GiKII V : The Voyage Home!

Very happy to have some GOOD news to report for once!

GikII V, Edinburgh 2009

http://www.law.ed.ac.uk/ahrc/gikii/2010.asp

GikII V, The Voyage Home
28-29 June 2010
John McIntyre Conference Centre
Edinburgh

Call for Papers

GikII returns to its place of birth for its Fifth Edition. GikII is a workshop concerned with exploring the legal interaction between popular culture, speculative fiction, and new technologies. It has been described unimaginatively as trail-blazing, innovative, fun and informative. We like to think of GikII as the legal workshop equivalent of a Pan-Galactic Gargle Blaster, in other words, it is “like having your brain smashed out by a slice of lemon wrapped round a large gold brick”. GikII is where the bravest, fun-est (not to be confused with funniest) and zaniest ideas about law and technologies are discussed. In some instances we explore technologies so new that in fact there is not even a term to describe them, while some other times we have discussed technologies long gone. We only ask that you are imaginative and think of your fellow travellers instead of yourself. GikII is all about giving legal scholars the opportunity to engage in blue skies thinking (variations of the visible electromagnetic radiation spectrum may occur depending on which planet you may currently inhabit). If you have a paper that is languishing at the bottom of your hard drive and is crying out to see the light of a USB stick, GikII is the place for you. We laugh in the face of tradition and make rude comments about scholarly convention.

Application process

Please send an abstract not exceeding 500 words to Professor Lilian Edwards (Lilian.Edwards@sheffield.ac.uk) or Mr Andres Guadamuz (a.guadamuz@ed.ac.uk). The deadline for submissions is April 15 2010, and please bear in mind that we do not hold with the Adamsian theory of deadlines (“they make a pleasing whooshing sound as they go by”). We will try to have them approved and confirmed as soon as possible so that you can organise travel and accommodation.

Registration

As with previous years, GikII is free of charge, and therefore there are limited spaces available, so please make sure you submit your paper early. Priority is always given to speakers, but there are some limited spaces available for students and non-speakers. Registration will be open shortly.

(By the way, we are perfectly aware that “The Voyage Home” is Star Trek IV, we’re just testing your trekkie knowledge).

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GiKII V : The Voyage Home!

Very happy to have some GOOD news to report for once!

GikII V, Edinburgh 2009

http://www.law.ed.ac.uk/ahrc/gikii/2010.asp

GikII V, The Voyage Home
28-29 June 2010
John McIntyre Conference Centre
Edinburgh

Call for Papers

GikII returns to its place of birth for its Fifth Edition. GikII is a workshop concerned with exploring the legal interaction between popular culture, speculative fiction, and new technologies. It has been described unimaginatively as trail-blazing, innovative, fun and informative. We like to think of GikII as the legal workshop equivalent of a Pan-Galactic Gargle Blaster, in other words, it is “like having your brain smashed out by a slice of lemon wrapped round a large gold brick”. GikII is where the bravest, fun-est (not to be confused with funniest) and zaniest ideas about law and technologies are discussed. In some instances we explore technologies so new that in fact there is not even a term to describe them, while some other times we have discussed technologies long gone. We only ask that you are imaginative and think of your fellow travellers instead of yourself. GikII is all about giving legal scholars the opportunity to engage in blue skies thinking (variations of the visible electromagnetic radiation spectrum may occur depending on which planet you may currently inhabit). If you have a paper that is languishing at the bottom of your hard drive and is crying out to see the light of a USB stick, GikII is the place for you. We laugh in the face of tradition and make rude comments about scholarly convention.

Application process

Please send an abstract not exceeding 500 words to Professor Lilian Edwards (Lilian.Edwards@sheffield.ac.uk) or Mr Andres Guadamuz (a.guadamuz@ed.ac.uk). The deadline for submissions is April 15 2010, and please bear in mind that we do not hold with the Adamsian theory of deadlines (“they make a pleasing whooshing sound as they go by”). We will try to have them approved and confirmed as soon as possible so that you can organise travel and accommodation.

Registration

As with previous years, GikII is free of charge, and therefore there are limited spaces available, so please make sure you submit your paper early. Priority is always given to speakers, but there are some limited spaces available for students and non-speakers. Registration will be open shortly.

(By the way, we are perfectly aware that “The Voyage Home” is Star Trek IV, we’re just testing your trekkie knowledge).

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Yesterday Not Quite in Parliament

Putting some links here today and yesterday as one-stop shop for people interested in the ongoing debate on DEB

Faintly worrying interview with L Clement-Jones of the LibDems re am 120a - is this er really how laws should be made? By trying to read the mind of ministers?

"What is the purpose of Amendment 120a?
A: The purpose is very clear — it's to prevent copyright infringement.

It replaces Clause 17, which the Lib Dems opposed, does it not?
It's a much more specific way of replacing Clause 17. We took objection to the fact that the government would change copyright law by order.

We kept saying: "Show us a situation where you think you're going to need this kind of power." The government, frankly, didn't come back, but we came to the conclusion with the Conservative front bench that this was a matter of doing something now to prevent some of these overseas websites infringing copyright and getting away with it. It's a growing problem.:"

And also apparently from the LibDem camp an interesting piece by Lee Griffin defending am 120a - some points I vigorously disagree with (no bad law should pass on the assumption the courts will be too sensible to enforce it, an idea which seems to permeate this debate)l but also some good sense:

"What 120a doesn’t tackle in any way shape or form is the current problem which is of the copyright owner having to pass a burden of proof before they are able to send threatening legal literature. The same can be said for our libel laws."

I am begining to think this lack of pror obligation on the rightsholders to meet a standard of proof of evidence before sanctions are taken is the key point for all parts of the DEB : whether it's the BPI (say) sending 1 million allegations of filesharing to ISPs to pass on to users as notifications, or the same body asking ISPs to block a site without any need for proof of its "business model" being based on piracy, in the sure knowledge that 99 out of 100 ISPs will not demand a court order where they could get stuck with the costs.

Take another area of law. UK ISPs uniformly refuse to give out subscriber details without a court order (a "Norwich Pharmacal" order) because they believe to do so would breach the data protection act. Would it be so difficult to devise a law which made it illegal for an ISP to be bullied into blocking a site (or "online location") without a court order? Then the safeguards in am 120a would actually have some traction. Of course this opens a whole can of worms about non-court ordained blocking of sites by ISPs for other purposes; notably because they appear to be spammers or distributors of malware, or , controversially, as a result of the extralegal IWF blocklist for sites hosting images of child sexual abuse. But it is still, I think, worth a thought.

More Clarity at T'Bill

Terrific piece explaining very clearly why the LibDem amendment is a bad thing and can be abused to stop press freedom at Francis Davey's blog.

Comment on web lockers and why users have the right to store their own data privately and confidentially, without being presumed to be copyright pirates (among other points) at Boing Boing

The Guardian has picked up the story, with quotes from moi.

(More) Trouble At T'Bill

Remember that stuff about the road to hell being paved with good intentions? Well here's a worked example for modern times...

The Lib Dems, in an apparent good-faith attempt to avoid supporting the Government's proposed unlimited power to change any law on IP, any time, any where, without proper scrutiny, in clause 17 of the Digital Economy Bill, came up with an alternative which almost everyone BUT the LibDems and the Tories thinks is probably even worse. It's a remarkable day indeed in the DEB saltmines when you see the government minister and the fabulous Earl of Errol agreeing on anything. But also a rather disturbing one.

So now it seems that pro tem at least amendment 120a has passed, at least according to live tweeter Glyn Wintle (no Hansard text up yet - but confirmed by ORG), stating:

"Amendment 120a

LORD CLEMENT-JONES

LORD HOWARD OF RISING

Leave out Clause 17 and insert the following new Clause—

"Preventing access to specified online locations for the prevention of online copyright infringement

In Part 1 of the Copyright, Designs and Patents Act 1988, after section 97A insert—

"97B Preventing access to specified online locations for the prevention of online copyright infringement

(1) The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, requiring it to prevent access to online locations specified in the order of the Court for the prevention of online copyright infringement.

(2) In determining whether to grant an injunction under subsection (1), the Court shall have regard to the following matters—

(a) whether a substantial proportion of the content accessible at or via each specified online location infringes copyright,

(b) the extent to which the operator of each specified online location has taken reasonable steps to prevent copyright infringement content being accessed at or via that online location or taken reasonable steps to remove copyright infringing content from that online location (or both),

(c) whether the service provider has itself taken reasonable steps to prevent access to the specified online location,

(d) any issues of national security raised by the Secretary of State.

(e) the extent to which the copyright owner has made reasonable efforts to facilitate legal access to content,

(f) the importance of preserving human rights, including freedom of expression, and the right to property, and

(g) any other matters which appear to the Court to be relevant.

(3) An application for an injunction under subsection (1) shall be made on notice to the service provider and to the operator of each specified online location in relation to which an injunction is sought and to the Secretary of State.

(4) Where—

(a) the Court grants an injunction under subsection (1) upon the application of an owner of copyright whose copyright is infringed by the content accessible at or via each specified online location in the injunction, and

(b) the owner of copyright before making the application made a written request to the service provider giving it a reasonable period of time to take measures to prevent its service being used to access the specified online location in the injunction, and no steps were taken,

the Court shall order the service provider to pay the copyright owner's costs of the application unless there were exceptional circumstances justifying the service provider's failure to prevent access despite notification by the copyright owner.

(5) In this section—

"copyright owner" includes a licensee with an exclusive licence within the meaning of section 92 of this Act,

"infringing content" means content which is produced or made available in infringement of copyright,

"online location" means a location on the internet, a mobile data network or other data network at or via which copyright infringing content is accessible,

"operator" means a person or persons in joint or sole control of the decisions to make content accessible at or via an online location, and

"service provider" has the meaning given to it by section 97A(3) of this Act.

(6) Subsections (1) to (5) shall come into force on such day as the Secretary of State may by order appoint not less than 3 months and not more than 12 months after subsections (1) to (5) have been notified to the Commission of the European Communities ("the Commission") in accordance with the obligations of notification imposed by Directive 98/34/EC.

(7) If any comments are received from Member States of the European Union or the Commission after subsection (1) to (5) have been so notified and the Secretary of State reasonably considers amendments are necessary to give effect to such comments, he may make the necessary regulations within the period referred to in subsection (6)(a), to amend subsections (1) to (5)."

So there we are. Let's be positive and start with..

Upsides:

(1)There's a strong argument that the UK courts may have had, or some parties may have thought they had this power already at common law or otherwise (see the Irish case of Eirecom for some interesting persuasive comments re inherent jurisdiction - thanks to T J Macintyre for this comparison); and that what this amendment does, therefore, is build in a statutory framework of some certainty, with some safeguards, before the copyright lobby start mounting campaigns of litigation to close down alleged pirate host sites. We now do at least have the courtrequired to need to consider the impact on human rights, including freedom of expression, before making an order (though one may argue any order granted by a court must already be ECHR compliant, since they are a public body.)

(2) At least this involves the publicity and transparency of a court action. This is infinitely preferable to a worst case scenario of seeing covert pressure to add URLs of alleged "copyright infringement online locations" to an encrypted undemocratic non accountable blacklist taken under pressure by 90% plus of the ISP industry - and yes I am referring to the Internet Watch Foundation blocklist here. See my earlier work for descriptions of why this is absolutely the way to be avoided.

(3) This is not actually an entirely novel idea. This is not, as some have said, "the UK gets the DMCA for the first time evah!!". We already have statutory enabled take down of content on host sites in the shape of the E-Commerce Directive Regulations. If a host is notified of illegal or infringing content and does not take down, it becomes legally liable for that content. This incentivises take down. This has been true since (at least) 2002.

HOWEVER:

Downsides

(1) This is new in moving beyond simple take down of individual items of content (aimed at UK sites), to requirements of blocking access to entire sites (aimed at foreign hosts), and , apparently, indefinitely. (How long do these injunctions last? Forever? Who knows? How do you get them revoked??)

In other words, for the first time, Sony and the rest can now go to court and demand that every ISP in the UK blocks You Tube (forthe most obvious example). (See s 97B(2)(a) ) Or eBay. Or possibly Amazon. (Those reader reviews - don't they quote an awful lot? isn't that maybe copyright infringement??!! As for Google Library.. and libraries with digitised orphan works sites.. oh my..!)

(2) How is an ISP possibly going to prove that YT (say) does not have a "a substantial proportion of [its] content" infringing copyright? What does that mean anyway? The majority of its content? Probably not. A majority of the most viewed part of its content? A few GBs of materia,l regardless of percentage?)

(3) The biggy. Pace upside (2) above, there will in reality be no, or few, court applications, just non-publicised notifications. End of story. This is essentially legislation for covert extralegal censorship for the benefit of entrenched private interests. Why? you ask.

As Francis Davey has cogently pointed out, the threat that an ISP will be stuck with all the costs of the court action (see 97B(4) above in bold) will effectively nullify almost any ISP putting up resistance, when notified to block a site. What incentives do ISPs have to resist? Talk Talk may, because they've taken a stance of principle. But many many most small and large ISPs will just do sensible risk assessment and say "we have no idea if that's a pirate hosting site or legit; we can't afford the consequences if we don't block and get taken to court; ok, block it guys." Defending Internet freedom is not after all their core business model.

This is what the Americans call "chilling effects" on free speech. We are about to become very, very chilled (man). If you don't believe me, look at studies on notice and take down conducted in the UK, US and Europe - they unanimously show that ISPs and hosts faced with take down notices and potential legal liability, take down first,and worry about freedom of speech, or the true legal facts, very far second if at all. (In one amusing study , an Oxford team posing as rightsholder asked ISPs to take down a chapter from John Stuart Mill's On Liberty - out of copyright for several centuries. All the ISPs complied without a murmur.)

(4) Note the above 2 points assume that only the ISP is empowered to defend the action, if they so wish. Yes, the provision does say that notice should be given to the site owner (s 97(3)). But it does not say they are entitled to defend the action - that would be left for rules of court to decide. And in the more than likely event that no court order was needed anyway, because the ISP just agreed to block on notification, there would be no chance for the blocked site either to demand notice or demand a hearing in court. This has already happened with the IWF blocklist: remember when the IWF told ISPs to block a picture of a record cover by the Scorpions hosted by Wikipedia? Wikipedia didn't get notice (they found out when complaints flooded in ) nor a route to appeal to the courts. The banned site is a third party in this dispute , not a defendant - a really bad situation for due process rights.

Take proof of "innocence" again. Of course it's only the blocked site itself which really knows if it is a haven for copyright infringement or not, not the ISP. Yet it's the ISP who's meant to put up a defense, not the site. This is just plain silly. (And that's before we get to considering sites where content is encrypted. Do we just presume that that MUST mean pirated music files? What if it's legitimate corporate trade secret material in cloud storage?? What if it's confidential client data?)

(5) Scope of who gets blocked. This isn't just about web sites, still less about these far famed cyber lockers. Did they really mean to include an entire mobile network in the definition of an "online location"? Does that means if little Johnny uses his smartphone and 02 connection to share infringing downloaded music, Sony can get a court order to somehow block the whole 02 network? God knows. Sounds like very bad drafting to me. A location is also somewhere "via which copyright infringing content is accessible". Does that include Google?? Bye bye Google. it's been nice knowing you.

If any of this sounds dodgy to you, take action. Write to your MP or local paper. Follow ORG's advice here.

Finally -
Alternative aproaches:

if we're going to do this, let's do it half well. We can learn a lot from the US DMCA experience here. Some quick thoughts.

(a) Make the site to be blocked explicitly co-defendant with the ISP.

(b) Provide an appeal to courts or tribunal for sites blocked without court order, possibly via DMCA type put-back provisions (though these have not been much if at all used in the USA).

(c) To balance things out, allow rights holders and their trade bodies rights to join as parties in any such put-back litigation.

(d) Leave the normal discretion to the courts to allocate court costs as seems fair; no presumption ISP pays all, simply because they don't and can't know who's telling porkies.

(e) Provide a good faith safe harbour for ISPs who block with or without an order, and then find themselves sued for tortious interference with business, libel, breach of contract or similar.

(f) Consider restricting ability to apply for s 97B order to public body required to consider public interest NOT any industry player or other person - OFCOM might be the appropriate body. Rightsholders would apply to OFCOM (say) t take their case, rather as with criminal prosecutions.

(g) If not (f) at least consider sanctions for rightsholders making unfounded applications for s 97B court orders (as is true in DMCA without sky falling).

Hitler Discovers Cloud Computing Has Its Flaws

This has got to be one of the most abstruse Downfall tributes yet dubbed!!

Annoyed now: Google & Italy

Lots of the blogosphere exploded in indignation yesterday at the revelation that an Italian court had found Google execs, including privacy chief Fleisher, criminally liable for publishing an amateur vid on You Tube which invaded the privacy of the special needs child depicted being bullied therein. Charges of criminal libel were however dismissed. Lawyers amongst us wondered if someone had forgotten to tell Italy about the safe harbours for hosting intermediaries of the E-Commerce Directive , arts 12-15 which apply throughout Europe. Richard Thomas, the UK's former Information Commissioner, despaired that this verdict was giving privacy a bad name. Americans, used to the total (and one might say, over-wide) immunity given online intermediaries in relation to publication torts by the Communications Decency Act were even more flabbergasted. Google, understandably slightly over egging it a tad, called it a serious threat to the very freedom of the Internet, well, at least in Italy. Peter Fleischer, awarded a six month suspended sentence, sounded about as genuinely outraged as a top corporate exec can sound on his blog, and threatened appeals, hellfire and a boycott of pasta.

Pangloss was surprised but also a little smug, as she'd covered this story as far back as May last year and in detail here. While we're waiting for an opinion to come from the Italian court (apparently required within 90 days, and is there an Italian translator out there please?) it is maybe worth refreshing the reader's memory for the only four ways I saw this case could go against Google, assuming Google did plead the ECD (bit of a no brainer that).

1. Italy may not have at all, or properly implemented the ECD. In which case Google has a claim for damages against Italy and the case may eventually to end up in the ECJ to hilarious embarrassment.

2. Italy may not think the ECD applied to Google/You Tube as a host, because of doubts about the "independence" of YT as an intermediary from its users . This argument has prevailed in some high profile French cases, but has largely been rubbished in most the rest of the EU. In particular the "YouTube complicit with users" argument may have some legs when we are talking about YT making money from ads next to popular copyright videos eg MTV clips, and thus, conceivably, being seen to profit from copyright infringement (cf current Viacom US litigation); but has absolutely none in the case of a video of this kind. Basically, YT provided a platform and got nothing out the deal except trouble.

3. Italy may not think the ECD applied to Google/You Tube as a host, because the ECD may only apply to commercial operators. This is almost entirely exploded as a theory, and will be when the Google Adwords case gets its full judgment from the ECJ next month. The Advocate-General's preliminary Opinion, as I noted in November, already plainly agrees that a search engine like Google which makes money indirectly from adverts while free to users can fall within the ECD. The UK courts have also so agreed.

4. The ECD safe harbour for hosts says basically that they are immune from liability for what they publish until they receive "notice" of illegal content. It does not say either that they have to pre-vet videos, nor that they have to read all the comments below a video. Pangloss suspects this, if anything, is the legal ambiguity in the case. Google says they took down as soon as the police gave them notice; Gooogle's opponents say "but the video was up for two months and people complained in comments". Should those "comments" have been regarded as notice then? In which case, did Google have a duty to pro-actively read them?

This is the bit that gets me annoyed. Google's success, as the Guardian's Charles Arthur explained cogently the other day, is built on automating everything. This doesn't mean that Google should be free of all responsibility for what goes on on its watch, but it does mean that exercising that responsibility should be practicable, or we lose Google and all its free chocolate factory offerings. Reviewing every comment under the millions of videos on YouTube - and in a multiplicity of languages - and in real or near real time - is impossible. It is a human task. It is not automatable. You can design algorithms to compare copyright works to "watermark" versions of the same - an approach Google is working on to cut down on YT piracy - but you cannot design a computer programme which can work out what videos - or text or images - are libellous or privacy-invasive. You just can't; well maybe not until artificial intelligence has finally gone Singularity, and possibly not even then - human judges find it hard enough a task.

The ECD was actively designed to set up that kind of practical responsibility for hosts. Receive notice of illegality; take down, or else become liable for it. It raises other issues about kneejerk censorship (we'll come back to that), but it is at least a good start. So when a freak case like this undermines the notice and take down system, it really is time to get our facts straight.

One way out here is to provide an easy way for the worried to flag a video as "inappropriate". That definitely would be notice, to which a takedown response could be automated. Malcolm Coles accuses Google's systems for alert of not working here, so I went and had a look. YT puts a "Flag" button below every video, fairly obviously, but it seems you can only use it if logged in. This means setting up a YT account; a process convoluted enough to put off a casual viewer, especially a one time viewer alerted by some one saying "look have you seen this, isn't it terrible?" This might explain why people left comments rather than gave "notice" on the YT site in the Italian case.

In which case, should Google be liable for failure to design robust systems of notice?? If so we're setting a very, very high bar for ECD immunity. Every host - which includes nearly every ISP and business in Europe with a website - would have to design obvious and accessible notice and take down buttons for the public, or fear legal liability. I can tell you from informal survey research I did myself a while back that most sites have far, far less information (if any) on how to give notice than YT. And in the UK, there is nothing in our law that requires this degree of specificity.

But there is another , more profound reason why automating takedown is not only impossible but undesirable. Google's complaints policy on privacy (for the UK) says:

"We don't act on all privacy complaints. The complaints we do act on usually involve videos, comments, or other text that contain your image or private information (such as social security number, government I.D., or credit card information). These days there's a good likelihood that you might get caught on camera if you're in a public place - whether it be a security camera or a tourist who inadvertently captures your image in their video. If you're complaining about a video that shows you in passing while you're in a public place, chances are we won't take action on your complaint unless you're clearly identified or identifiable in the video."

As a semi expert in the field, that reads to me like a true outline of the law. It may not be true of Italy. However it shows the dangers of accepting any claim of privacy invasion lightly, from anyone, without checking. Human checking that is - possiby even a human lawyer, if that isn't a contradiction in terms. Do we want to live in a world where anyone can censor any online content simply by claiming some kind of abuse of rights - privacy, libel, copyright - and demanding automatic take down? It would be an easier world for Google, to be sure - and an appealing world for those who want, understandably, videos of their children being abused or bullied online removed as as fast as possible - but bad news overall for the public interest in free speech and the public domain.

So how do we square this circle? If Google - and its competitors - can't primarily automate what they do, they cease to be able to function. Yet notice and take down is a process which if automated is inherently either impossible or undesirable. Is there a solution? I'm only a lawyer, not a computer scientist. I'm not sure. But if the Google Italy fracas is to do any good, it should inspire a debate , between science, business, law and the public about what that solution might be.

EDIT: ta to Charles Arthur at the Guardian for the nice link.

Filtering round up: French filtering, Ireland backs off, UK sidesteps?

Bit of a round up here on some interesting stories of last few weeks on aspects of filtering that I've been accumulating.

Increasingly, stories as to filtering out illegal content such as child porn; blocking infringing downloads of copyright material by deep packet inspection and disconnection; and filtering to fight the "war on terror" are converging. For all of these, the same issues come up again and again: privacy; proof, transparency and other aspects of due process; and scope creep. These 3 stories illustrate this well. For my own recent take on the issue of Net filtering, as I said before, see my Internet pornograohy chapter on SSRN, which suggests the need for a Free Speech Impact Assessment before non transparent stateNet filtering schemes are introduced, for whatever purpose.

Filtering of illegal content in France

Thanks to @clarinette on Twitter (whose real name I am not absolutely sure of!!) for pointing me to another important European move towards non transparent Internet filtering - this time in France. From La Quadrature de Net:

Paris, February 11th, 2010 - During the debate over the French security bill (LOPPSI), the government opposed all the amendments seeking to minimize the risks attached to filtering Internet sites. The refusal to make this measure experimental and temporary shows that the executive could not care less about its effectivity to tackle online child pornography or about its disastrous consequences. This measure will allow the French government to take control of the Internet, as the door is now open to the extension of Net filtering.

The refusal to enact Net filtering as an experimental measure is a proof of the ill-intended objective of the government. Making Net filtering a temporary measure would have shown that it is uneffective to fight child pornography.

As the recent move1 of the German government shows, only measures tackling the problem at its roots (by deleting the incriminated content from the servers; by attacking financial flows) and the reinforcement of the means of police investigators can combat child pornography.

Moreover, whereas the effectivity of the Net filtering provision cannot be proven, the French government refuses to take into account the fact that over-blocking - i.e the "collateral censorship" of perfectly lawful websites - is inevitable2. Net filtering can now be extended to other areas, as President Sarkozy promised to the pro-HADOPI ("Three-Strikes" law) industries3."

LQN are never exactly ones to mince their words:-) so the strong nature of this statement should perhas be taken with some care - but Pangloss intends to go investigate this story further.

Ireland, Eirecom, disconnection and DP

Meanwhile in a surprising twist, Eirecom have apparently pulled out of the negotiated settlement they reached in January 2009 to disconnect subscribers "repeatedly" using P2P for (alleged) illicit downloading. This was the result of the Irish court case brought against them by various parts of the music industry for hosting illegal downloads, and appeared to open up a route to "voluntary" notice and disconnection schemes on the part of the ISP industry; a worrying trend both for advocates of free speech, privacy, due process, ISP immunity and net neutrality.

Now however according to the Times:

As part of the agreement, Irma said it would use piracy-tracking software to trace IP addresses, which can identify the location of an internet user, and pass this information to Eircom. The company would then use the details to identify its customer, and take action.

But the office of the Data Protection Commissioner (DPC) has indicated that using customers’ IP addresses to cut off their internet connection as a punishment for illegal downloading does not constitute “fair use” of personal information. Irma and Eircom have asked the High Court to rule on whether these data-protection concerns mean the 2009 settlement cannot be enforced.

This is very, very interesting. A court case on this might settle a number of outstanding DP legal issues: whether IP addresses are "always" personal data (on which see also a recent EU study demonstarting the disharmny across Europe on this) and if not, when; what the scope of the exemmptions for preventing and investigating crime are; and what"fair" means in the whole context of the DP principles, purpose limitation and notice for processing.

Not only that but as the Times indicate, the human rights issues which have been repeatedly aired in debate around "three strikes" generally, would also come into play as well, as the straight DP law. Is use of a customer's personal data to cut them off from the Internet a proportionate response to a minor civil infringement? Does it breach a fundamantal right of freedom of expression or association? Does it breach due process? This could be the DP case of the decade. Pangloss is geekily excited. If anyone out there is involved in this case, do let me know.

UK cops don't terrorise the IWF?

Finally , as widely reported, the UK Home Office has introduced a website hotline for the public to report suspected terrorist or hate speech sites. Reports are then vetted by ACPO, the Association of Chief Police Officers, who it appears can then take action, not only by investigating in normal way, but also by asking the relevant host site to take down. The official press release notes : "If a website meets the threshold for illegal content, officers can exercise powers under section 3 of the Terrorism Act 2006 to take it down." Indeed on serving such a notice, the host only has 2 days to take down or loss immunity under the UK ECD Regs.

As TJ McIntyre also notes, this is a rather significant development, not just in itself but for sidestepping use of the Internet Watch Foundation (IWF). There have been persistent rumours since and before then-Home Sec Jacqui Smith's famous speech in Jan 2008, that theUK government was attempting to pressurise the IWF into adding reports of hate speech/terror to its block- or black-list; and that the IWF was as strongly resisting this, hate speech being a somewhat more ambiguous and controversial matter than adjudicating on child sexual imagery.

It seems then that the IWF has held fast and the Home Office have backed off and created their own scheme, which embraces only take down in the UK, not access blocking to sites abroad (?). Whether this is ideal remains to be seen. The IWF, at least until recently had the services of esteemed law prof Ian Walden as well as a lot of accumulated experience, and may have been a better informal legal tribunal, than a bunch of chief constables, to decide on the illegality of sites under terror legislation. Who knows. On the other hand , adding alleged terror URLs to an invisible, encrypted, non public blocklist defeats every concept of transparency and public debate regarding restrictions on freedom of political speech, and Pangloss is glad to see it avoided.

Pangloss's view remains that such difficult non-objective issues are best decided by the body long set up to deal with questions of hazy legal interpretation: namely, the courts. The definition of "terrorist" material for the urposes of s 3 of the 2006 Act is as follows (s 3(7)):

"(a) something that is likely to be understood, by any one or more of the persons to whom it has or may become available, as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or Convention offences; or

(b) information which—

(i) is likely to be useful to any one or more of those persons in the commission or preparation of such acts; and

(ii) is in a form or context in which it is likely to be understood by any one or more of those persons as being wholly or mainly for the purpose of being so useful."

Well I hope that clears everything up :-) Still confused? Try s 3(8)).

"(8) The reference in subsection (7) to something that is likely to be understood as an indirect encouragement to the commission or preparation of acts of terrorism or Convention offences includes anything which is likely to be understood as—

(a) the glorification of the commission or preparation (whether in the past, in the future or generally) of such acts or such offences; and

(b) a suggestion that what is being glorified is being glorified as conduct that should be emulated in existing circumstances."

Er give me that last line again?

As with previous contested IWF rulings, the same questions come up again: what is the appeal from a take down notice under s 3 to the regular courts? What notice if any is given to the site owner and the public of therfact of and reasons for take down? What safeguards are there for freedom of speech? None of these are mentioned in ss 1-4 of the 2006 Act. Nor does there seem to be a general provision in the Act for Part 1 or the whole of the 2006 Act for appeals or review. Since the police are a public body however, one imagines that judicial review might be competent. EDIT However I am helpfully informed that ACPO is a company limited by giuarantee and regards itself as not a public body at least for the purpose of FOI requests. Clarity on this would be very desirable. And as noted above record keeping of take down for terror reasons seems to be poor due to voluntary compliance by ISPs.

Finally why introduce these powers if they are to be circumvented anyway? The Register reported on 12 November 2009 that so far no notices had been issued under s 3 anyway, because the UK ISPs involved had agreed to take down voluntarily, and no record has been kept of how many sites this involved. Furthermore if a site is taken down in the UK it won't be hard to resurrect it in a foreign country, where most extremist sites will be based anyway: El Reg reports that one site the police allegedly have their eye on, al-Fateh, a Hamas anti-Jewish kids site, is in fact hosted in Russia. One imagines this will continue to increase pressure on the IWF to expand the block list despite the latest moves.

HL Committee on the Digital Economy Bill

Yes, that again:-)

As Twitter and ORG resders may know, I'm meaning to write some kind of interim summary of what the Committee stage in the House of Lords has "fixed" in the Digital Economy Bill with respect to the file-sharing and copyright provisions (A: not a lot) and what still needs urgently brought up at Report Stage and if necessary all the way to and through the Commons (A: an awful lot). This despite the best efforts of some exceptionally knowledgeable and persistent Lords, including though not limited to Lord Lucas, L. Howard of Rising, Lord Clement-Jones and the Earl of Errol.

However it seems my job has possibly been done for me - by the Lords' own Human Rights Joint Committee. Their executive summary makes very, very interesting reading and is worth quoting in full:

"

The Digital Economy Bill has been introduced to update the regulation of the communications sector. Due to time-constraints we focus on a single issue in the Bill: illegal file-sharing.

Copyright infringement reports

The Bill establishes a mechanism whereby holders of copyright will be able to issue a 'copyright infringement report' to an ISP where it appears that the ISP's service has been used by an account holder to infringe copyright. ISPs will be required to notify account holders when a copyright infringement report is received in connection with their account. The ISPs will also be required to maintain a list of account holders who have been the subject of such reports.

We consider that it is unlikely that these proposals alone will lead to a significant risk of a breach of individual internet users' right to respect for privacy, their right to freedom of expression or their right to respect for their property rights (Articles 8, 10, Article 1, Protocol 1 ECHR). However, we call on the Government to provide a further explanation of why they consider their proposals are proportionate.

Technical measures

The Bill provides for the Secretary of State to have the power to require ISPs to take "technical measures" in respect of account holders who have been the subject of copyright infringement reports. The scope of the measures will be defined in secondary legislation and could be wide-ranging.

We do not believe that such a skeletal approach to powers which engage human rights is appropriate. There is potential for these powers to be applied in a disproportionate manner which could lead to a breach of internet users' rights to respect for correspondence and freedom of expression. We set out a list of points that the Government should clarify in order to reduce the risk that these proposals could operate in a manner which may be incompatible with the Convention.

Right to a fair hearing

The Bill provides for provisions for appeals in codes. There is little detail about the right to appeal in the case of copyright infringement reports or decisions about the inclusion of certain individuals' information on copyright infringement lists. We consider that statutory provision for a right to appeal to an independent body against inclusion on any infringement list would be a human rights enhancing measure.

Without a clear picture of the criteria for the imposition of technical measures it is difficult to reach a final conclusion on the fairness of the process for the imposition of technical measures. This is a further argument against the skeletal nature of the technical measures clauses. We ask for further information about the quality of evidence to be provided and the standard of proof to be applied to be provided on the face of the Bill.

Reserve powers

Clause 17 of the Bill provides the Secretary of State with the power to amend the Copyright, Designs and Patents Act 1988 by secondary legislation. The broad nature of this power has been the subject of much criticism. In correspondence with us, the Secretary of State explained that the Government intended to introduce amendments to limit the power in Clause 17 and to introduce a 'super-affirmative' procedure. The Government amendments would limit the circumstances in which the Government could use their powers to amend the Act by secondary legislation and would provide a system for enhanced parliamentary scrutiny.

Despite the proposed amendments we are concerned that Clause 17 remains overly broad and that parliamentary scrutiny may remain inadequate. We call for a series of clarifications to address these concerns."

Delightful to see such plain and clear and unadulterated good sense. I particularly applaud the second section: "We do not believe that such a skeletal approach to powers which engage human rights is appropriate." Put that on your tee shirt and smoke it.

In the meantime, all kinds of odd and eddying currents are flowing around the whole filesharing mess, here and abroad. In Blighty, we're seeing more and more sectors of industry, like the hoteliers, coming to the realisation of how bad the DEB will be for them as providers of public wi fi to the public; in Europe, the Belgian SABANE case, which imposed an impossible to fulfil filtering obligation on a Belgian ISP in the interests of rightsholders, is going on appeal to the European Court of Justice, with strong backing in evidence from trusted computer industry experts ; and the first Ozzie case on intermediaries and file sharing since KaZaa has been heard, and as with Oink in the UK ,the music industry have done themselves no favours by bringing it (though this case, being civil, includes no room for accusations of perverse juries).

More on all of these to come, I suspect, but on the last, I direct you meanwhile to my colleague Technollama's very helpful comments on the Australian case. From Pangloss, it is bonne nuit.

Google and China: the fallout continues

Since I wrote my last post suggesting (rather speculatively) that Google's apparent willingness to pull out of China might be linked to US state fears of (and pressure concerning?) cyber espionage against data held by Google about US citizens instead of/as well as Chinese dissidents, the world has become very interested in the succeeding revelation by Google that they are now working with the NSA to improve their cyber defenses.

This raises all kinds of further questions: doesn't Google have as much expertise in computer security itself as the Spooks? Or as someone put it even more conspiratorially on Twitter: hadn't we always assumed Google was working with the spooks? In which case what drove a public admission of it now?

All fun stuff and clearly far beyond the ken of a mere academic lawyer. But t0day's Grauniad has an interesting quote:

"Google is unlikely to be turning to the NSA for technical advice. Why then is it calling in the spooks? One reason could be that the world's dominant internet company is now in the crossfire of early skirmishes of the next cold war.

This thought was reinforced by Financial Times columnist Gideon Rachman. He'd been to the International Institute for Strategic Studies for a briefing on its annual survey, Military Balance. "The thing I found most interesting," he said, "was the confirmation that cyber-security is the hot issue … John Chipman, the head of the IISS, says the institute is about to launch a study of cyber-security which raises all sorts of issues. What if a country's infrastructure could be destroyed as effectively by a cyber-attack as by an invasion of tanks? How do you defend against that? How do you identify the culprits? What does international law have to say – might we have to revise our definitions of what constitutes an act of war?"

"Chipman argues, plausibly, that we are now at an equivalent period to the early 1950s. Just as strategists had to devise whole new doctrines to cope with the nuclear age, so they will have to come up with new ideas to cope with the information age."

I've noted before that I find it difficult to see how current international law can define cyber attacks and especially cyber espionage as armed attacks justifying, eg, the doctrine of self defense. But I've also now been to several events where military lawyers seemed to be if not saying then at least moving toeards exactly that. It is clear we are entering the era of what is sometimes called "justificatory discourse" regarding cyber war, or PR in less elevated circles. (The irony of the fact this is playing out as the Iraq inquiry goes on is not lost on Pangloss. Nor that MI5 appears to be trying to get in on the action by revealing what bad stuff Chinese cyber spies have been doing inthe UK too.) The same thing, is, of course, happening in China too: one report from there notes that the average Chinese citizen is mostly apathetic to the loss of Google but Chinese news coverage has " focused not on Google but on what is perceived as US "information imperialism." "

And meanwhile, the ever excellent Ray Corrigan points out (I think - lots of interesting stuff packed in here) that cyberwar may be becoming the latest bogeyman, following hard on pedophiles and alQuaeda to justify incursions into our civil liberties. And that we are hardly ones to condemn China's Great Firewall, when we do an awful lot of net censorship ourselves. (See further, dare I say, my own chapter here, which is the basis of the paper on cyber filtering and free speech I'm giving in a few days.)

OT: Looking at B2fxx reminds me I have been derelict of duty not to mention my collague Chris Marsden's much awaited book on 'Net neutrality: towards a co-regulatory solution' is not only just published by Bloomsbury but also available for free download under a creative commons licence at http://www.bloomsburyacademic.com/pdf%20files/NetNeutrality.pdf . Lordy lordy such wondrous times we live in!!

GikII 5!!!

Heads up GikII people; GikII 5 *will* be in Edinburgh June 28-29 2010. We have FINALLY managed to book a room!! More details soon. Already one paper offered on Gallifreyan legal procedure :-)

Google and China: Interesting Times?

So what do we think about the Google China affair then? For anyone who has been hiding under a rock on Pluto lately, Google announced on January 13th that it "may end its operations in China following a "sophisticated and targeted" cyber attack originating from the country." aimed apparently at gathering intelligence from Gmail accounts etc on human rights activits, dissidents and the like in China, and adding that in response they would no longer self censor their search database as they had since starting up in China in 2006. China, unsurprisingly, insisted that hacking was illegal in China and Google would have to toe the line and enforce local laws like other companies. Then perhaps slightly more surprisingly, the US government itself got involved in the form of a swinging speech by Hilary Clinton demanding that Beijing that should investigate the hack attacks on Google, and les directly, implying that China had a duty, like also-mentioned Tunisia, Uzbekistan, Vietnam and Egypt to stop restricting freedom of expression on the Internet. One commentator has compared this to Reagan demanding the pulling down of the Berlin Wall - only this time it was the Chinese Great Firewall. For China to back down wouldbe almost unprecedented; so at least China insider has said that in six months he expects there to be no Google.cn. Meanwhile information filters out that similar espionage hacks seem to have been mounted by Chinese hackers on other US companies in recent months , seeking economic espionage intelligence; two of the companies were major US oil companies.

The main response to this has been huzzah! In a world apparently dominated by bankers taking as many undeserved bonuses as they can sweep up, one can sense the eagernness of the world to believe that a big company can still want to do the right thing. Certainly even if Google's "Do no evil" motto has tarnished a little lately they do stand out as appearing in the world of corporate politics to give a damn about human rights. A Grauniad columnist wrote perhaps a little over excitedly yesterday:
"

we can now again unreservedly identify, politically as well as aesthetically, with Google. This is the spirit of liberal universalism. It says that there are some universal rights it is not the prerogative of any state or "civilisation" to curb; and that, as the Universal Declaration of Human Rights states, the right to information freedom is among them."

But is anything in life really this simple? As many have pointed out, China is a market where Google is not dominant, having only around 30% of the market. But pulling out of the world's largest emergent economy is still rather a bold step. Unless perhaps you consider the rather less publicised fact that Google only makes money by click through on ads; and reportedly, the Chinese don't yet bother to click through (Google don't reveal the turnover of their Chinese business as they do their US profits). Still it seems like either a very brave or a very foolhardy endeavour. (Bill Thompson comments that "Threatening to pull out of China is like threatening to spit on a whale".) (Unless you think it's all merely a very successful PR stunt.)

A braver woman than Pangloss might even sail into the world of conspiracy theories, and consider the Google response and the Clinton speech as part of a combined PR drive. China expert Orville Schell in this video recorded at Davos, notes that

"Google has become more like a nation than a company. By this he means that not only is Google closely connected to the Obama administration, but the company has a high resonance in the western world. Only a company like Google could take such a stance against China".

Why would the US want Google out of China, or at least, a very public fuss about the hack attacks on Gmail accounts by China? Well cybersecurity experts have long privately admitted that although rather more fuss has been publicly made about "cyberwar" denial of service attacks on critical infrastructure (as , famously, against Estonian and Georgian banks and media sites, etc), the foremost worry is actually about cyber espionage. Chinese keylogger code has been found before now on military computers; it is known that it is almost impossible to 100% protect against this. Google store invaluable information not just about Chinese dissidents but US citizens - and companies. If you were a Chinese espionage officer would you target the unprotected Gmail user or the more protected Google servers, or the very well protected servers carrying confidential military or corporate secrets?

For a cyber lawyer, the interest here is whether we are approaching the point where cyber espionage might begin to be characterised as "cyberwar". Just as with DDOS attacks, the current law is badly equippd, perhaps quite properly, to make this conceptual leap. I spoke on this in Estonia last summer, at the NATO backed CyberSecurity Centre. International treaties demand an "armed attack" by a "state" before rights of self defence or international humanitarian law can begin to apply. Is use of code to find out information an "armed attack"? Difficult to see (although there was some discussion of this back in the good ol' days of Star Wars defence.)

More significant still is the pained matter of attribution. No one can prove that attacks by Chinese hackers came from and with the authority of the Beijing government - and circumstantial evidence simply cannot be regarded as decisive here given the easy obfuscation of Internet traffic and addresses, and the flourishing private enterprise cyber black market. Much of the cybercrime in the world originates from networks of zombie machines run (apparently:-) by Russians with the machines scattered through every country from the UK to Brazil; this does not mean (necessarily) that Russia, the UK or Brazil is responsible as a state aggressor. The question of attribution will have to be far better discussed before we can go any further down this line. In the meantime however, it is interesting to note that there are reported American stirrings of interest in a cyberwar treaty to reduce cyber-attacks, as with munitions or poison gas weapons: such a treaty has long been resisted by the US, but now that position seems to be shifting - why?*

And meanwhile today brave little Twitter, hero of the Iran dissidents, announces they are sub contracting research to avoid being blocked by China. All in all very interesting times - in the Chinese sense?

*Well perhaps because as I discover the minute I finish writing this, 37% of US critical infrastructure firms think cyber attacks are growing and 2/5 expct a majot cyber security incient within the year - say McAfee at Davos.

Life, etc

Via my very lovely colleague Judith Rauhofer;

Quote of the week by Lord Clement-Jones:

" When a man is tired of the Digital Economy Bill, he is tired of life. I am sure this show will run for a long time."
And indeed, now the debates in HL Committee over the "three strikes" parts of the DEB have ended, watch this space for some thoughts on how the debates have gone, shortly. For now, interesting to note that legal process needs tweaking too: see the latest Which? report on the deluge of complaints against P2P ambulance chasing bully firm , ACS Law (creditably, much mentioned in the Lords debate.)

"

ACS:Law has sent thousands of letters to people claiming they have illegally downloaded material and offers them a chance to settle by paying around £500. 

Which? says it has been approached by some - including a 78 year-old accused of downloading pornography - who have no knowledge of the alleged offence.

ACS:Law said its methods were accurate.

The London-based firm said that it would send more letters soon."

In other news, I'd also like to comment on Google and China (interesting response here from the reliably interesting Bill Thompson, one of the few voices to be more realistic than triumphant here), connected cyberwar developments and public open data in the UK - to be continued!! (Oh and I'd really like to talk about whether full body airport scanning really constitutes distribution of child porn (eh?) as oposed to invading privacy (for sure). But chance would be a fine thing!

Also, the first review of Law and the Internet 3rd edn!! Thanks to Andrew Katz for preparing me, er, letting me know!!

ORG : Fight the Digital Economy Bill unconferences

Via ORG: a series of meet ups in Manchester, London, Edinburgh and Sheffield to learn more about how to effectively lobby your MP on digital rights matters, with current especial reference of course to the DEB, graduated response, disonnection etc.

This is a great and timely initiative and if you have any interest in learning how to actually participate in democracy and make your voice count, come along!! It's free!

I will be attending the Edinburgh one, and am happy to talk to people about what I've seen of the Lords debates on the amendments thus far - I'll also, time willing, be blogging in detail on this this week or next as we approach the end of the committee Lords stage. Hugh Hancock of Strange Co machinima fame will also be there and of course Jim Killock, director of ORG. (Will we have a Technollama, Andres??)

Details and sign up form here.

"The Open Rights Group wants to help you get your voice heard: by helping you to talk to your MP. Booking an appointment with your MP and saying what you think is easier than you might think.

At this event you will:

• Gain the confidence to talk and write to your MP
• Rehearse talking to your MP one on one
• Find out what MPs will ask you
• Learn how to write to your MP and get a response
• Meet other people campaigning against disconnection without trial in the Digital Economy Bill

Talking to your MP is the most effective way to make sure Parliament knows how unpopular and bad disconnection without trial really would be.

In these short sessions, you can try out talking to your ‘MP’ or watch someone else having a go, and learn how to get your points across in a way that an MP will understand."

Quote of the debate so far

Lord Lucas, Jan 12th, Committee Stage day 2

"Lord Lucas: I agree with what the noble Lord, Lord Mitchell, has just said. We have to be careful about setting out to criminalise, as he says, a large proportion of our population, particularly when it involves putting them not in the hands of the criminal law with all the safeguards, care and rationality that involves, but in the hands of firms of solicitors who are out to make a

12 Jan 2010 : Column 423

buck from the process. None of these people are nice to deal with. Even where the majors have been involved in prosecutions-there are not many cases of that-they are relentless. It is not at all nice to be on the receiving end of one of their prosecutions. They can take a long time, cost a great deal of money and go on, with unspecified consequences, for a period of years. It is not like a parking fine or some simple, reasonable but reasonably painful financial consequence of wrong-doing. This is putting people into the civil justice system with civil levels of proof. We should be careful about doing that and the circumstances in which we do it."

The DEB amendments; 1 in a series..

You might wonder where I've been this time. Well, Pangloss is currently signed off work with a prolapsed disc. Yes it's Ok, it wsn't fun, but I'm getting better now, thanks. Anyway, one thing I plan to do for **fun** this week now I have time on my hands is sit down and have a look at the hundreds of DEB amendments. Yes I know; I'm that sad.

As a starter, it's important to remember not all the DEB is about disconnection of filesharers and neither are all the amendments.

One amendment Pangloss might draw attention to in particular has had quite a warm reception in parts of the press, odd perhaps given recent Google/Murdoch fracas (or not so odd?:). The Telegraph note

Lord Lucas, a Conservative peer, has tabled several amendments to the Digital Economy Bill

that would settle a number of copyright and electronic publishing arguments once and for all.

The one that’s been catching the headlines is immunity for search engines from prosecution under copyright laws as they go about their normal business of searching the web. Every provider of a publicly-accessible website shall be presumed to give a standing and non-exclusive licence to search engines to copy their content for the purposes of searching. A machine-readable file (robots.txt, for example) can be used to demonstrate that such a licence is not granted, should the owners of the website prefer not to be indexed.

Brilliant. Immediately all of the rows and back-and-forth between ill-advised newspapers and publishers is given a clear legal footing. It would be legal to be a search engine, and you can tell them to keep out if you wish. A few sentences saves millions of pounds of court costs and clears the headaches of everyone involved."

while the Guardian adds

" it would, for example, give Google legal immunity with which to index News Corp content, settling that thorny topic once and for all. But all would not be lost for publishers who want to retain control. Lucas's amendment does make provision…

The presumption (of having an automatic license) may be rebutted by explicit evidence that such a licence was not granted. Such explicit evidence shall be found only in the form of statements in a machine-readable file to be placed on the website and accessible to providers of search engine services.

In other words, Google would be free to copy everything - but a publisher blocking search spiders with a robots.txt file would be taken as withholding that right. An explicit "fair use" provision, which Google often cites against copyright-abuse claims, does not exist in UK law."

Interesting stuff?

NOTE: fun summary of this week's first debate at the Register

Oink site owner cleared of conspiracy to defraud

Well I guess we didn't see that coming.

"A man who ran a music-sharing website with almost 200,000 members has been found not guilty of conspiracy to defraud at Teesside Crown Court.

Alan Ellis, 26, was the first person in the UK to be prosecuted for illegal file-sharing...

Oink facilitated the download of 21 million music files...During the trial, which lasted seven days, Teesside Crown Court heard that users were required to make a donation to be able to invite friends to join the site.e jury was also told that Mr Ellis received $18,000 (£11,000) a month in donations from people using his website."

Well this is interesting. Is this the UK's own homegrown Pirate Bay case only coming out in reverse, or is it merely a blip from a perverse jury probably stuffed full of students and ne'er do wells? We may not find out for some time..

Some very strange elements here. Users had to make "donations" - yet they, who were looking for free music, donated £11,000 a month? How good was this site? An earlier Beeb story tells us "The court heard that membership to Oink was free, but by invitation only, and anyone wishing to propose a friend had to make a five dollar payment." Er that's an entry fee NOT a donation..

Te money was alleged to be used to buy a new server. You can buy a decent server for about £1000 or less these days..not £11K per month. The site was designed not to "defraud" but to allow the owner to practice his skills to bcome employable, he claimed. Yet "the website was developed from a free template, which had a torrent file-sharing facility included in it". In other words, it came as a kit. Not terribly skill enhancing? And this unemployed worker wannabe had $300,000 in his bank account when the police raided. All this rather points to the perverse jury theory.

Why did the CPS go for conspiracy to defraud anyway? Why not as in Sweden, a criminal copyright offence, since given the "donations" and profits, surely there is as much evidence of commercial trading in copyright infringement as with any normal geezer selling CDs off the back of a van? Did they decide not to take that approach because it was a torrent site not a hosting site? That would be my guess (although of course the Pirate Bay was a torrent site too) - it would be great if someone out there knows more.

Not a good week for the music industry altogether, as BIS back peddles on clause 17 of the DEB as well! Perhaps the most interesting sociological point here is to wonder why the jury came in with such a strange verdict. Has the music industry dug their own grave by making their enforcement tactics so alienating that juries will turn their back on overwhelming evidence of guilt? Hubris, ate??

The Google Toilet

This is getting a lot of pass-round in ye olde blogosphere. As with some of the vids I post here about filesharing, it makes some good points evocatively but I do not endorse the overall conclusion for one simple (or maybe not so simple) reason; even if you effectively feel you have to use Google (and there are rivals, especially in the non search categories of services) you can delete your Google cookies. But - another fun one to show students!

Tell it to the Marines: 2010, same news at 10

And so as it ended, it begins.. (obvious reference to Dr Who's regeneration deleted , sadly..)

The Beeb reports a pre emptive attempt by Bono to get headlines when as we all know this the time of year with No News.

""The immutable laws of bandwidth tell us we're just a few years away from being able to download an entire season of '24' in 24 seconds," he wrote.

"A decade's worth of music file-sharing and swiping has made clear that the people it hurts are the creators...the people this reverse Robin Hooding benefits are rich service providers, whose swollen profits perfectly mirror the lost receipts of the music business."

Um yeh. Would that be the same rich ISPs who are going to have to pay an estimated £500m to prop up the failure to innovate of an entirely other industry?

As to:

In a move that drew significant criticism, Bono went on to suggest that the feasibility of tracking down file-sharers had already been proven.

"We know from America's noble effort to stop child pornography, not to mention China's ignoble effort to suppress online dissent, that it's perfectly possible to track content," he said."

...I really feel any comment is redundant.

Oh and happy new year!!