Oh Lily, Don't be Silly

(via Boing Boing) This open letter to Lily Allen, set to the tune if one of her own songs is rather endearing. I don't agree with this all-out anti all music IP stance, but I can imagine this being fun to kick start a debate with my students in a few weeks time, as it's surprisingly well argued..



ps I like Lily Allen's work too and own actual copies of both her CDs to date..

.. and the unbearable addictiveness of data

This piece from the Guardian about information overload addiction is so relevant to I suspect 105% of my audience I'm just going to quote most of it (originality is so last millennium):

"...In case you got sidetracked and didn't get a chance to read the rest, here are the cold, hard facts:

• A study found that once workers were interrupted by an email it took on average 24 minutes to return to the suspended task.

• 2,300 employees judged nearly one third of the emails they receive to be unnecessary, but spend two hours a day processing them.

• Research reported that the IQ scores of people distracted by email and phone calls fell from their normal level by an average of 10 points – twice the decline recorded for those smoking marijuana.

To be honest I had to go and sit in a dark corner without the ring of a phone in earshot or flash of a computer screen in sight in order to concentrate for long enough to bring you this blogpost, and even then it was tough. How we get anything done is a miracle.

But before your attention wanders elsewhere, please confess the tendencies you have noticed in yourself that may be symptoms of this very modern malady. Perhaps you are raising a BlackBerry orphan, or can't remember the last time you finished reading a novel."

Right I'm of to re-check Facebook, Blogger, Twitter, Out-Law and LiveJournal :-)

The Unbearable Cynicism of Being

One strange side effect of Law and the Internet 3rd edn coming out has been that the geeks have noticed a law book has an XKCD cartoon on the cover. I was pretty pleased when a friend of that persuasion passed me a link to Reddit.com where someone had kindly started a thread called "Probably the best front cover for a law book you wil ever see.. xkcd!"

I was less pleased though when reading down I found a bunch of people had independently assumed we had stolen the cover, ie used it without permission from Randall Munroe, the creator of XKCD. It seemed the joy of imagining a law book containing chapters on copyright on the Internet had pointedly ripped off an actual IP creator, outweighed the inherent utter unlikeliness of such a tactic. The fact that I'd written here in easily Googleable form about how delighted I was that we'd been given permission also didn't stop some doubters (though to be fair, a minority).

So when I posted to say that yes, actually we had permssion, and Randall had given us it for free, what a sweetheart! I thought everyone would be relieved. No, that merely provoked A`N Other geek, no doubt pissed off a losing sight of an easy target, to post under my own name, ("theRealLilian Edwards") saying I'd lied about this in public. Meanwhile someone else posted, after I had made my correction, asserting that the legality was still in doubt. (EDIT: now amended, ta.)

It's this sort of thing writ large that gives geekdom and the blogosphere the bad reputation it has with people as diverse as the Daily Mail and my mum. I know on the scale of things this hardly compares to being pursued by dubious paparazzi making up lies about one's love life, but it left a bad taste in my mouth. I am, as I usually say, at least part-geek myself, and this cover was in a way my gift to myself and the geek community. It has thrilled me to use it. I was hurt people could think we could be so stupid and malevolent as to use it without consent.

Andres Guadamuz spoke eloquently about technophobia at GikII Amsterdam , one of his prevailing themes. The usual reasons that get cited as to why people react to a technological society badly are a combination of ignorance, fear of change and media manipulation. To these I would add that geek culture - and much of web 2.0 culture - is a product to a large extent of the Asperger's spectrum and leans towards the tactless, rude and pointlessly combative. This is fun when you're in your teens and twenties, less later on when life is already too full of the stresses of work, mortgages and parking fines to want to get a blast out of a right-on hardcore flame war in your leisure time. Politeness and forethought become the new anti-authoritarianism.

Matthias Klang says on Twitter he's writing a chapter on web 2.0 and integrity. I'm beginning to be tempted to write something on web 2.0 and social dysfunction myself..

Google 1: Luxury Brands 0!

Pangloss is pretty bushed after the excellent SCL Policy Forum (thanks to co-chairs Chris Reed, Judith Rauhofer, and gracious hosts Herbert Smith) but just has to bring this breaking news; the Advocate General's opinion has come out (via Joris Hoboken), in the hotly awaited ECJ reference in Luxury Brands plc (OK, see real parties below) vs Google, on whether Google is liable for trademark infringement as a result of its keyword based "AdWords" service. The meat of the opinion is that Google is not liable for selling keywords to advertisers which correspond to trade marks owned by others, since the use of the TM, such as it is, is restricted to the relationship between Google and the advertiser, and is not aimed "outwards" at the user, thus not causing customer confusion.

TM lawyers will have plenty to say on that part but for Pangloss, the real excitement is what this says about search engines as immune or liable intermediaries under the EC Electronic Commerce Directive. The AG opinion (available in full now, since I started writing!) is not binding on the court but often predicts the likely result :

Advocate General’s Opinion in Joined Cases C-236/08, C-237/08 and C-238/08
Google France & Google Inc. v Louis Vuitton Malletier, Google France v Viaticum & Luteciel and Google France v CNRRH, Pierre-Alexis Thonet, Bruno Raboin & Tiger, franchisée Unicis

"..Mr. Poiares Maduro also rejects the notion that Google's actual or potential contribution to a trade mark infringement by a third party should constitute an infringement in itself. He opines that instead of being able to prevent, through trade mark protection, any possible use – including many lawful and even desirable uses –, trade mark owners would have to point to specific instances giving rise to Google’s liability in the context of illegal damage to their trade marks. [bold added]

In this context, the Advocate General finds that both Google's search engine and AdWords constitute information society services. He adds that service providers seeking to benefit from a liability exemption under the E-Commerce Directive should remain neutral as regards the information they carry or host.[bold added]

However, whilst the search engine is a neutral information vehicle applying objective criteria in order to generate the most relevant sites to the keywords entered, that is not the case with Adwords where Google has a direct pecuniary interest in internet users clicking on the ads' links.

Accordingly, the liability exemption for hosts provided for in the E-Commerce Directive should not apply to the content featured in AdWords."

Pangloss Sez: Wow that is interesting. So, it seems we have a clear and defiant rejection of the content industry-lead idea that IP holders can command online intermediaries - or just search engines? - to undertake prior blanket filtering to prevent alleged infringement of their rights. The context of AdWords is very different from that of Viacom v YouTube (for example) of course, but does this point to how we may see an upcoming ECJ reference panning out on liability of web 2.0 sites, like eBay, and in particular, whether they can be compelled by the likes of LVM to proactively filter out content, rather than run, as now, on a post factum notice and take down paradigm? See discusion of conflicting cases in US, Continental Europe and recently England on this controversial point, here.

On the other hand we also have a clear steer from the AG that where ISSPs like Google make money out of their "neutral" activities in hosting or linking to content by monetising them via connected advertising, they remain ISSPs but nonetheless become fair game for liability, and are no longer "neutral intermediaries". Would this mean that YouTube, who perhaps occasionally host IP infringing user generated content :-) and monetise this hosting via ads, could be commandedby a court to filter proactively, as opposed to simply wait for NTD; while, par contraire, eBay, who also sometimes host infringing content, but make their money from unconnected user commissions, not ads, would not be so susceptible and could continue to depend on expedient NTD to retain immunity?

Oh this is going to be fun :-)

Facebook and privacy

Via Andrea Matwyshyn - after the Canadian reforms and this, what next?

"A Look at the Facebook Privacy Class Action (Beacon) Settlement

Facebook announced on Friday that it settled the class action challenging its "Beacon" advertising program. [Inside Facebook; h/t Jim McCullagh on Twitter] You can access the key docs here: [pdf] (Settlement Agreement; Motion for Preliminary Approval).

Net result? Facebook establishes a privacy foundation funded with $9.5 million (or what's left of this amount after attorneys' fees, costs, and class claims are deducted). "

Unlikely Events..

The much spoken off here book actually came out on its pre announced publication date , and I got my copy today!
Many thanks to all the contributors and the staff at Hart who worked against all odds to achieve this miracle :-)
Thanks to Randall Munroe at XKCD for the delish cover.

And to the rest of you - hey, 700 pp for £30! Never mind the quality , feel the width! Hmm, Perhaps this is not the best way to market an academic text? Ah, everyone's a critic :)

Next GikII, SCL and start of term. I may be some time ...

Wow, NOT a File Sharing Consultation..

.. and not three strikes!

Instead the EU with remarkable common sense has issued a Communication suggesting some non legislative ways to (additionally) crack down on filesharing and counterfeit sales on the Internet.

"The Commission aims to ensure a highly efficient, proportionate and predictable system of enforcement of intellectual property rights, both within and outside the internal market. The current legal framework provides the tools to enforce intellectual property rights in a fair, effective and proportionate way.

Complementing legislation, the actions in this Communication aim to:

• support enforcement through a new EU Observatory on counterfeiting and piracy which will bring together national representatives, private sector experts and consumers to work to collect data on and analyse the scope and scale of the problem, share information, promote best practices and strategies, raise awareness and propose solutions to key problems;

• foster administrative cooperation across Europe by developing coordination to ensure that more effective exchanges of information and mutual assistance can take place. As a result, Member States are called to designate National Coordinators. An electronic network for information sharing will also need to be available .

• build coalitions between stakeholders to overcome conflicts and disputes, by developing collaborative voluntary arrangements that focus on concrete problems, such as the sale of counterfeit goods over the internet, and are capable to adapt quickly to changing markets and technology. Such agreements can also be more easily extended beyond the EU and become the foundation for best practice at global level.

The Communication results from the Commission's IPR Strategy for Europe adopted last year and builds upon the recent Council Resolution on a comprehensive European anti-counterfeiting and anti-piracy plan."

Naturally, content industry unimpressed:-)

(via Michael Geist)

EDIT: Meanwhile however one asks of course, but what of the Telecoms Package and when is the conciliation process taking place, after the failure of the second reading procedure?

Helpfully , the new EDRI-gram tells us :

"Preparations are being made in the EU institutions for the expected third
reading of the Telecom Package. The timescale for the remainder of the
legislative process will be determined by the official communication of the
Council Common Positions to the Parliament. In theory, this can happen as
late as mid-October, meaning that the final agreement could happen as late
as the end of November or early December.

..The Member States can be expected to push for as much of the Common
Position as possible to be retained and to push again for the
"compromise" that was agreed with the Parliament negotiators on
Amendment 138 in the first reading (but not adopted). "

Watch this space!

A Very Peculiar Scottish Practice & fin de Festival muscellany

Pangloss is in Estonia where she hopes to blog more tomorrow, but in meanwhile, while desperately trying to catch up post far too much Edin Festival indulgence, was delighted to see this tartan trivia below on Lawrence Eastham's excellent blog for the Society for Computers and Law:

"Solicitors on YouTube

Are Scottish solicitors Inksters the first firm to have a dedicated YouTube channel?

The Glasgow-based firm Inksters hope to ‘keep ahead of the legal technology curve with the launch of a YouTube channel’. The channel contains an initial five films which are also available at inksters.com. These include films on The Home Report, one about windfarming on croft land and another on the House of Lords case: Moncrieff v Jamieson (featuring SSCL Chair Iain G Mitchell QC). Brian Inkster said ‘putting these films on YouTube will bring them to a wider audience. It is a natural extension of the Web 2.0 policy we have been pursuing at Inksters. We were the first Scottish law firm to Twitter earlier this year and we are perhaps now the first Scottish law firm with a dedicated YouTube channel’.

The YouTube videos are at www.youtube.com/inksterssolicitors

Not only that but I *think* I've scooped venerable Scots Law News here! Drag your eyes away from Ally Megrahi (that well known footballer), team.. (Opps EDIT: no! See here.)

I've also very belatedly updated my blog roll a little to include a few excellent newer blogs including Datonomy, on personal data with a stellar UK practitioner line up, and Simon Deane-Johns's useful round up of consumer law,Pragmatist, including some very pithy comments on the seemingly endles revision of EC online consumer law.

From Datonomy, I learn that the UK ICO rather quietly commissioned research in August to price a business case for businesses to invest in privacy; effectively aiming to find out how much businesses might save by proactively investing in privacy rather than waiting for the security breach headlines to hit the fan. How interesting, and how topical, but it certainly seems to move us a long way from privacy-as-a-human-right to commodified privacy-as-property doesn't it?

Oddly enough Pangloss will be speaking on this very topic at the upcoming special-value one-time-only credit crunch SCL Policy Forum in September (fee payable with 6 months 0% credit - no not really) , so if anyone else wants to comment or has interesting worked examples (please show figures:-) of the (alleged) value of privacy to either consumers or businesses, please do comment!

So for me upcoming on the intergalactic talk schedule (just call me Cyber Wogan), it's Estonia for cyberwar, Amsterdam for death (2.0 variety), and London for poverty and privacy. The Three Horsemen of the IT Law Apocalypse. What does that leave? Rains of frogs I suppose..

Anti 3 Strikes Petition

Via 38 degrees and ORG:

"Pressure is building today on Lord Mandelson to stop rushing through his plans to cut the internet connection of anyone that downloads copyrighted material. Today, a coalition of musicians, songwriters and producers spoke out calling his plans, "Expensive, illogical and extraordinarily negative". [1]

Since we launched our petition last week, hundreds of us have signed up to ask Mandelson to stop rushing through new rules. Now, if we all work together and ask our friends to sign, we can quickly make the petition grow even bigger. Please can you forward this email and ask your friends to sign by clicking this link?

http://38degrees.org.uk/message2mandy

The artists which include Sir Paul McCartney, Sir Elton John and Damon Albarn said in their statement today that "We vehemently oppose the proposals being made and suggest that the stick is now in danger of being way out of proportion to the carrot." Meanwhile, internet service providers and consumer groups, including BT and Which?, today warned that these plans will create a Kangaroo court which would "place serious limits on freedom of expression" in the UK. [2]

Only in June this year the government had ruled out draconian measures like these but it appears Mandelson decided to change government policy just days after a dinner with an industry executive in Corfu.

If enough of us take action, Mandelson will have to back down. Recently, he had to give up on his plan to privatise the post office after a popular outcry. Please help by asking your friends to sign the petition by clicking this link:

http://38degrees.org.uk/message2mandy


Thanks for getting involved,

Hannah, David, Nina, Johnny, Warren, and the 38 Degrees Team



[1] See for example here: http://www.guardian.co.uk/technology/2009/sep/03/youtube-prs-deal-file-sharing

[2] See for example here http://www.timesonline.co.uk/tol/comment/letters/article6819093.ece "

Pangloss: Do I need to comment further?

How to Make InGame Ads work

Intriguing piece on research going on into how to make placed in-gane adverts work and not upset the punters:

"Television is a problematic market for advertising to certain demographics, and it's no secret that magazines are in trouble. Online destinations are just starting to come into their own. So where does that leave opportunities for advertising? Video games. A new study, attractively titled "Eye-tracking Analysis as a Means to Visualise the Effects of In-Game Advertising" by 11 Prozent Communication and the University of Offenberg shows that marketing to gamers can be very effective... if you follow the rules.

The first challenge is to make sure the ads fit into the game world. "Advertisements that do not fit into the context or do not provide more realism to the setting of the game or even obstruct the game’s flow, might ruin the whole effort and generate irreparable damage," the study stated. Sports games and racing games are easy in this regard; we're used to being deluged by ads at both types events in real life... why should gaming be any different?"

Pangloss has been intrigued ever since she discovered in 2007 that Google hadfiled a patent for extending their targeted advertising model into advertising presented in games, using information collected in games , via both networked consoles and/or online games. Google have since said they have not followed up that patent but if in-game advertising is the next big thing someone, somewhere, will surely design a Phorm for online games?? After all people play these things for DAYS. Who could resist such a fertile source of personalising data??

Which really does make you wince because think of the information that would be collected - "hmm , this guy regularly tortures, kills and buys virtual genitalia. Oh and he's a junior civil servant with 3 kids (we got that from Doubleclick) but in the game he's a green alien called Grrrarg who despises all females . . Quick, advertise an extreme porn cable channel to him!" Hmm....