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..

Newzbin 2: Landmark or Laughing Stock?

In answer to my own not so jocular question in the title, the answer is, I truely don't know..

So the long awaited decision in Newzbin 2 aka Twentieth Century Fox et al v BT [2011] EWHC 1981 (Ch) is out. Pangloss has not had time to read the details yet of this lengthy judgment (she is longing to, but has been doing boring stuff designing relaunched websites all day) but to some extent the big question is what the practical impact of the decision will be now, more than the implications for future legal interpretations.

Newsbin was (or is) a website which described itself as a "Usenet search site": while not a clasic P2P torrent site, or indeed a host of infringing content, it enabled extremely easy access to infringing copies of major movies. In the first Newzbin case, [2010] EWHC 608 (Ch), in March 2010, Kitchin J found that Newzbin knew the vast majority of the files so indexed were commercial products protected by, and infringing, copyright. As a result he held that Newzbin infringed the copyright of the complaining rightsholder film studios plaintiffs. It had not only authorised and procured infringement under the CDPA , which was perhaps the most likely counts of infringement, but it was also held to be a primary infringer in that it had communicated the the copyright works to the public without permission.

Newzbin 1 was a big win for rightsholders - or should have been. In fact of course what happened was the site moved offshore (apparently) , kept the same URL and fanbase (and subscription revenue stream) but went effectively outwith the jurisdiction.

Undaunted, the plaintiffs took approach 2: asking BT, the largest UK ISP and telco, to block access to Newzbin to its subscribers wherever it was physically located. The means of so doing was s 97A of the CDPA which existed long before the Digital Economy Act but whose scope has been in doubt.

Although the plaintiffs made it clear that if successful they would move on to suing other ISPs similarly, BT had the big advantage as a first test case in that it is the owner of what is commonly (and wrongly - cue annoyed email from Clive Feather) known as Cleanfeed. This is the blocking technology which is used by ISPs alerted by the Internet Watch Foundation to voluntarily block images of child sexual abuse . Cleanfeed is a reasonably effective form of blocking for child pornography because it can focus on one file or even one image: it does not block entire domains or entire keywords, as some blocking tools do, which might include substantial innocent material.

To cut to the chase, after much legal discussion of HRA, the E-Commerce Directive (I salivate as I write) , Promusicae, and the Digital Economy Act (be still my beating heart) and even in a deft flourish the new L'Oreal vs eBay ECJ case , Mr Justice Arnold agreed to make an order to block. The draft order sought is drafted in the following terms:

1. "1. The Respondent shall adopt the following technology directed to the website known as Newzbin or Newzbin2 currently accessible at www.newzbin.com and its domains and sub domains. The technology to be adopted is:

(i) IP address blocking in respect of each and every IP address from which the said website operates or is available and which is notified in writing to the Respondent by the Applicants or their agents.

(ii) DPI based blocking utilising at least summary analysis in respect of each and every URL available at the said website and its domains and sub domains and which is notified in writing to the Respondent by the Applicants or their agents.

2.. For the avoidance of doubt paragraph 1(i) and (ii) is complied with if the Respondent uses the system known as Cleanfeed and does not require the Respondent to adopt DPI based blocking utilising detailed analysis.

3. Liberty to the parties to apply on notice in the event of any material change of circumstances (including, for the avoidance of doubt, in respect of the costs, consequences for the parties, and effectiveness of the implementation of the above measures as time progresses)." *

There are a number of points to be made here. First, this was an extremely clever test case to pick to establish the legality of blocking orders via s 97A. It is a bit like shooting fish in a barrel : first, a prior UK court had established Newzbin was overwhelmingly devoted to infringing and enabling infringement of copyright, and for obvious commercial gain (it was a premium subscription site.) Compare if an order to block a torrent P2P site had been sought: where content accessed may be infringing, or may be public domain, and where "knowledge" is much harder to pin down; and where revenue streams and thus again, illicuit intent may not be so obvious. Similar problems would arise with a host site like YouTube where there is at least as much UGC as infringing pirate content. Note also that Newzbin had already been found not just to be authorising infringement but actually primary infringers themselves.

Then, secondly, add in the fact that BT already had a tried and tested and relatively non-overblocking tool like Cleanfeed on their hands - and the outcome was something of a foregone conclusion. The judgment also notes carefully that this is not another SABAM (para 177) - where the ECJ (or at least so far , the AG) seems to have balked at the width and unimplementability of what was asked and refused to make a blocking order to stop access by ISP customers to P2P traffic. The order sought here is quite focused and, specifically, does not require what is conventionally thought of as DPI - monitoring and analysis of all subscriber traffic.

But, two important questions. First, is this, it as is often the way, a Pyrrhic victory for the plaintiffs? ie will it work? Second, what is the fallout of this decision? in other words, what are the bad consequences that may flow from what many - not even all working for the content industry - may regard as an obvious and sensible decision given the particular facts of the case?

On the first point, Twitter is full of the usual technorati shaking their heads in amazement at the gullibility of the English courts, thinking they can control the Internet in their quant Canute like ways. It is absolutely clear that this blocking cannot be effective against any moderately technically competent Internet user. Richard Clayton, a reliably sensible source, opines that

BT users will still of course be able to access Newzbin (though perhaps not by using https), but depending on the exact mechanisms which BT roll out it may be a little less convenient. The simplest method (but not the cheapest) will be to purchase a VPN service — which will tunnel traffic via a remote site (and access from there won’t be blocked). Doubtless some enterprising vendors will be looking to bundle a VPN with a Newzbin subscription and an account on a Usenet server.

The court was not, actually, unaware of this, in abstract if not in detail. Mr J Arnold explicitly accepted Malcolm Hutty's (also reliably sensible) evidence for BT that "the level of technical expertise required to circumvent" this kind of blocking was little more than was needed to use Newzbin and Usenet in the first place (para 193).

However he then still made the order. Why? Well, first it would require users to make some extra effort (however little) and some wouldn't (para 194). Second, users were having to pay to use Newzbin and probably needed a paid Usenet sub service too, and if they were going to have to fiddle around with VPNs as well, they might just give up and use legal services instead (para 196)

It is this final conclusion that is the one that makes me incredulous about this decision. Even leaving aside the Internet contrarianism factor (blocking a site is the surest way to make everyone go find it and use it) would an easier step for the hardened infringer not be to revert to free methods of obtaining the same content? Enough of them exist for me not to need to list them I am sure, nor are all illegal. It is already trite knowledge that more young people are streaming content than downloading it - as easy, less risk. In other words the conclusion of efficacy of blocking seems to have been based on effective diversion to other, mainly illicit, channels. In which case one wonders if the game is really worth the candle given the downsides of blocking - which takes us to point 2.

Here it is first worth noting that the court explicitly acknowledge that efficacy is not actually what they are about. In para 98, the final word is

Finally I agree with counsel for Studios that the order would be justified even if it only prevented access to Newzbin2 to a minority of users." [itals added]

Such a declaration of symbolic justice at all costs must surely be accompanied by some comprehension of the balance of gains and losses. It helps to ask how often will court blocking orders be made post Newzbin 2? Paradoxically , after two years of test case jousting, not many. The clue here is in para 189 where Arnold J warns helpfully that

Furthermore, although I cannot prejudge later arguments in this case, it is not inevitable that future applicants will recover all their costs even if successful: compare the practice in respect of Norwich Pharmacal orders, as to which see Totalise plc v Motley Fool Ltd [2001] EWCA Civ 1897, [2002] 1 WLR 1233. For these reasons, even if the present application is successful, I think it is clear that rightholders will not undertake future applications lightly." [itals added]

In other words, most applicants would get their costs back; just no guarantee of it. Under the English system of winner takes all, that means ISPs which opposed s 97A orders would fear to end up on the losing side with all the costs of both sides - a crippling financial burden to take on for love of freedom of speech or even just the good PR. Most would not. (Francis Davey has been making this point ever since s 18 of the DEA was conceived.) In Totalise itself, the courts agreed (eventually) that an ISP which insisted on a court order before agreeing to identify one of its subscribers in breach of its own privacy policy, did not necessarily have to pay all the costs of the plaintiff as well as its own as long as it was , basically, behaving reasonably. But this is an exception to the norm of English costs allocation, in a rather odd kind of court order, and there is no guarantee such a rule will be evolved in s 97A proceedings. ADDED: The two cases are rather different: ISPs are essentially bound by their own promises of confidenrtiality to their customers not to disclose their identitywithout court mandate; but no such restraint, one would think, pertains in relation to a website (like Newzbin) which has no contractual relationship with that ISP. Francis Davey, in correspondence, however adds that he expects an ISP might always feel it has to defend to get right the precise wording of the order - since all ISPs will have different technical capacities. On the other hand, it will take a while, absent legislation,before any ISP would know its potential costs liability - which might point towards not seeking to defend a court application, or even more likely, agreeing a voluntary protocol with no court involvement at all. This has the side benefit that no court order (even an undefended one) means no posibility of contempt of court for not meeting its requirements.

Assuming it is likely that the winner takes all costs rules persists, even while things shake dow, then, what the courts will have put in place then is what Ed Vaizey already said he wants: a system of extralegal "voluntary" blocking by ISPs of content which is alleged to be substantially copyright infringing, without all that boring and expensive checking of evidence. This will not be court based transparent justice; it will be private censorship by those industries with the most to gain from this, and without consideration of the public domain or the public interest, or the interests of those introducing new innovative products whose interaction with classic IP will be untested. Fun times.

But we need to do something to help the content industries; we've been told often enough. Are there alternatives to blocking that will on the one hand be circumvented by those who know, and on the other hand, create a structure for uncontrolled private censorship? Well, the usual litany - the same answer I give when people ask if there is an alternative to graduated response for maintaining the creative sector. Real, convenient, comprehensive legal alternatives that sell content and match the ease and the flexibility of the illicit model: legal P2P, levies, innovative bundles solutions. Everything Ian Hargreaves asked for in fact. But we've been here before. It's so much easier to stick yet another patch on a sinking ship than build a new one.

Finally and optimistically, it is worth pointing out that the website blocking provisions of the Digital Economy Act were introduced because the rightsholders claimed they were uncertain as to the workability of s 97A to defend their interests. Now we have a s 97A precedent in their favour, there should be no reason either to implement s 17, nor to go ahead with Vaizey's half-privatised alternative.

Secondly, if we are to have UK web censorship should we not have even-handed censorship? It is passingly strange that we now have an effective court ordered means to block sites which help infringe copyright, but nothing equivalent to block sites which host hate speech or jihad speech, or which host malware sites or phishing sites, or where libellous comments are posted. Even the IWF scheme to block child pornograophy is voluntary not court mandated. Shouldn't we be having a debate about even-handed censorship? What makes copyright so special here? Or would that remind us that we never had that debate about copyright to start with?

* EDIT: Further discussion seems to reveal the parties will be back in court in October to agree the final version of the order. This may not be the same as the draft above. Until then no blocking will be put in place. Further also to this BBC news story there appears to be a misapprehension: the court order will only apply to BT not the other ISPs - the fact they decided not to intervene is irrelevant. Also a High Ct decision will not act as binding precedent to other High Court applications. However unless other ISPs have substantially different arguments than BT (eg more technological or legal difficulties in blocking) they might choose not to defend court orders aimed at them, or to defend (as suggested above) only to argue the precise wording of the blocking order. However a court order is NOT the same as passing statute like the DEA; it is effective against the parties only not the world.

*EDIT added 3.08.11 : and today as Pangloss predicted, implementing web blocking via the DEA ss 17/18 is quietly dropped as, so we hear, "unworkable". One wonders how they knew the result of Newzbin 2 before it came out? :)

EDIT 3: added 29.07.13 - note that Sky apparently gave in shortly after this and agreed to block Newzbin  without opposing the court order received even though there technical filtering capacity is very diferent to BTs - see http://www.zdnet.com/sky-blocks-newzbin2-following-court-order-4010025026/ , also http://www.sroc.eu/2011/12/sky-blocks-newzbin-important-legal-and.html where James Firth notes : "Newzbin will — and there's strong evidence they have done already, several times — change their IP address," Firth wrote. "It is well known that IP addresses have all but run out. Nearly all IP addresses allocated are recycled — they've been in use before. Pity the website owner who picks up Newzbin's old IP address."

Veni Vidi Wikileaks

Since every other blogger in the universe has discussed how the US is going to stop Wikileaks, perhaps it's time for Pangloss to enter the fray, with the not terribly unexpected news that Amazon (in its cloud hosting services capacity) have indeed decided to stop acting as new temporary host to Wikileaks which moved there following the devastating DDOS attacks on its own server (thanks to Simon Bradshaw for pointing me at this news).

This is interesting in all kinds of ways.

First, the initial move to Amazon was a clever one. In the old days, a concerted and continuing DDOS attack on a small site might have seen them off - nowadays there are plenty of commercial reasonably priced or free cloud hosts. So cloud computing can be seen as a bulwark for freedom of speech - vive les nuages!

Second, though of course, what strokes your back can also bite it, and here we have Amazon suddenly coming over shy. This appears to be entirely the sensible legal thing for them to do and anyone accusing them of bad behaviour should be accused right back of utter naivete. Amazon are now on notice from the government of hosting material which breached US national security and so would according to the US Espionage Act as quoted in the Guardian piece, fairly clearly have been at risk of guilt as a person who "knowingly receives and transmits protected national security information" if they had not taken down. (Though see a contrary view here.)

While Assange as an Australian not a US citizen, and a journalist (of sorts) might have had defences against the charges quoted also ( as canvassed in the Grauniad piece) Amazon, interestingly, would, it seems, not. They are American and by definition for other useful purposes (eg CDA s 230 (c) - see below and ye ancient Prodigy case) , not the sort of publisher who gets First Amendment protections. And Amazon has its CEO and its major assets in the US, also unlike Assange. I think that makes take down for Amazon a no-brainer. (And also interestingly, CDA s 230(c) which normally gives hosts complete immunity in matters of liability which might affect press freedom (such as defamation by parties hosted) does not apply to federal criminal liability.)

But as Simon B also pointed out, there are lots of other cloud suppliers , lots in Europe even. What if Wikileaks packs and moves again? Would any non US`host be committing a crime? That would depend on the local laws: but certainly it would be hard to see if the US Espionage Act could apply, or at any rate what effective sanctions could be taken against them if a US court ruled a foreign host service was guilty of a US crime.

Which leaves anyone wanting to stop access to Wikileaks, as Technollama already canvassed, the options of, basically, blocking and (illegal)DDOS (seperating the existence of the Wikileaks site from any action against Assange as an individual). Let's concentrate, as lawyers, on the former.

Could or would the UK block Wikileaks if the US`asked?

Well there is an infrastructure in place for exactly such. It is the IWF blacklist of URLs which almost all UK ISPs are instructed to block, without need for court order or warrant - and which is encrypted as it goes out, so no one in public (or in Parliament?) would need to know. This is one of the reasons I get so worked up about the current IWF when people are asking me if I won't think of the children.

There is also the possibility, as we saw just last week, of pressure being exerted not on ISPs but on the people who run domain name servers and the registrars that keep domain names valid. Andres G suggests that the US might exert pressure on ICANN to take down wikileaks.org for example. Wikileaks doesn't need a UK domain name to make itself known to the world, but interestingly only last week we also saw a suggestion from SOCA (not very well reported) that they should have powers effectively to force Nominet, the UK registry, to close down UK domain names being used for criminal purposes. Note though if you follow the link that that power could only be used if the doman was breaking a UK criminal law.

But there is a really simply non controversial way to allow UK courts the power to block Wikileaks. Or there may be soon.

Section 18 of the Digital Economy Act 2010 - remember that? - allows for regulations to be made for "the granting by a court of a blocking injunction in respect of a location on the internet which the court is satisfied has been, is being or is likely to be used for or in connection with an activity that infringes copyright."

Section 18, at present, needs a review and regulations to be made before it can come into force. This may in the new political climate perhaps never happen - who knows. But what if that had been seen to?

Wikileaks documents are almost all copyright of someone , like the US government, and are being used ie copied (bien sur) without permission. Hence almost certainly, a s18 fully realised could be used to block the Wikileaks site.Of course there is some possibility from the case of Ashcroft v Telegraph Group [2001] EWCA Civ 1142`that a public interest/freedom of expression defense to copyright infringement might be plead - but this is far less developed than it is in libel and even there it is not something people much want to rely on.

So there you go : copyright, the answer to everything, even Julian Assange :-)

Oh and PS - oddly enough the US legislature is currently considering a bill, COICA, which would also allow them to block the domain name of sites accused of encouraging copyright infringement. Handy, eh? (Though on this one point, the UK DEA s 18 is even less restrictive than COICA, which requires the site to be blocked to be "offering goods and services" in violation of copyright law - which is not even to a lawyer a description that sounds very much like Wikileaks.)

EDIT: Commenters have pointed out that official government documents in the US, unlike in the UK do not attract copyright. Howver the principle stands firm: embarrassing UK docs leaked by Wikileaks certainly would be prone to attack on copyright grounds, including DEA s 18, and it is quite possible some of the current Wikileaks documents could quote extensively from material copyright to individuals (and Wikileaks prior to the current batch of cables almost certainly contain copyright material).

Interestingly Amazon did in fact, subsequent to this piece, claim they removed Wikileaks from their service, not because of US pressure, but on grounds of breach of terms of service : see the Guardian 3 December 2010

"for example, our terms of service state that 'you represent and warrant that you own or otherwise control all of the rights to the content… that use of the content you supply does not violate this policy and will not cause injury to any person or entity.' It's clear that WikiLeaks doesn't own or otherwise control all the rights to this classified content. Further, it is not credible that the extraordinary volume of 250,000 classified documents that WikiLeaks is publishing could have been carefully redacted in such a way as to ensure that they weren't putting innocent people in jeopardy. Human rights organisations have in fact written to WikiLeaks asking them to exercise caution and not release the names or identities of human rights defenders who might be persecuted by their governments."

The copyright defense is alive and well :-)

We are not amused? Jokes, twitter and copyright

Q. Why did the comedian Tweeter cross the road?..

A. .. to steal someone else's joke posted on Twitter??

The Grauniad reports today on the latest spat in the turf war that is developing on Twitter between comedians trying out jokes and material, and passing other parties quietly re using thus material, sometimes explicitly under their own name.

It seems that Keith Chegwin, now no longer for some while the fresh faced lad of Saturday morning TV, has hit rock bottom and resorted to passing off jokes gathered on Twitter as his own "old" material.

Chegwin decided to use his account, where he has more than 36,000 followers (no, me neither), to broadcast a whole load of gags and one-liners. He claimed that these were either his own work, or traditional gags minted by long-dead comics.

Unfortunately, they weren't. Among the gags retold by the one-time player of pop were identifiable jokes written by a number of contemporary standup stars, including Milton Jones, Lee Mack and Jimmy Carr. And what Cheggers presumably envisaged as a warm-hearted bit of fun has stirred up a sizeable amount of bad feeling within the comedy community. One comedian, Ed Byrne, even took Chegwin to task on Twitter, telling him he was wrong not to credit "working comics" for the jokes he was using.

This is not the first occasion of such, er, lack of amusement, emerging. My esteemed colleague @loveandgarbage tells me that this is a common source of disquiet. Comedians like to test and work on their material and Twitter with its potential for response and re-tweeting is a prfect venue for this. But the real question is, does anyone own a joke? Should they? Isn't this common cultural property? Where would society be if the first person to invent a "knock knock " job had asserted copyright in it?

Jokes - and especially tweeted jokes - are often quite short, vaguely familiar variations on a theme, and don't look much like the public conception of a "literary work", which is the applicable category of copyright (for written down jokes anyway). But the law as usual is not as simple as ordinary common sense.

Copyright exists only in works which are "original literary works". But case law has set a very low bar on such protection. A "literary" work has been held to include a long list of extremely unexciting written-down "things", eg, exam papers, football coupon forms, and a large number of meaningless five letter words used as codes. Looking at rather short literary works, it is generally acknowledged, eg, that some particularly pithy headlines might well engage copyright, though slogans are more contested, and usually protected by trade mark. There is the famous Exxon case, Exxon Corp. v. Exxon Insurance Consultants International Ltd [1982] Ch. 119, in which the English court held one word was too short to be a literary work. But 140 characters is somewhat longer and there is an interesting quote in the Exxon case from University of London Press Ltd. v University Tutorial Press Ltd. [1916] 2 Ch. 601 in which Peterson J. said, at pp. 609-610:

The objections with which I have dealt do not appear to me to have any substance, and, after all, there remains the rough practical test that what is worth copying is prima facie worth protecting.

Copying jokes certainly seems to be a worthwhile economic activity. But are jokes "original"? There is surely an argument that, like recipes, every joke that exists has already been invented in some fundamental form - and therefore can be freely copied and adapted. Yet jobbing comedians do put a great deal of work into, and base their income on, inventing "new" jokes - and as the Grauniad note, the culture has shifted since the 80s to a point where comedians now regularly claim to "own" their jokes (I've also just been referred to this fascinating piece):

The idea that a comedian had outright ownership of his material seems to have taken root in this country once Manning et al gave way to the Ben Elton generation. For the original alternative comedians, simple gag-telling was far less important than presenting a fully-formed original perspective on the world. And if you were trying to offer an audience something distinctive (with all the added hard work that involves) then it became crucial to ensure that your gags were wholly your own....In recent years, the main victims of plagiarism in standup have been those comics who rely heavily on one-liners and quickfire jokes. For gag thieves, these present the perfect opportunistic crime: they're easy to lift and contain fewer hallmarks of the originator's personality.

So maybe there is copyright in the jokes in question, and poor Cheggers is a copyright pirate. (Appealing to Technollama here to insert a Photoshop mock up pic!) But there is a serious point here, of which the Twitter joke is (paradoxically) a good example.

Is there copyright generally in any tweet? If so, what happens to re-tweeting? Passing around tweets by re-tweeting them is, for most tweeters, welcome : both providing an ego boost and allowing the community to share useful and amusing information at lightning speed. Yet if copyright exists in tweets, such activity is prima facie copyright infringing.

Again, there is a strong argument that by writing in an unprotected, open to the public, Twitter account, you are granting an implied license to copy. (Twitter itself seems to recognise this by providing no re-tweet button where the tweet is a friends-only one.) However the "implied license" argument has been frequently repelled on the Net generally: it is now very well accepted that simply posting something on a website, like a photo, or a story, does not in any way grant permission to all and large to reproduce it (cf a thousand spats over fans downloading pictures of their heroes from official media websites). Why should Twitter be any different? As usual, this would very much be on a case by case basis and depend on intentions, if litigation was ever to occur.

So we are left in a dilemma. If comedians are to get protection, we may prejudice perhaps the fundamental mechanism by which Twitter adds value to its community: the re-tweet.

But that's not the only problem. Presumptively granting copyright to tweets would allow particular tweets to be easily suppressed from distribution on threat of legal action, something that migt have serious chilling effects on freedom of speech.

Most recently, eg, take the Ben Goldacre/ Gillian McKeith spat, over whether Ms McKeith had called Mr Goldacre a liar on Twitter. Conveniently for the Goldacre side, someone had taken a screen cap of the incriminating tweets by McKeith, before she sensibly and fairly quickly deleted them. I wondered at the time if these tweets were not her copyright, and thus illicitly copied and distributed - as clearly she had not given permision, or if she had, had withdrawn it by deleting the tweets on her own account. And copyright can be so much easier a way to suppress speech than libel since it does not involve any enquiry over whether what was said was a lie or detrimental to anyone's reputation.

Of course, again (as with yesterday's FOI post) in copyright, there are exceptions for news reporting and public interest elements. But these are untested for social media and particularly for amateur tweeters rather than professional journalists. (It is interesting in the two pieces linked to above, that the Guardian themselves link directly to the screen-capped tweets, but Goldacre, a clever careful man, does not. :) Most lay people receiving a cease and desist on copyright grounds would probably delete a re-published tweet without demur. This could be the next way to suppress speech on a vigorous liberal forum like Twitter for everyone from Ms McKeith to the Church of Scientology.

Turning into a bit of a bad joke, eh? :-)

When does information not want to be free?

Apparently, when it's been released under a freedom of information (FOI) request!

This is not, I imagine, the answer you, gentle reader, expected:)

Pangloss was recently asked by an acquantance, X, if he ran any legal risk by publishing on a website some emails he had obtained from the local council, as part of a local campaign against certain alleged illicit acts by that council. According to X, the emails could destroy the reputation of certain local councillors involved, and that they had had great difficulty extracting the emails, but finally succeeded. Obviously the value to the public in terms of access to the facts - surely the whole point of FOI legislation - would be massively enhanced if the obtained emails could be put on the campaign website.

My advice was that I was no FOI expert but since data cannot be released under FOI when it reates to a living person, DP and breach of confidence were not likely to be problems (though the latter was not impossible), and the main danger was surely libel, in which case truth was a complete defence. There would of course be a risk that councillor A might be lying about councillor B to the detriment of their reputation; in which case there was a danger of re publishing a libel. But that didn't seem all that germane and a public interest defence (though not one Pangloss would like to depend on, if it was her money) would certainly be possible.

I was wrong. Asking more people (and many thanks here to the wonderful ORG-legal list, especially Technollama, Victoria McEvedy, Simon Bradshaw, Daithi MacSithigh and Andrew Katz)) revealed the main weapon for gagging publication of FOI requests: that useful, all purpose, font of legal restraint - copyright.

In my innocence, I would have expected that a document obtained under FOI could be automatically republished by the recipient. Not so. The Office of Public Sector Information (OPSI)'s website reminds us that :

Information listed in Publication Schemes, which can be disclosed under FOI, will be subject to copyright protection. The supply of documents under FOI does not give the person who receives the information an automatic right to re-use the documents without obtaining the consent of the copyright holder. Permission to re-use copyright information is generally granted in the form of a licence.[italics added]

As with most legal issues, the devil is in the detail here. Why should permission to republish only be "generally granted"? Why is it not compulsory to grant a license (though not necessarily for no consideration)? In the example at hand, the copyright holders have fought to prevent disclosure and have every reason to refuse to grant copyright permission. This seems both immoral and against the whole point of FOI.

Technollama advises me that where information is Crown copyright, there are indeed generally obligations under the Public Sector Information Directive (PSID) to release that information under some open licensing scheme. Currently this is Click-Use, but will soon be Creative Commons. An "open licensing" scheme does not necessarily mean you get to publish for free either, but it should mean copyright could not be used to gag publication. This all sounds good and right. The general reasoning behind the PSID obligations is that public money pays for public data, so the public should be able to access it and re-use it to create both economic and creative public benefits .

A similar reasoning lies behind the recent acclaimed open data.gov initiatives involving Tim Berners-Lee and Nigel Shadbolt's Web Science team. Various campaigns such as the Guardian's Free our Data calls have influenced UK public opinion to the point where the UK government seems to have acknowledged that public data should be able to be - well - published - and then re-used for public benefit.

However Crown copyright only applies in general to works generated by central not local government. And in any case it is more than possible that emails of this kind might be the copyright of the individual senders themselves, not the council, especially given the lack of a contract of employment.

(There are plenty of public bodies subject to FOI whose works are not Crown copyright, including eg the BBC and the ICO - see a selected OPSI list here - so this is going to be a common problem.) Of course it is possible the emails might not qualify for copyright at all - but given the low level of orginality test etc usually applied nowadays, this is pretty unlikely.

So here is a case where the law has already agreed that there is a public benefit in being able to scrutinise the activities of public officials (in this case, local councillors) yet there is no obligation to allow re-publication, merely a suggestion. In this case, the incentive to allow public republication is ethical and moral, not economic. Should that make any difference? I don't think so: perhaps the reverse.

Copyright of course has exceptions. Even if the council or councillors in question refused to license republication, it might be claimed that well known defences like news reporting or public interest might apply to allow copyright to be trumped. The OPSI site acknowledges this (see para 2). But we all know that the chilling effect of the threat of expensive litigation is likely to be an effective muzzle for most members of the lay public, if only vague and untested defences lie between them and big legal debts.

Would it not be far, far more sensible simply to require that where copyright materials are released under FOI (perhaps after a decent interval if necessary to allow for appeals) then a licesne to republish MUST be granted? Reasonable commercial conditions could apply depending on the value of licensing the information; which would be zero for scurrilous emails, but would stop people using FOI as a back door to getting free copies of expensive information. (Though as noted, the trend is for free release of public data anyway.)

The UK is not the only country to allow this under its FOI law In Canada, in 2008, Michael Geist discovered that the Vancouver BC government were asserting copyright over released by FOI materials. He wrote:

The notion that the media may not inform readers of harms to the public interest without first pleading for the state's permission and paying a copyright fee is deeply troubling.

I could not agree more. The current situation is an appalling (and little known) travesty of what FOI is all about. It needs changed.

Hitler reacts to the Hitler parodies being removed from YouTube

Yes I know this is last week's news, but I'm pleasantly surprised to find this hilarious commentary on take down vs fair use is still available (though for how much longer?) (And given all the swearing, can I get away with showing it to the students??)



Of course, You Tube appears to have responded to Hitler's plaint: by providing a "put back, it's fair use honest guv" button. However note this only applies where take down has been automated by You Tube's Content ID system: so it wouldn't apply to the video above.. However, it's a step in the right direction (even if it has, say YT, been available since 2007, only no one noticed! ) so hurrah, say we all (even though I like cat videos too..)

There is of course currently no copyright exemption for parody in the UK (see current Gowers consultation, paras 16ff, indicating no prospect of change on this) - so if a video is streamed/watched in the UK, having been uploaded in the US, taken down via Content ID (or via overt notification), but then put back for fair use in US - quid iuris? or more accurately, what of You Tube and their claim to be exempt from liability under art 14 of the E Commerce Directive? have they received "notice"?? arguably yes, via their automated system or otherwise and yet they are still publishing a copyright infringing item. Can Google UK then block the video even though it remains available on the US site? and can the automation software deal with this? Google has, I'm sure, thought of this. Individual copyrights being inherently territorial, we are in deep waters for Pangloss. Comments welcome!

ZDNet, Wi Fi and the Digital Economy Bill

ZDNet is reporting , rather relevantly to Current Times, that a pub owner running an open wi fi hotspot has been "fined £8,000" for infringing downloads by its customers. The information was provided by the Cloud, who provided the hot spot capability (and who also, incidentally, do the same for McDonalds, my example for wi fi liability of a few days back on this blog.)

"Graham Cove told ZDNet UK on Friday he believes the case to be the first of its kind in the UK. However, he would not identify the pub concerned, because its owner — a pubco that is a client of The Cloud's — had not yet given their permission for the case to be publicised."

ZDNet asked me to comment on the story which I was happy to do, but unfortunately one major error has crept through the phone call process. EDIT - corrected! Thank you! Story also now specifies it was a civil case.

So what about the pub story? It sounds very odd. Basically, we need more details here. First it doesn't sound on first glance like a case where criminal copyright would be applicable. So that probably isn't a "fine", but damages . Even more likely is that the case settled rather than going to final judgment (in which case, wouldn't it be a novel enough decision to have an opinion, and be up on BAILII? I can't see it there). In that case the £8000 is just an estimate of damages both parties were willing to settle for, and, it should be stressed, not a legal precedent.

As for the crucial responsibility angle, one wonders if the issue was mainly one of proof. After all, if a publican was alleged to be regularly downloading without permission, and the defense was that wi fi users were using his IP address ("it wasnae me" as we say in Glasgow), and the wi fi was open, then there was no attributed log of downloads, and thus no proof of this beyond that mere assertion. In strict law, even in a civil case where the standard of proof was the balance of probabilities, the onus of proof should be on the plaintiffs ie the rightsholders. But in a settlement situation, I can conceivably see that the publican might decide to give up and settle without hard proof to back up his case, and cut his losses and the chance of losing the case and paying both side's costs.

The important point is if that if this is a settlement, that doesn't at alll translate into a theory of secondary liability for downloaders suing your open network, still less a legal precedent. If anyone has further details, I'd love to hear them.

I may as well now go on and quote the rest of myself :) (a bit odd I know)

"However, she said the measures that would be brought in under the Digital Economy Bill — measures that could include disconnection of the account holder — would not apply because the business could be classified as a public communications service provider, which would make it exempt. According to the terms of the bill, only "subscribers" can be targeted with sanctions**.

[** note for legally minded Pangloss readers: this is because the DigiEc Bill cl 16defines "subscribers" as excluding "communications providers", which can be traced back via the Communications Act 2003 to include providers of electronic communications services or networks. The pub hotspot would fall into that class, probably :-) ]

According to legal advice sent to The Cloud by the law firm Faegre & Benson on 17 August, "Wi-Fi hotspots in public and enterprise environments providing access to the internet to members of the public, free or paid, are public communications services".

A public communications service provider must, under the terms of the Data Retention Regulations that came into force in the UK in April of this year, retain records for 12 months on communications that have taken place over their network. This data includes user IDs, the times and dates of access, and the online destinations that were being accessed. The content of the communications cannot be retained without the user's permission, due to data-protection laws.

However, there is a get-out clause in the Data Retention Regulations, in that no public communications service provider has to keep such records unless they are notified by the government that they are required to do so.

According to Edwards, this is because "only the big six ISPs have the facilities to comply, and because the government agreed [in its legislation] to repay some of the costs [of retaining [[and accessing - Pangloss adds]] such records]". She noted that this clause might itself be non-compliant with the EU data-retention laws that were transposed into UK law in April.

Edwards pointed out that, even if the sanctions proposed in the Digital Economy Bill come into force, "no-one will know who [the downloader] was, because the IP address that will show up [upon investigation] will be of the hotspot". She added that the rights holder seeking infringers of their copyright would probably not know that the IP address in question was not that of a subscriber.

It would then be up to the hotspot operator to point out that they were not the end user downloading copyrighted material. "But when would they get to say that? Maybe straightaway, maybe not until after disconnection — it's not currently clear," Edwards said."

Google times are here again

Pangloss has found (via Google, how else!?) a rather interesting blog called http://blogoscoped.com/.

It contains a little gem called Google Robot which certainly makes you wonder just how sensible our current legal interpretations of the Google spider are.

"Frequently Asked Questions

Last update: November 1st, 2030

What are Google Robots?

Google Robots are our human-like machines that walk the earth to record information. They do no harm, and they do not invade your privacy.

What are Google Robots good for?

Our Google Life search website is powered by the Google Robot crawler program. On the Google Life website at life.google.com, you can:

• Find out what menus the local restaurant offers at what prices
• See a perfect 3D shape of all houses in your city
• Know how crowded the bar is you want to go to tonight
• Know what items to find at your local mall
• Find out if your library has a certain book available (Also see: What's a book?)
• Know what you said and who you met 3 weeks ago (this feature is available only to My Public Life™ subscribers)
• Locate your friends (this feature is only available if your friends subscribed to My Public Life™)
• And much more!

I saw a Google Robot entering a library and reading books in it. Is that legal?

Our Google Robots do not record private information. As the books in a library are considered to be public, our Google Robots reserve the right to scan them. However, we do respect the copyright of individual works, and will only show a "fair use" portion on our website." "

Another story off this site is that the German Federal Department for Media Harmful to Young Persons has put a pro anorexia blog hosted on Google’s Blogspot on the index of youth-harming media. It is already well known that Google censors its search in countries like Germany and France according to local laws which prohibit spech often legal in other states (such as the USA). The interest for Pangloss is that this follows on from the news that Germany's Communications Minister is pushing for a UK IWF-style Cleanfeed system. (So is Belgium - bad week for free speech huh - oh and Romania. ) If the German scheme transpires, would URLs like this go on to it? That is pushing censorship past child porn, and an exact example of what I'm worrying about in the upcoming pornography chapter from Law and the Internet (3rd edn ) I quoted earlier.

John Ozimek of the Register whose coverage has lately been excellent, says "Undoubtedly, 2009 is going to be the year of the internet filter." Hmm.

And Another Depressing Copyright Post..

Bill Thompson has an excellent summing up ofthe state of play as UK ISPs like Virgin move towards helping the music industry "re-educate" its users and resist the move to 21st century business models.

"We need a space for experimentation, where we can test the limits of old laws and explore how they might be altered in future, but once ISPs decide that they are no longer neutral carriers of bits and choose to ally themselves with the content industry then we lose another sliver of freedom.

At the moment it's hard to use BitTorrent anonymously, although since the service itself is entirely legal and legitimate there should be no need to do so.

The moves by Virgin and other ISPs will simply spur the development of new ways of sharing files, just as the clampdown on Napster lead directly to the development of the current generation of peer to peer networks.

Virgin has just given its thousands of users an incentive to explore these new tools in order to confuse their administrators."

The Stae of Modern Copyright..

Via many people, a quote from William Patry on why he's closing his blog:

"Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty Dumpty,the copyright law we used to know can never be put back together again:multilateral and trade agreements have ensured that, and quite deliberately."

Facebook

Just to document the press's continuing fascination that people are indeed monitoring Facebook, Bebo etc, and that despite this, other people are still stupid enough to leave confidential information there, this piece from the Indy ...

"Just ask the 27 workers at the Automobile Club of Southern California fired for messages about colleagues on their MySpace sites; the Florida sheriff's deputy whose MySpace page revealed his heavy drinking and fascination with female breasts – and swiftly found himself handing in his badge; the Argos worker in Wokingham fired for saying on Facebook that working at the firm was "shit"; the Las Vegas teacher at a Catholic school fired after he declared himself gay on his MySpace page; the staff of an Ottawa grocery chain fired for their "negative comments" on Facebook; the 19 Northampton police officers investigated for Facebook comments; and Kevin Colvin, an intern at Anglo Irish Bank, who told his employers he had a family emergency, but whose Facebook page revealed he had, in reality, been cavorting in drag at a Hallowe'en party."

However the piece does have a new(ish) point, that worries about social network sites may shift from the obvious paedophiles, stalkers and ID thieves t more "civil" observers:

"That something as ubiquitous as social network sites (they have 13.7 million UK users) are exploited by paedophiles and other serious criminals is not surprising. Happily, the numbers affected are small. But the use of personal page content in civil disputes, divorces, employment and legal actions will affect far more of the millions now innocently sharing their thoughts and intimate moments with the online world. "

Pangloss is, as usual, almost finished an article on all this :) Send donations of spare time to allow her to complete it!!

Ps while we're at it, two interesting recent comments on the ongoing facebook/SCrabulous affair - Jonathan Zittrain here and the irrepressible Daithi Mac Sithigh here.

UK Linking Site Closed Down

An interesting if rather sketchy report from The Guardian that UK-based TV Links site has been closed down after a raid by a combination of Trading Standards officials, Gloucester police and FACT (Federation Against Copyright Theft). The question is what were the grounds? The report says merely that

""Sites such as TV Links contribute to and profit from copyright infringement by identifying, posting, organising, and indexing links to infringing content found on the internet that users can then view on demand by visiting these illegal sites," said a spokesman for Fact. "

The case is interesting because TV Links site is an ordinary website giving links to content which constituted (in some cases) infringing copies of copyright works eg Dr Who, Buffy et al. The site is not a host nor is it obviously "inciting" or "inducing" users to infringe as say Kazaa/Grokster did. It could be argued in fact that it does little more than what Google routinely does - makes links available to infringing copies and leaves the user to decide what to do next.

The most obvious ground of copyright infringement would be authorisation of infringement under s 16(2) of the CDPA 88 - but the UK courts have not been entirely keen on expanding the interpretation of this phrase - see CBS v Amstrad ([1988] 2 All ER 484 . The nearest we have in UK case law is the very early discussion of a link made by one newspaper (Shetland News) to another's headline stories (Shetland Times) which were "passed off" as its own - but even that case only reached the stage of interim interdict (Injunction for you Southerners :) and was based on law about cable progranmmes which has since been amended.

Interestingly also, the E Commerce Directive does NOT currently exempt even "innocent" sites from liability for hyperlinking - an issue which was raised but left unchanged in a UK DTI review a year or so back. The issue may be reconsidered during the upcoming revision of the ECD. Of course it might well be claimed that a site like TV LInks had at least constructive if not actual notice that it was linking to infringing material .

Another interesting point is that some of the materials linked to - British BBC TV progs of recent vintage, like Dr Who - are probably freely available under the new BBC iPlayer distribiution scheme. Is there not something inconsistent in terms of policy, if not law, in encouraging viewers to download copies by one legal means, but raid and close down other parties who provide the same material in a more user friendly (ie not DRM-locked) form?

Of course it is possible the raid was conducted under criminal law grounds other than copyright law at all. One suggestion Pangloss has heard is that there may have been money laundering offences attached to organised crime involved. It would be good to hear more details on this case soon. (It has considerable implications for the UK liability of BitTOrrent torrent sites as well.)

EDIT: the Guardian, clearly pleased with their scoop, has already blogged it : http://blogs.guardian.co.uk/technology/2007/10/20/tv_links_shut_down_for_linking_.html

EDIT 2: and the beat goes on.. a lovely example of the Internet routing around "damage" - http://tvteddy.blogspot.com/2007/10/tv-links-replacements.html .

While others take flight driven by the uncertainty of the legal liability for linking - http://uk.techcrunch.com/2007/10/21/testcardtv-taken-down-as-police-swoop-on-tv-links/

IPKat also now has comment. AS does FACT. And Struan Robertson of OUTLAW writing in the Register is as bemused as Pangloss is.
"We don't have a simple offence of facilitating infringement in the UK," he told us. "Though we do have offences concerned with distributing or offering infringing copies or communicating works to the public... to such an extent as to affect prejudicially the owner of the copyright. The maximum penalty is 10 years. However, I've never heard of links being characterised in this way in a British court."

EDIT THE FINAL: And then it turned out that they were actually being sued for trademark infringement!! Good grief.. Full coverage on Lex Ferenda, Technollama et al.

Dawkins v You Tube and the World

More trouble with You Tube and the DMCA.

Let's see if we can get this one straight.

Dawkinsites ("Rational Response Squad") post videos anti-creationism on You Tube.

Creationists get said Videos taken down by claiming NTD - that said vids contained their copyright material.

Dawkinsites plead fair use to no avail.

You Tube pull Dawkinsites YT account for making repeated complaints (says Wired).

Wow, I'm glad I'm not YT's Press agents ..

This is a good example though of why You Tube's much awaited Claim Your Copyright technology will NOT solve all problems relating to copyright and NTD - specificially where fair use, fair comment, freedom of expression etc are involced.

Whither the public domain and critical journalism in a world of fully water marked and automated copyright-material takedown?