Wednesday, November 14, 2012

Come study with me! PhD studentship in copyright

Research studentship in Data Mining and Copyright Law 

This 3 year full-time PhD studentship is offered with a start date of January 2013 or as soon as possible thereafter. The successful candidate will receive an annual stipend of £13,590 and a fee-waiver for those eligible for Home/EU fees (2011/12 rates).

This studentship will be co-supervised at Strathclyde University between the School of Law and School of Business. The research topic  forms part of the work programme of a large four-year £8m Centre, CREATe, the Centre   for Creativity, Regulation, Enterprise and Technology, which is a consortium consisting of the Universities of Glasgow, Strathclyde, Edinburgh, Nottingham, St Andrews UEA and Goldsmiths, alongside over 80 industry and public sector arts partners.  The studentship will be co-supervised by Professor Lilian Edwards (Law) and Dr Stephen Tagg (Business). Profesor Edwards is also Deputy Director of CREATe, whose lead institution is Glasgow. It is expected the successful candidate will be given opportunities to interact with the rest of the CREATe team and its activities. The student will have access to facilities in both Faculties and be based physically at Strathclyde.

The project to which the studentship is attached is shared between Strathclyde and the Horizon Digital Economy Hub at Nottingham, and   deals with the legal, technical and social issues around data mining and the cultural industries. Data mining allows new data to be extracted from old by automated means,  ie, from existing large sets of texts or data. Examples include mining existing databases to create profiles about data subjects for use in targeted advertising; police use of data-mining of social networks for law enforcement and surveillance; and research use of datasets, eg, comparing incidences of words in variant texts of Shakespeare plays, or looking for new drugs by analysing existing papers on drug formulae. The recent Hargreaves report on copyright reform recommended a limited new exception to copyright for data mining, but this is opposed by industry players such as the publishers’ association. The PhD candidate recruited will be expected to work on the copyright and other legal as well as business and cultural implications of data mining.

Applicants can come from any relevant background including science, technology, law or business, but a basic understanding of and interest in intellectual property law is desirable. Candidates should have at least a good 2:1 Honours first degree in relevant discipline  and a relevant Masters is desirable though not essential.

Deadline for receipt of completed applications: Monday 17th December 2012.

Please send covering letter explaining why you want to do this PhD, cv including full academic qualifications, and indicate two referees, at least one academic.

Informal enquires: Please contact Professor Lilian Edwards ( )

For further project details and information on how to apply please contact:
Patricia Bunce, Graduate School Manager, Faculty of Humanities and Social Sciences, Room LH128, Lord Hope building, 141 St. James Road, Glasgow

Email:         Tel: +44 (0)141 444 8452

Monday, October 29, 2012

Skyleaks? or Dye Another Day

Like most the UK, Pangloss went to see the new Bond flick Skyfall at the weekend. It's still a right rollicking ride, hugely enjoyable and proudly British, and Pangloss loved most of it (especially the reference to the A9 as a major highway which made most of  an Edinburgh audience collapse in laughter).  I could have done without quite so references to Bond getting on, being an old dog etc. as Mr Craig is quite plainly fitter than a very fit fiddle and all he needs to do is put a bit of Grecian 2000 on those grey chest hairs. But that's not why I'm writing this blog (though it would be nice to explore the very odd showdown between Bond and Javier Bardem, the homoerotic nature of Bond passim and the wonderfully deconstructive implication that 007 is no stranger to the Love that Dare Not Speak Its Name. But anyway.).

No the major  interest for IT lawyers in the new Bond is almost certainly that the villain is Julian Assange. Yes, really.  When we first meet "Mr Silva", he is in a room surrounded by computer servers, lecturing Bond (tied appealingly to a chair, though sadly with more clothes on than in Casino Royale)  on how running-around espionage is passe and how he can destroy governments, change the world and topple regimes from his own desk by use of computer technology. Later on his master plan involves stealing a list of all Western intelligence agents and leaking them, 5 at a time, to the Internet. Finally, Javier Bardem, the actor portraying our digital dissident, has naturally black hair but for purposes of film is dyed Boris Johnson blonde.  Clearly, Silva = Assange and I am not the only person to have thought this by any means.

What fewer of the mainstream film review columns have referred to is the rather disturbing pro-secrecy  agenda of the film connected to the threat posed by Silva/Assange. Well, you say as one, it's a film about a secret agent , what did you expect, The Audacity of Hope? Well indeed, and certainly Sam Mendes the director seems a thoughtful man not some Cameronian stooge. But as the Guardian Comment is Free column does note, Bond always reflects the cultural zeitgest, and its villains even more so: and setting up in opposition, James Bond, recently seen jumping out of a helicopter with the Queen, and M/Judi Dench , best known for portraying various Queens of England ,  against the deadly threat to freedom of justice of Wikileaks, is certainly an interesting spectacle for the average liberal  Internet commentator.

Having picked Wikileaks as the villain though, what is even more interesting is the completely Homeland  approach the film then takes to the security services. Topically, the film's semi-climactic scene centres on Judi Dench as M defending MI6 at a Parliamentary Hearing, as not an outdated boy's game but a still relevant essential service . Under fire, M/the Queen says (I paraphrase slightly): "Who needs all this openneess, transparency and accountability lark? There are terrorists out there who are more invisible than Reds under the bed! They don;t even have the decency these days to come from an actual country we can nuke from orbit, damnit!  So why would you rather feel safe and trust us, the guys that know stuff, or have all these pesky civil liberties and judicial enquiries?? "

The subsequent shoot out in the House of Commons in which the MP i/c MI5 (hunky Rafe Fiennes)  throws away his Rules of Order, pulls out a gun and turns into the Sundance Kid to Bond's Butch Cassidy subsequently  proves (of course )that M is  right.

All this seems mightily topical at the time that the Communications Data Bill is itself heading for that big shoot out in Parliamentary committee land. Much has been made of the Bond franchise's recent penchant for product placement. Heineken has been cited this time round as the major customer, with a bottle perched prominently on Daniel's magnificant (if slightly greying) chest in one scene. But wouldn't it be funny if a few used notes had also passed hands  for a certain government department - delivered perhaps in rain-mac and dark sunglasses by Theresa May?? :-)

Friday, September 28, 2012

Creativity, Innovation and all that jazz

Pangloss was honoured earlier in September to be asked to speak at the launch of the Lisbon Council’s new publication on Intellectual Property and Innovation: A Framework for 21st Century Growth and Jobs, to which I also contributed. The collection is co-edited by Ian Hargreaves far famed writer of the Hargreaves Report, the current major blueprint for UK copyright reform, and the keynote speaker was Nellie Kroes, Vice President of the European Commission (her speech can be found here and has been widely reported as a bright light in the ongoing content wars.) Multiple photos of the event are also here.

This event was a little unusual , for Pangloss anyway, in that the Lisbon Council had energetically sent out a Belgian surrealist photographer to the home abodes of all the contributors to take pix of us, not only in our natural habitat, but with the intent of showing our true souls :-) Thus Pangloss evocatively had a lovely day out in Edinburgh taking Bart Goossens (the photog) around nice restaurants at the waterfront in Leith (see photo above!), followed by afternoon tea at the Modern Art Gallery and finishing up with dinner in a pub. That's my soul in a bucket :-)

Anyway the resulting photos are so delightful that Bart has offered a deal to us all whereby we can use the photos he took for non-commercial purposes such as web sites (like this!)  but agree to negotiate a fee if commercial use is made of the photos thereafter. As I prepare my e-commerce class for 2012/13 this seems a nice example of an open content business model, which will almost certainly generate both profit and goodwill. The photos come from where offers should be made for reproduction!

Also - spot the odd one out...

Wednesday, September 26, 2012

2012/13 : the video!

It's become a Pangloss tradition at the start of the new academic yesr to find a new video i can use to scare the students. THis year's conveniently just arrived courtesy of @niccuzor - thanks Nic!

Friday, September 21, 2012

Section 127 Communications Act 2003 - Threat or Menace?

 EDIT: this piece brought in a lot of reaction, for which I am grateful. Partly as a result, a rather more tidied version can now be found here  which you are suggested to jump to (though do comment here!)

(The title , which I have used in various forms before, recalls J Jonah Jameson, the irascible boss of Peter Parker aka SpiderMan whom JJJ of course famously detested. "Spiderman: Threat or Menace?" was his favourite headline and I have been using it ever since, though perhaps never as appropriately as here.)

Anyway. Section 127 of the Comms Act 2003 , once one of the more obscure provisions of the cybercrime world, has had a good workout lately. Famously, Paul Chambers was accused and convicted of sending "by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character" (s 127 (a)) because he had sent a humorous and frustrated tweet  saying : ""Crap! Robin Hood Airport is closed. You've got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!".  (Pangloss can dare quote this in full now the prosecution has been overturned :-)

 After  a long period of #TwitterJokeTrial campaigning and on the third attempt, an appeal court saw sense and conceded that ""a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably be expected to see it, falls outside this provision [of the 2003 Act]". In other words, a joke issued to the world and indeed accessible with identification by the very people it might offend, is clearly not meant to be taken seriously and thus is neither menace or threat for any reasonable person.

Meanwhile, however, s 127 prosecutions continue or are suggested by a public increasingly fed up with racist bullies, trolls, stalkers etc online.  Yesterday a 29 year old man was arrested and charged by the Greater Manchester police, apparently under s 127,   for putting up a Facebook page which appeared to praise Dale Creggan who is accused of the murder of two policeman.

Also yesterday, the DPP, Keir Starmer, was driven by  the rise of s 127 prosecutions and apparent mounting calls for its catch-all use in any case of disturbing content on social media to declare that he would be issuing guidance on social media prosecutions. Asked to consider whether to prosecute an idiot who had made trollish and homophobic tweets about the Olympic diver Tom Daley (note the homophilic photo accompanying :-), the DPP has already correctly indicated that  s 127 is not  a free Joker card for prosecuting content which however upsetting to some, would normally fall with guarantees of freedom of expression in a democratic society. In particular he quoted the seminal ECHR case of Handyside (1976) 1 EHRR 737 which says that freedom of expression includes  the right to say things that "offend, shock or disturb the state or any sector of the population".

Why then, we might ask,  is s 127 drafted so widely? Partly because although it appears to be a modern post-Internet provision , its direct and very close antecedents actually date from long before the Internet era and even before Handyside. These antecedents include the Post Office (Amendment) Act 1935 (and two subsequent PO Acts)  - which dealt with messages sent by post and telephone  -  the British Telecoms Act 1981,  and  the Telecommunications Act 1984, s 43. Section 127 of the 2003 Act basically repeats the 1984 Act provision wholesale, itself almost a word for word repetition of these earlier Acts, changing only the ambiguous application to any "public telecommunication system" (a necessity following the demise of the state monopoly telephone network and the rise of the Internet, and nicked as a phrase from EC telecoms law) whose definition was debated  in Chambers (see further a para or two on..)

This legislative history is narrated in DPP v Collins (para 6), a very interesting decision on s 127, involving a man who made repeated  telephone to his local MP's office asking for him to do something about the "black bastards" - or similar terms.  He was charged with sending "grossly offensive" messages under s 127. On appeal to the House of Lords,  the charge was upheld but the interest for me lies in LJ Bingham's analysis at para 7 of whta s 127 is for.

It is crucial here, parenthetically,  to note that s 127 is not  a lone legislative bulwark against Internet trolls and harassers. Plenty of other legislation than s 127  is available to deal with  content on social networks  which  appears to offends the public . For example, in another current controversial case, 19-year-old Azhar Ahmed is currently facing charges of “racially aggravated public order offences” after he posted an angry Facebook status update about the reporting of the latest British Army fatalities in Afghanistan. Racially motivated tweets posted relating to Stan Collymore and  Fabrice Muamba have also been prosecuted under this legislation.The Protection Against Harassment Act 1997,  which operates slightly differently in England and Scotland, prescribes that  any two "acts" which form a course of harassing conduct can be charged  as a crime. These provisions have been used successfully to charge trolls who send repeated upsetting or vile messages to users on sites like Facebook and Twitter.   Nicola Brookes, eg, to great publicity,  recently won a Norwich Pharmacal order against FB to start procededings under the 1997 Act against her online trolls. An Adjournent Debate in Parliament on 17 September 2012  noted not only these but also the possibilities of using the Public Order Acts and the Computer Misuse Act.  Private civil damages can also be obtained both under the PAHA and by common laws like libel. All these options are well known and recorded in CPS guidance.

Most notably the Malicious Communications Act 1988 still exists  (unlike the 1984 Act s 43, which s 127 replaced)  though it does not extend beyond England and Wales,. Again though a pre-Internet statute, it was updated in 2001 by an amending Act to apply to "electronic communications" - oral or otherwise,  and  not just therefore applying to the poison pen letters which seem to have been the initial target. But the 1988 Act prescribes that the communication must be "sent to another person". It does not anticipate or apply to broadcast or one-to-many communications. These would have been the topic of the bradcastiong laws. And the ease with which a private individual  can nowadays be their own broadcaster using only a  Twitter account would not of course have occurred to the 1988 legislator. So the 1988 Act would not apply to Paul Chambers telling the world about his frustration at Doncaster Airport nor (say) the racists bullies who left tweets for Fabrice Muamba.

So, going back to LJ Bingham in Collins, in para 7 he observes the existence of the 1988 Act and thus deduces that the purpose of s 127 is "not to protect people against receipt of unsolicited messages which they may find seriously objectionable". Instead, it is "to prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society".

This history can clearly be seen of course in the preceding ancestor statutes - which originate from a time of state monopoly services over post and phone.  What LJ Bingham seems to be acknowledging is that  s 127 as formulated way back when, was about not wasting public money on transmitting material which was unpleasant. As such, the  words used forbid categories of speech which would now be permitted speech  in public using the Handyside test - or to put it another way, would be allowed in any pub or park. The proximate reason s 127 is more restrictive than the ordinary law on speech not via electronic means, is  because it involved a public facility such as the postal service, or later, BT.<

Except now it doesn't, or only very  tangentially. Twitter is a private service run on private servers. So is Facebook. People use the Internet to access it, which, yes, involves (sometimes)  use of the facilities of former public utilities, but in essence, the experience of tweeting is as privately funded now as the experience of walking into M & S. In #TwitterJokeTRial, this point was raised  but  the position of the lower courts in Chambers  that  a tweet is sent via a "public electronic communications network" , was upheld .  There Crown Court Judge Davies agreed that "the fact that [Twitter] is a private company is in our view irrelevant" and "the mechanism by which [the tweet] was sent was a public electronic network and within the statutory defuinition... Twitter as we all know is widely used by individuals and organisations  to disseminate and receive information,,  it is inconceivable that grossly offensive, indecent, obscene or menacing messages sent in this way would not be potentially unlawful" (para 23, [2012] EWHC 2157). Pangloss, I'm afraid, has to diagree.  If certain mesages shouldn't be broadcast to the public at at large because they are beyond what is allowed by Handyside then they  should be specifically provided for - by acts like the Race Relations Acts and the PAHA .  There should not be a general ticket to restrict speech online which would be lawful offline.

This, in my view, is the nub of what has gone wrong with s 127 lately.  Statute law designed:

 (a) primarily to regulate one-to-one communications, rather than one to many (whatever LJ Bingham said, it is clear almost all the wording of s 127 comes directly from statutes mainly intending to deal with malicious one-to-one phone calls or letters)  and
 (b) designed to safeguard a public utility built with public money

  is now being applied to a privately owned, publicly accessed, many-to-many  domain where, everyone agrees, the normal laws of the land relating to freedom of speech should apply - except that's just not how s 127 is written;  and interpreting it to come out that way, for both prosecutors, defense lawyers, and ordinary folk, is a bloody  and increasingly hard task.

There is an obvious way forward. Abolish s 127 with all its ambiguities and loose wording and extend the Malicious Communications Act to apply to the whole of the UK. That deals with one to one abusive electronic communication. Then stop, and have a decent debate about how to alter norms of behaviour on social media to reflect a civilised world - a debate which Pangloss suspects, will have almost nothing to do with law.

Wednesday, August 22, 2012

Tuesday, July 03, 2012

7th Gikii 2012 - call for papers!!

Call for Papers: 7th Gikii Workshop, 17-18 September 2012
UEA London
102 Middlesex Street
London E1 7EZ UK

It’s harder than it used to be to write a Call for Papers for GikII, the so-cool-it-hurts blue skies workshop for papers exploring the interstices between law, technology and popular culture. Back in the day,  you could dazzle the noobs just by mentioning past glories like the first paper on Facebook and privacy, Harry Potter and the Surveillance of Doom, regulation of autonomous agents according to the Roman law of slavery, edible technologies and copyright in Dalek knitting patterns. But nowadays we live in a world where we routinely encounter unmanned surveillance drones used to deliver tacos or made out of cats ,  commercial asteroid mining with Richard Branson, 3d printers used to create human organs and the fact that Jeremy Hunt still has a job. 

Still, if any of these or the other many phenomena of the digital age in desperate need of legal attention are digging a tunnel out of your brain, then send us an abstract for the 7th Gikii workshop!  Maybe this year it will be your paper which contributes the seminal GikII meme following in the honoured footsteps of LOLcats, flying penises, and knitted Daleks.
Gikii has run since 2006 in venues such as Edinburgh, Oxford, London, Amsterdam and Gothenberg with attendees coming from Europe, the US, Canada, Australia, Japan, India and Latin America. There is no conference fee, but attendees may be asked to contribute to the conference dinner on 17th September. If desired, we can suggest London accommodation ranging from cheap to more expensive.  This year’s Gikii is run with the kind assistance of the Law School, University of East Anglia at their London centre, and will commence at lunchtime Sep 17th running through to end September 18th.  These dates also offer an opportunity to combine GikII with the 7th SCL Policy Forum (details at ) in what has been termed the “week of geek”.

Abstracts of no longer than 500 words should be sent to and "Karen Mc Cullagh (LAW)"  by August 13th 2012. Acceptances will be announced shortly thereafter. A limited number of places will be available for participants not giving papers, and preference will be given for these to scholars (including postgraduate students) who have not previously attended GikII. Registration for these places will open at when acceptance of abstracts is notified.


Wednesday, February 15, 2012

The Strange Case of SOCA and Conspiracy to Defraud

Pangloss is intrigued and slightly amazed to discover that a well known download site called "Rnbxclusive" was taken down yesterday by authority of SOCA, the UK's Serious and Organised Crime Agency and its front page replaced with this:

 On being questioned by various, including the highly handy David Meyer of ZDNet, SOCA have confirmed (a) that this message is genuine  and did come from them (b) that the site has been "taken down" under the common law offence of conspiracy to defraud.

The web is awash with complaints that this is the UK's version of SOPA and that  the domain name was taken down extra territorially (registered to GoDaddy, in the US, not within SOCA jurisdiction) and without due process. This may well be true.But this rather unexpected approach to the war on file sharing raises for me a number of other, perhaps even more awkward questions.

First and foremost, where was the fraud? Copyright infringement, even criminal copyright infringement , is simply not the same thing as fraud (just as rape is not the same as murder - not all crimes imply each other :-)  Fraud at common law requires in general  intent to deceive and the making of false representations to the public.  (It is explicit that conspiracy to defraud was used so we are not referring here to the Fraud Act 2006) .Was Rnbxclusive saying or implying its downloads were legal? That would be fraud.  But in that case, the downloaders would be the victims - the deceived - and certainly not part of the conspiracy. So it is hard to square this version of events with the claim that visitors to the site might be liable to ten years in jail. Nor to explain the capture of their personal data (their IP address etc) without consent . Such processing of personal data can be legitimised without consent if the intent is to detect and prosecute crime - one of the major DP exceptions - but is that a legitimate and proportional response when the data captured is that of the victims? In any case the wording of the notice hardly  makes it sound as if visitors to the site were being regarded as victims rather than perpetrators of crimes.

One of the problems about these fraud theories is we cannot tell, as the site and the evidence has been removed. Here we see some of the advantages of transparency and due process in producing public credibility. Without evidence, it is hard not to think that a charge of conspiracy to defraud was used to  give access to higher penalties and perhaps more importantly to legitimise the involvement of SOCA at all.

SOCA's remit on its website is to deal with "serious organised crime that affects the UK and our citizens. This includes Class A drugs, people smuggling and human trafficking, major gun crime, fraud, computer crime and money laundering." Delve further down and SOCA does have a remit to deal with "intellectual property crime".   But even a quick skim of this page produces the impression (which Pangloss already anecdotally had) that SOCA's job is to deal with physical counterfeiting - knock off Guccis et al - and with their equivalent version in digital land - knock off games and software. SOCA's role historically has not been to be involved in small scale domestic filesharing. If they are moving into this, there should surely be some kind of public debate or even notice about financial priorities and  overlap with the myriad other bodies, both private and public, involved in the "war on piracy".

Which brings me to my final point which is why are we spending public resources on this when the issue is one where the music industry has just been given the route to police its own patch effectively? Newzbin, much written of in this parish, now clearly gives rightsholders the right to seek blocking orders , in court, with full publicity and due process. Surely SOCA should have rung the BPI (or whoever) and said "look, here's some lovely evidence for you?"  There are some serious questions to be asked here about public/private overlap (or complicity), resource allocation and due process and publicity.

ps ah - useful and to some extent reassuring info here from Glyn Moody  , which seems to say this action was based not on common or garden filesharing but on the owners of the site having obtained pre release music tracks by fraud (possibly actual hacking ?) , which is the (alleged one should say) offense for which one person has been arrested. That does make more sense and would fall within SOCA's remit much more firmly.

pps This still leaves the question though of whether visitors to the site who download items without knowledge of how the site had obtained them (it seems now, (some ), by fraud/possible hacking) could be treated as conspirators in the fraud charge. I an not an English criminal lawyer but I somewhat doubt it. The police quote here uses the word "knowingly" which is what you would normally expect for mens rea. If it is to be presumed anyone who downloads from any site on the Internet  should be aware of the possibility of fraudulent obtaining of that item, without checking out the rights of the site to license the item - an almost impossible task for the average punter -   then we really have made infringing copyright by private` downloading a crime punishable by 10 years in jail.  Not what SOCA intended I suspect..

Tuesday, January 24, 2012