyway?

Well that took a full ten minutes..

Also this, about which I can say little other than that it's about time they started selling close-target limited tactical nuclear strikes on eBay.

I think I'll go back to bed! :)

Thursday, July 24, 2008

Meanhile after Mosley.. a privacy and libel round up

For a change, something privacy related.

So what do we think of the Mosley case? In many ways this is absolutely nothing new let alone "landmark". We have had a long string of cases which support the idea that press intrusion into the firmly private lives of celebrities will be regarded as a serious breach of privacy. This wasn't even a difficult case: the events took place in private behind closed and locked doors, not in the more contested world of the outdoors (cf Rowling (Murray v Big Picture)); the case wasn't contaminated as in Douglas by the existence of a threatened connected revenue stream. It wasn't a contested kiss and tell dispute as in Ash where opposing rights of freedom of expression and privacy of non-press parties clashed. This really was a pure privacy and reputation case, about as intimately private a matter as you can get, an exotic sex life, where the incentive of the newspaper was to sell lots of newspapers. It doesn't seem surprising therefore that the damages award was so high, or that the judge was so critical of the paper involved.

Nor is there really anything very new on the tabloid side. It's clear if there really had been a "public right to know" here, the case would have gone the other way. But the Nazi allegations were never proven and the NotW botched its defence. Frankly , Pangloss remains bemused how even if Mr Mosley did spend every Tuesday goosestepping in jackboots and lederhosen singing Tomorrow Belongs To Me, this would have much to do with his "public" role, the handling of Formula 1 racing. But perhaps this is one of these sporty things we females are not privy to. (I don't understand why footballers are expected to have faithful marriages either, or why the public should care either way.)

Still, as my colleague Judith Rauhofer wrote to me triumphantly to say, this case certainly affirms the aphorism from earlier cases, that even if the public is "interested", it won't necessarily be "in the public interest" for the details to be disclosed.

The much bigger issue is how far will the flowering emergence of UK post HRA privacy jurisprudence go. Almost everyone except the tabloids thinks the UK's tabloid press needs restrained, by privacy case law in the absence of legislation.

But what if it is not the press but me or you who had blown the gaffe on Mosley? We live in the web 2.0 world after all. What if I had spilled it in my blog.? What if someone had set up a fake Mosley Facebook profile in which his interests were claimed to be the Luftwaffe, iron crosses and Eva Braun, his sexuality was described as Random Play with Whips, and his politics as Neo-Fascist?

This isn't altogether a hypothetical. Oddly enough today someone also got successfully sued for 15K damages for libel, and £2K for privacy, for setting up a fake profile on Facebook in an attempt to embarrass and belittle his former mate from school. (he sounds quite a horrible person, but that's not the point really.)

The fake FB profile actually involved lies about the alleged subject, or it wouldn't have lead to a libel award. But the next case , after Mosley and the rest, could easily only involve private and damaging, but not false, details.

One clear example that clarifies where this might lead is one Judith and I debated at the Law and Society conference in Montreal - is there now a human right not to be "outed"? Tonight I've watched a documentary in which John Barrowman explained in copious detail how glad he is to be gay. But not everyone feels that way. Indubitably, outing can cause damage - everything from loss of job to loss of friends and emotional distress to suicide in some cases. Shouldn't it be actionable?

But - Do I , an individual have the ethical duty not to harm my fellow man, if I do not lie? Maybe I do , but that is still a long way from a legal duty. The judge in the Mosley case stated:

"The law now affords protection to information in respect of which there

is a reasonable expectation of privacy, even in circumstances

where there is no pre-existing relationship giving rise of itself to an

enforceable duty of confidence. That is because the law is concerned to

prevent the violation of a citizen's autonomy, dignity and self-esteem."

But don't I too , as part of my rights of autonomy and personality and self esteem, have a right to describe the world how I see it, as long as I don't lie, defame or negligently misstate? These are`my duties of care, the traditional limits of freedom of speech. I am not required in general to protect and sustain the image my friends and enemies want to project - to be part of their personal PR agency. Nor should I be.

Of course if I out my friends, they are unlikely to stay my friends and I might well be ostracised in my social group. Shouldn't these social norms and sanctions suffice? Yet it is hard to see exactly where to draw the line between the next Facebook case, the one about privacy not defamation, and the outing example. There is also surely a societal interest in truth, and critique, as well as in privacy.

Do we really want the whole world to be a giant self fulfillment and image protection arcade? or do we want the right to say, "but look - the Emperor has no clothes." Or perhaps even, in today's case, no jackboots.

3 Strikes and You're Um Crawling to a Halt??

Pangloss hates to seem so one track minded on this, but well, things just keep happening. In this case, potentially pretty bad things.

After months of rumours, behind the scene talks, stealth tactics at the European Parliament (maybe), and denials that the UK and indeed, Carphone Warehouse would ever ever have anything to do with nasty French stuff like 3 strikes and you're out, today we have two somewhat interesting developments: a voluntary, and so far, rather worryingly vague, Memorandum of Understanding between the music industry, BERR and the 6 leading UK ISPs which between them account for 90% of UK traffic : BT, Tiscali, Virgin ("absolutely no possibility of disconnection"), Orange, BSkyB and oh suprise, Carphone Warehouse :)

Plus a consultation on what primary legislation should be brought in by BERR as a "backstop": the idea being presumably that if the other 10% of ISPs don't fall into line with the MoU - or if some of the above 6 pull out depending on how bad the PR fall out is and what the MoU actually compells them to do - they can then all be compelled still to "do something" about file sharing.

So what does the MoU say? Well basically for 3 months, the industry aided by the 6 ISPs involved are going to send out letters to suspected filesharers. Lots and lots of letters. 80,000 or so over 12 weeks. But hang on. If 67% of the UK have admitted to filesharing - even only once - that's 35 million letters that need sending out. Quite a bit of scaling up there to be done after the pilot. Eco-wise let's hope they're all emails:)

But letters is only stage 1 (after all the BPI could have sent them themselves, tho this way they do aparently get ISPs to pay for half of them.) Stage 2 is what do you do next, when presumably they compare them all on a big spreadsheet, and find that eg Mr A of Aberystwyth got 220 letters from 5 ISPs? What gets done to persuade Mr A to abandon his bad ways if the shock of 220 letters isn't enough?

Here the MoU gets vaguer. There will be discussion of "technical measures", for "repeat" or "the worst" offenders. This seems to involves three possible sanctions:
  • traffic management (slowing the offender's email til it's too slow to downlaod an MP3);
  • filtering out tagged-as-copyright traffic to that offender's IP address;
  • and possibly, maybe, not quite stated-as-such, disconnection??

Pangloss doesn't want to restate the (very tired and flat) wheel but this raises all the same problems I've gone though before plus more.

What will happen if the repeat offender is a child and the whole household loses access or has it slowed to unacceptable levels? "Traffic slowing" to an accountholder sounds better than disconnection, but I cannot see, having asked some tech experts, how it is substantially less damaging.

This is about music remember, not, so far, films. Supposed Little Johnny downloads several hundred tracks, and as a result the account to their home is restricted to a crawl. (It's likely to happen automatically after the account's bandwidth limit is reached.) If you can't manage to get a fast enough connection to download an MP3, or even 12 constituting an album, can Johnny still manage to download his course reading materials from the uni or school website?? can Mum run her small business? can Dad tele commute? can Sis run her small business on eBay? can ma and pa even manage to download programmes from iViewer, their legal right as a BBC license payer! It seems unlikely.

What if the infringer is really someone using your wi fi , or visiting your house, or a crook who's zombified your machine unbeknownst to you?

What if the music people have just got the IP address or look up to real life ID wrong? (well we should at least get to see the correct target hit rate - or the failure`rate - over the next three months.

What if you're making fair use of coyright materials eg review, journalism, education?

All these crucial points of evidence and standard of proof and exceptions remain right now (a) vague and (b) aparently to be determined and adjudicated by industry and ISPs - not courts, judges or even policemen.

The good news here is that the regulator Ofcom is to be involved in drafting codes with industry relating to "evidence .. repeat offenders..incorrect allegations... routes of appeal" (p 48).

Good. Very good even. But it will still be the music industry as prosecutor and judge and the ISP as cop and enforcer, with the onus on the consumer to challenge after the sanction has already been ordered: Pangloss still feels deeply unhappy about all this.

There is a better alternative though, and it's option A3 in the BERR consulation. (p 35).

"Rights holders would identify infringing IP addresses and pass evidence and
details to a 3rd party body, which would take responsibility for assessing the evidence that file-sharing of copyright material had taken place. If the evidence was judged sufficiently robust, the body would then direct the ISP to take appropriate action or do so itself. Such a body would also be able to hear appeals and complaints from
consumers and may also be responsible for developing and administering or overseeing
any required code of practice for ISPs and rights holders."

This is a win win solution. It could meet ECHR and UK standards of fairness, due process and transparency, while still cutting down on actual piracy (as is right and proper, we should not forget this).

It might also be seen as slow and expensive and the industry will not like it. But it doesn't have to be.

We already have a model , in the IP world, of a speedy cheap and effective, yet legally rigorous tribunal for on line wrong doing. It's the ICANN UDR dispute resolution procedure for dealing with cybersquatters - people who register domain names in apparent disregard of the rights of trademark holders. It works, it's seen 1000s of cases over a number of years and broadly industry - and the IP industry - has found it effective and satisfactory. In previous work for the EU, myself and my colleague Caroline Wilson held up the UDRP as a possible model for resolution of online consumer-related disputes. It can involve lawyers or technologists or even musicians so long as they are trained as arbiters who actually understand the relevant law, technology and business. It need not have the kind of time and cost constraints of the courts. Cases could mainly be conducted online, with electronic written pleadings, again already a tried and tested standard approach in the UDRP.

It could make the UK look like a world leader in dealing with the consumer piracy problem, as opposed to the freakshow of Europe.

What other alternatives does BERR suggest?
A1 suggests that ISPs be required to automatically reveal the personal identity of an alleged filesharer identified by IP address to music industry, on demand, with no need to go to court.

Currently ISPs refuse to do this because it would be breach of data protection law and also a breach of confidentiality to custoner without court order. It would, one imagines, be disastrous for ISP customer relations, but as US already has it in DMCA, it is likely to appeal to BERR as already working.

The problem is really how far this can be used to invade personal provacy and make groundless threats (as in so-called cyber-slapp libel litigation.) People are however extremely touchy about personal data revelation without consent right now, post HMRC. so Panlgoss suspects this one is likely to go down like a lead balloon.

A4, finally, (no there is no A2 - well not really) suggests that if we are all very very bad boys indeed, then ISps will be asked _ sorry ordered - to install filtering. THis would probably mean that the rightsholder would say "here is the list of tracks we hold cooyright in" and if Mr A in Aberystwth was detected downloading or uploading one of them, it would be filtered out (and he would no doubt get a letter too).

Secueity and technical experts say this is so unlikely to work correctly across all traffic, all users and all ISps, that it's like believing in fairies. How do you tell a Lily Allen track that's been illegally copied from a P2P site from one that's been legally downloaded as part of a BBC TV show from iViewer or one that's freely available on MySpaced as apromo? It's the same track.

It is also a blank ticket for unrestricted censorship with no public accountability or transparency. It's the kind of tactic which has been declared an unconstututional interference with the free expression rights of adults repeatedly in the US courts. Filtering might - just - be aceptable to stamp out child porn downloading - but not in the context of music where many people have quite legitimate rights to listen to much oif the material.

This is more than a hammer to crack a nut - it's an imaginary hammer cracking all the fruit in the world as well as the nut. (Yeh maybe the metaphors are getting out of hand.)

Think about it. If you like A3, do write to BERR (or do anyway) - the consultation closes on October 30.

Write to Michael Klym / Adrian Brazier
Communications & Content Industries
Department for Business, Enterprise & Regulatory Reform
1 Victoria Street
London SW1H 0ET
Tel: 020 7215 4165 / 1295 Fax: 020 7215 5442
Email: /

Monday, July 07, 2008

Result of IMCO vote

For those who have been following this saga, the pretty much expected news was that all the amendments went through. They now get voted on with the rest of the package on I think Sept 7.

The good news, as far as Pangloss is concerned, is that the drafter, Malcolm Harbour, got interviewed at same time as me by the Beeb, and reiterated, as he had in return emails to voters throughout the day, that it was absolutely not the intention of the amendments to lay the foundations for legitimising member states introduction of "3 strikes and you're out". Pangloss is relieved to hear this.

Harbour added that if the amendments could be so interpreted, were too wide basically, then he'd be happy to accept other amendments making it clear this wasn't intended to be the case.
Pangloss thinks this an excellent way to proceed, and hopes there is an opportunity in the remaining legislative process to tighten these provisions up in a way that retains their public interest intent (eg public education about child pornography) but could not be subsequently misinterpreted as legitimising 3 strikes legislation.

Harbour and I may be on R4 later depending what else happens in the news - it will definitely apparently be on Radio 5Live later, and online, and a full version of the interviews may be on iPM , the online version of the Radio 4 show which podcasts on Saturday.

It's been an interesting couple of days. I am now going to back to writing Law and the Internet!

UPDATE: You can hear the debate between Malcolm Harbour MEP and myself here, including his concession re future amendments.

Something completely different

As a break from all this changing the world, the wonderful Lex Ferenda has drawn my attention to this:

. when is a crisp not a crisp? When it's a Pringles!

No this isn't IPKat

See Procter & Gamble v HMRC [2008] EWHC 1558 (Ch) and in particular the glorious write up here.

Food gets a 0% VAT rate. But potato chips and potato crisps get 17.5% VAT food as "snack food", the case explains. Where do Pringles fall? According to Pringles, they are zero rated, because unlike crisps, they come in a tin and contain potato flour as well as potatoes! ((And also unlike crisps, are horrible and smell, says Pangloss - but without prejudice..)

This might make you think, says Daithi, that that " the intention was to classify food like potato crisps as non-zero for policy reasons. But the judge says (perhaps with tongue in junk-filled cheek), in dismissing Revenue’s policy arguments (that the idea of denying the zero rate to potato crisps was an anti-junk food policy):

[The Tribunal below accepted] that in general the intention of Parliament was to standard-rate food that was not purchased primarily for the purpose of nutrition. However, one must be very careful about reading too much into the statutory provisions. It cannot, in my view, be said that the legislation shows a clear policy to tax “junk food”. What difference, one might ask, is there between a turnip crisp and a potato crisp in terms of its “junkiness” or otherwise? One might think that the answer is very little and yet the former is zero-rated and the latter standard rated. It is not difficult to multiply examples of that sort. There are plenty of “junk foods” which do not fall within any of the exceptions from zero-rating for food; there are also examples of healthy foods which are standard rated, for instance freshly squeezed orange juice available in supermarkets which falls within excepted item 4.

Indeed, extracted from the judgement (summarised by me, actual listing in appendix to judgement), we can see that Pringle-buyers are also likely to buy other zero-rated products such as KP Skips (no longer with potato ingredients), Doritos, Quaker Snack-a-Jacks, Jacobs Twiglets and Mini Cheddars (biscuits) or standard-rated products such as Monster Munch (no potatoes but content made from “swelling cereal” which attracts standard rate); McCoys (conventional potato crisps); KP Hula Hoops (because of potato flour); Walkers’ Quavers (potato flour); Walkers’ Potato Heads (with actual potato)."

Daithi is of course, Irish and thus inherently pro-potatoes. He is also emerging as the Charlie Brooker of IT law:-)

More Stealth News

The story has now been picked up by The Register quoting La Quadrature de Net.

The comments contain one from someone who wrote to Malcolm Harbour as his MEP and received a form response on the amendments in question. The relevant part is below:

"Amendment H2 asks national regulatory authorities to promote - not force - cooperation, as appropriate, regarding protection and promotion of lawful content. It is entirely independent of "flexible response" and does not prescribe the outcome of any such cooperation.

As opposed to the text proposed by the Commission, amendment H3 shifts the burden of explaining the law from the ISPs to the appropriate national authorities. It also broadens the concept so that any type of unlawful activities are covered, not only copyright infringement. Such other activities could be for example child pornography. This public interest information would be prepared by the relevant national authority and then simply distributed by the ISP to all their customers. It involves no monitoring of individual customer usage of the internet. [italics added]

None of the amendments have been drafted by any outside lobbying organisation."

This may all be accurate in Mr Harbour's view although I would suggest that amended recital 12c actually speaks against the part I have italicised. However ,Pangloss sticks by her legal analysis in posts below - H2 and H3 can indeed be read in a benign way, but they can also be interpreted widely enough, in my opinion, to allow a national legislature to install a "3 strikes and you're out" type regime. That would be a matter for debate in each member state, of course, but this would certainly be a useful place to start, given the opposition even Sarkozy has aroused in France.

One is reminded of the Data Retention Directive: see Judith Rauhofer's excellent analysis of how when Tony Blair ran into troubles getting the data retention provisions he wanted through Parliament, he simply shifted his ground to the EP (where the UK then held the EU presidency) and won there. The resemblance to this battle ground is startling. Technollama has also pointed out that there is recent history of unpopular laws being buried in unlikely European legislation to get it through - the software patent provisions, which were in fact eventually defeated, were at one point proposed via a fisheries committee.

If MEPs have been criticised for acting in good faith, that is very unfortunate, but these amendments remain highly worrying from the perspective of human rights, clarity of lawmaking, and the rule of law.

EDIT: same views expressed in ZedNet by self and others -
See aso excellent piece by Bill Thompson on BBC tech blog .

Saturday, July 05, 2008

Stopping legislation by stealth: the fight back

Further to my last post on possible stealth attempts to introduce 3 strikes and you're out - or some equivalent - across Europe, with key votes on Monday July 7 (the final MEP vote will be Sept 7) - Hugh Hancock of Strange Company, the UK's premier machinima outfit, has done really amazing stuff - all while I drove to Cambridge and went to a BBQ, convinced I had done all I could in the tiny amount of time available.

Hugh now has a campaign page up . PLease have a look, and please link to it, and disseminate it.

It has a clear message, a very simple and effective animation (machinima! natch!) and a link to an easy way to mail your MEP asking them not to vote for this legislation without examining it. Please use it. I just did it and it only took minutes. Feel free to refer to my previous blog post if you want too.

Oh and there's a Facebook group at too.

Thanks. I am really heartened at the geek ability to mobilise :)

Friday, July 04, 2008

Three strikes and you're, er, confused..?

This is long. Get a cup of tea. Sit down and put some chill out music on. But there's a surprise at the end, I promise :)

The story so far: long ago in a galaxy far away in , ooh, March 08, a rumour swept the land that UK ISPs were going to be co-opted by the content/music/movies industry rightsholder groups to apply a doctrine originating from France, and known as "graduated response" or colloquially, "3 strikes and you're out", as part of the continuing battle against the Forces of Evil, namely illegal downloaders/fileswappers.

Under a "3 strikes law", ISPs must warn a detected uploader (or possibly downloader) if they appear to be breaking copyright law. On the third such warning, access to the ISP is disconnected. If such a doctrine is applied by law (or as a voluntary agreement by all ISPs, as "soft law" to fend off "hard law" regulation, then effectively the price of filesharing becomes banishment from access to the Internet.

Pangloss gave a talk on this at the LSE which was reasonably well received in which I asserted that such a step would be illegal under EC law, both because of the hosting and mere conduit exemption from liability for third parties applicable to ISPs under Art 13-15 of the ECD; and because the "penalty" would be disproportionate to the "offence", and thus fall foul of various human rights guarantees in both the ECHR and the EC Charter of Rights.

In particular, access to the Internet for all members of a household might be suspended even if only one person the household had file-shared - or perhaps even a mere friend , guest or user of an unsecured wi fi network. This is because filesharing can only be detected as connected to a particular IP address; and IP addresses identify only a particular computer, not the person using it. A final problem might also be that home machines are often compromised by malware nowadays: how would some one prove it was not them but a remote zombie master who was using their machine to upload or download?

Adjudication and fairness problems also exist: how does the ISP know that an IP address passed to them by the content industry is truely of an illegal file sharer? Difficult grey areas exist of fair dealing and private use, and it can by no means in this our day of the iViewer be assumed that all P2P use is likely to be copyright-infringing.

So far, so bad. After that things went quiet. BERR, the former DTI, said they were bringing foward a consultation paper about "3 strikes and you're out" in the spring but seemed rather unenthusiastic about it with the latest word in June being that the consultation would be delayed till next year (Now why would that be? read on..).

MEPs in the European Parliament voted against it. Even the major ISP, Talk Talk/Carphone Warehouse came out publicly against notice and disconnection despite near-threats from the BPI. A reported attempt by the ISPA, the ISP's own trade asociation to broker a 3 strikes and you're out equivalent prgramme for video/movies, also appeared to die the death. In France, opposition also mounted against the proposed law, but the bill was proposed anyway. Was this the end for 3 strikes or not?

In the UK, developments seemed to take a different turn. First Virgin, one of the "big 3" ISPs , agreed to go in with the BPI on 9 June on a so-called campaign to "educate" users. Users would be warned that they had been detected swapping infringing tracks and to stop, but apparently no actual proposed sanction was included in the letter.

When the first letters arrived c 3 July to 800 Virgin users, all hell broke loose. Students and others (alerted like Pangloss, by that fine news organ , Radio 1 Newsbeat) complained that file sharing was their god given right and anyway, they'd been accused of downloading Amy Winehouse whom they didn't even like (what poor taste, says Pangloss. ) It couldn't have been them; must have been someone using their wi fi network, or a slumber party guest, or a big boy who ran away.

Virgin, stung by information in the latest polls that 63% of their potential subscriber audience had admitted to filesharing, backpeddled and plead that there was "absolutely no possibility" of Virgin taking legal action or banning internet users as part of a campaign against illegal file-sharing on its broadband network. This despite the fact that , embarassingly, "the letters came in an envelope marked: "Important. If you don't read this, your broadband could be disconnected." ." (Bit of a giveaway.)

Interestingly the music industry itself - before the storm broke - presented this not as a one off but as a first stage in attempts to "reach a voluntary agreement with [implicitly, all] ISPs over illegal file-sharing".

Meanwhile, BT the other of the big 3 UK ISPs which unlike TalkTalk had not already publicly rejected "3 strikes", was found in a rather good Register scoop, to have been sending individual letters to suspected filesharers, this time overtly threatening disconnection on further "strike". "If further evidence is obtained of infringement via your internet connection," it writes, "then further action is likely to be taken against you. That action may include litigation against you, as well as the suspension by BT of your internet connection." (This time perhaps deserved as the victim - er infringer - had been caught listening to Girls Aloud. Mon dieu.)

What was an impoverished student in need of a JayZ fix to do? The answer was obvious: leave Virgin and BT and join Talk Talk (or one of the 100s of other ISPs who wanted well out of all this politics and legal risk.) One conspiracy theory Pangloss rather likes, may have been that Virgin were in fact quite keen to lose major downloaders and uploaders: as the current charging model for broadband simply does not reflect the market costs of high usage: it has been said that for some users the real cost of Mbs used would be c £200 a month, not the more normal £10-£20.

But did even Virgin and BT want to lose 63% of their clientele? Probably not. And could all the other ISPs, including TalkTalk be argued into forming a cartel all offering the same policy? Again, probably not. But look!... like the cavalry coming over the virtual hill to the rescue, or the carrot coming to join forces with the stick, the music industry then revealed their ace in the hole on 26 June : stop filesharing illegally and we'll let you go on using P2P but as a legal service, administered via ISPs, with users paying a flat monthly fee added on to their broadband charges, which would then be divvied up back to the rights holders. And aha! this was why the government had been dragging their feet on the 3 strikes consultation, right, because they were brokering this deal? Surely so!

Wonderful, said Pangloss. The answer to all this insane cat and mouse luddism-vs-technological innovation lose:lose scenario we've been dealing with now for, what, nearly a decade? Pangloss has long been a supporter of flatrate levy schemes to finance the correct royalty payments to record companies and artists - ever since she first came across such as scheme back in as promoted by the very clever William Fisher of the Berkman Institute, Harvard, in his book Promises to Keep.

But the music industry has generally not been keen on them, since in theory more profit can be made by a market-driven digitised distribution system such as iTunes, where the industry can still decide how high a price it thinks it can get pers ong or per video, not just what the levy gives it. But hey, any profits are better than no profits right? Or better than 37% of profits anyway. For the average user it would be marvellous: all you can eat Napster, not for nothing but for a reasonable monthly fee. 80% of punters said they'd be happy with that, in the music industry's own poll. It seemed that sanity was at last beginning to prevail.

OK. Deep breath. With me so far?

Menawhile in a galaxy far away.. oh yeh done that bit .. at the European Union we find the reform of the Telecoms law framework underway - known as la Quadrature because it involves reform of (at least) 4 Directives.

Pardon you say. What does telecoms have to do with copyright and P2P?

Well not much, except that both involve Internet access and regulation, yes? The Telecoms reform work is massive, complex, detailed and inpenetrable even to most EC law anoraks. And taking place in the dog days of summer, just before the MEPs go home, and when the academics are already mostly on holiday and the IT journalists want to watch Wimbledon and the Dr Who finale. And over the US Fourth July weekend. The perfect time to bury a copyright bomb.

I have been helpfully given a briefing document by Monica Horten, PhD researcher at the University of Westminster and part of La Quadrature du Net, anti 3-strikes civil society body, which is difficult but alarming reading. Monica has made a close study of someof the proposed amendments to the Telecoms reform package, which have in the main been pushed through committees by industry lobbying and are scheduled to come up for voting on July 7. Yes - in 3 days time. There are 800 amendments and only a handful concern copyright. This is a legislative needle in a haystack. I have seen no publicity for these very important amendments except one report in EDRI-gram: the general press seems unaware. I have checked the amendments myself , but it has to be said however, that interpretation of what exactly they mean is in many cases difficult. Full details can be found in Monica's brief and at the Quadrature de Net page.

Monica suggests that the amendments promoted by copyright interests will, if passed on July 7:

1. Impose an obligation on ISPs to "co-operate" with the content industry in removing filesharers from the Web. In EC speak , this is almost certainly a euphemism for being required to put in place a system akin to a 3-strikes regime and is certainly capable of being interpreted that widely in implementing legislation.

The Internal Market committee report (IMCO) amendment, promoted by UK Conservative MEP Malcolm Harbour, specifies that

"national regulatory authorities and other relevant authorities shall also as far as appropriate promote cooperation between undertakings providing electronic communications networks and/or services and the sectors interested in the protection and promotion of lawful content in electronic communication networks and services. These co-operation mechanisms may also include coordination of the public interest information to be made available as set out in Article 21(4a) and Article 20(2).

The reference here is to another amendment to the same Directive, which would require ISPs to regularly distribute "public interest information" to all users including "the most common uses of electronic communications services to carry out unlawful activities or to disseminate harmful content ". This could be interpreted as narrowly as basic information on copyright (arguably, fine); or it could be clear information from the ISP that a user had been accused of illegal filesharing by a rights holder (a "strike"). The use of the word "also" (enlarged by Pangloss) suggest that the co-operation envisaged is certainly more than just the mere provision of information/warnings.

Interestingly also, proposed recital 12c provides that "Such public interest information should be produced either as a preventative measure or in response to particular problems". This is I would argue clearly wide enough to cover the "strike" interpretation as well as the "general info" interpretation.

This , as French commentators have recognised, thus potentially puts in place all the groundwork of warnings, and legal requirements, for 3 strikes to become law throughout Europe, or at least in whichever of the national legislatures chooses to adopt the wider interpretation (s).

In conclusion, I am worried . Worried at the lack of consideration for what the public wants; the lack of balance between legitimate protection of IPRs, and vital interests such as the access of students and workers to the Net, as well as of the families of alleged filesharers; the apparent disregard for privacy and the personal data safeguards of the data protection laws; the apparent washing away of the E-Commerce Directive immunities; but more than that, aghast at this blatant attempt to sneak through vital changes to the law without proper notice or debate, across Europe, in the Trojan horse of a giant and extraordinarily hard to understand reform exercise.

Hence this rather long post :(

NOTE: this post was edited on 6 July 2008 to make clearer and explicit reference to the exact text of the amendments proposed.

The sweet smell of success

OUT-Law reports (inter alia) that perfume seller LVMH has won its action against eBay for allowing resales of its luxury prfume brands:

"Online auction site eBay has been fined £31.5 million and ordered to forbid the sale of some luxury perfumes in a French court order designed to battle the sale of counterfeit luxury goods.
Handbag, clothing and perfume company Louis Vuitton Moët Hennessy (LVMH) sued eBay in the French courts, claiming that the company did not do enough to combat the sale of counterfeits of its goods.

EBay claims that it cannot police all the sales through its site and that it makes no guarantee that goods are genuine, and that it suspends counterfeit auctions when notified of them.

The French court, though, found "serious faults" in eBay's processes [the VeRo procedure] that led to auctions of counterfeit goods going ahead. By allowing the sales, it said, eBay had damaged the reputation of luxury brands such as Louis Vuitton and Christian Dior.
EBay said that it would appeal the verdict."

As Pangloss has noted many times before, this is yet another strike against the once prevalent assumption that eBay would be a host under Art 14 of the EC E-Commerce Directive and thus not liable for content related infringements of the law where others were the authors. At the moment eBay are required to remove listings only upon actual notice; what Louis Vuitton, and Tiffany and all the rest want is for eBay to do the work of filtering out those listings in advance, by filters or however.

Combined with the "3 (1?) strikes and you're out - well, we told you so" campaign (see next) and the anti-child porn brigade, it has to be said that the ECD immunities of Art 13-15 - including the requirement that the state not ask ISPs or hosts to proactively monitor or filter in Art 15 - look increasingly like dead ducks.

Things look to be going the same way in the US as well, with both the CDA s 230c immunity under fire in the US Tiffany litigation, and DMCA immunity attacked in the ongoing Viacom v You Tube battle, which seems to have re awakened into violent life. Wow. Interesting times. This combination of factors is what Chris Marsden of Essex has insightfully been calling the "perfect storm" which is sooner rather than later going to overwhelm the 2000 consensus on immunity for online intermediaries, as well as net neutrality (plug - see chapter in upcoming 3rd edn Law and the Internet!).

Perhaps the debate should start to be not about what Art 14 means, but about what is to replace it when as expected proposals for reform of the ECD start to appear in the autumn. The content industries wil have all their arguments marshalled already: those of us who worry about freedom of expression, surveillance by DRM, loss of private data and promotion of innovation should start thinking about ours too. Judging by the Telecoms Framework Dirctive amedndments (see next), significant EU reform may arrive when we least expect it with little time for debate.

Thursday, July 03, 2008

Good god

Pangloss has just discovered that apparently way back in April she was nominated as one of the best IT law/governance blogs in the Computer Weekly blog awards. Good lord!! However my bet is that Technollama will win - sigh I should never have passed him that Dr Who story:-P

Apparently I'm meant to display this:


Despite this obviously being a thinly disguised attempt to boost the hit count on CW's website, er, vote me! Or I'll make you read my latest poem, er sorry, 14,000 word data protection chapter..

Actual content coming very shortly actually. With a SCOOP! and FREE GIFT! and NEKKID GIRLS! Well, the first bit was true, actually..