Want to do a PhD with me in what happens to your FB profile when you die?

I'm very happy to announce the below (and even happier to acknowledge the support here of the Horizons DTC and its Directors , Derek Macaulay and Tom Rodden. This should be fun :)

PhD Studentship in

Law

University of Strathclyde - Faculty of Humanities and Social Sciences – School of Law -– Legal Aspects of Transmission of Digital Assets on Death

The School of Law in the University of Strathclyde invites applications for a PhD studentship which will research the area of how the law regulates the transmission of digital assets on death, including notions of access, control, propertisation, and ownership. These assets might include: Facebook profiles, photos on Flickr, tweets, virtual assets in online game worlds such as Second Life, e-money, blog texts, eBay trading accounts, etc. This is a novel area where the student will be expected to research independently into appropriate areas of private law (eg property, succession, probate, contract) as well as intellectual property law, personality law and privacy law. A back ground in technology law is not essential, nor a technology qualification, but an interest in the information society is probably essential.

Applicants from any jurisdiction (including non-UK EU jurisdictions) are welcomed but English law will most likely form one of the jurisdictions of the study. Applicants should hold a first or upper second class Honours degree or equivalent in an appropriate discipline. A Masters qualification may be helpful. The studentship is funded by the Horizon Digital Economy Research Hub (https://www.horizon.ac.uk/) who are a major interdisciplinary centre for study of the Internet and ubiquitous computing funded by the RCUK Digital Economy programme and based at Nottingham University; the successful candidate will be based within the expanding Centre for Internet Law and Policy at Strathclyde Law School, but will have opportunities to participate in Horizons activities. The student will be supervised by the Director of CILP, Professor Lilian Edwards.

Applicants should submit, by SEPTEMBER 16 2011, a full CV, two academic references, evidence of academic qualifications to date and a covering letter detailing interest in the area of research to:

Janet Riddell (Horizon Digital Economy Scholarship), Graduate School Manager, Faculty of Humanities and Social Science, Room LT205, Livingstone Tower, 26 Richmond Street, Glasgow, G1 1XH

Or by e-mail to: hass-postgrad@strath.ac.uk

Successful applicants will have their fees at home/EU rates only ((sadly)) waived for three years together with an annual maintenance award for three years of £13,590. The scholarship is for one year in the first instance and subject to satisfactory progress, will normally be renewed up to the maximum of a further 2 years.

Visit www.strath.ac.uk/postgrad for general information on postgraduate research study at the University of Strathclyde and http://www.strath.ac.uk/humanities/courses/law/courses/lawbyresearch/ for further information on research degrees in the Law School.

Informal enquiries may be addressed to: lilian.edwards@strath.ac.uk

Closing date: Friday 16^th September 2011

The University of Strathclyde is a charitable body, registered in Scotland, number SCO15263

Extra infro from Pangloss: applicants (esp those from private law not technology backgrounds, who are very welcome to apply) might like to check out some of the below:

my talk on death and digital assets (as given in various venues)

my video interview in HK about this

Devin Desai on this from US perspective

New piece by Molly Wilkens

PRIME-LIFE on digital assets and death

I'm happy to informally answer queries on lilian.edwards at strath.ac.uk. Feel free to pass this on.

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."

The Idiot's Guide to Why Voicemail Hacking is a Crime

Not what I should be doing right now, but in the wake of the amazing News of the World revelations, there does seem to be some public interest in a quick note on why there is (some) controversy around whether hacking mesages in someone's voicemail is a crime.

Most of the longer version of this can be found in an excellent memo by Chris Pounder of Amberhawk from October 2010 and those of you with more legal background are therefore directed there.

RIPA

The first relevant provision is RIPA (the Regulation of Investigatory Powers Act 2000) which provides that interception of communications without consent of both ends of the communication , or some other provision like a police warrant is criminal in principle. The complications arise from s 2(2) which provides that:

“....a person intercepts a communication in the course of its transmission by
means of a telecommunication system if, and only if ... (he makes) ...some or all of the
contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication”. [my itals]

Section 2(4) states that an “interception of a communication” has also to be “in the course of its transmission” by any public or private telecommunications system. [my itals]

The argument that seems to have been been made to the DPP, Keir Starmer, on October 2010, by QC David Perry, is that voicemail has already been transmitted and is thus therefore no longer "in the course of its transmission." Therefore a RIPA s 1 interception offence would not stand up. The DPP stressed in a letter to the Guardian in March 2011 that this interpretation was (a) specific to the cases of Goodman and Mulcaire (yes the same Goodman who's just been re-arrested and inded went to jail) and (b) not conclusive as a court would have to rule on it.

We do not know the exact terms of the advice from counsel as (according to advice given to the HC on November 2009) it was delivered in oral form only. There are two possible interpretations of even what we know. One is that messages left on voicemail are "in transmission" till read. Another is that even when they are stored on the voicemail server unread, they have completed transmission, and thus accessing them would not be "interception".

Very few people I think would view the latter interpretation as plausible, but the former seem to have carried weight with the prosecution authorities. In the case of Milly Dowler, if (as seems likely) voicemails were hacked after she was already deceased, there may have been messages unread and so a prosecution would be appropriate on RIPA without worrying about the advice from counsel. In many other cases eg involving celebrities though, hacking may have been of already-listened- to voicemails. What is the law there?

When does a message to voicemail cease to be "in the course of transmission"? Chris Pounder pointed out in April 2011 that we also have to look at s 2(7) of RIPA which says

" (7)For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it."

A common sense interpretation of this, it seems to me (and to Chris Pounder ) would be that messages stored on voicemail are deemed to remain "in the course of transmission" and hence capable of generating a criminal offence, when hacked - because it is being stored on the system for later access (which might include re-listening to already played messages).

This rather thoroughly seems to contradict the well known interpretation offered during the debates in the HL over RIPA from L Bassam, that the analogy of transmission of a voice message or email was to a letter being delievered to a house. There, transmission ended when the letter hit the doormat.

There remains a little wiggle room in that at the dates some of the older hacking incidents may have occurred, the voice messages might plausibly have been physically stored on local answerphones, not, as is common with mobiles and mobile voicemail, on remote voicemail servers. This leaves a flicker of concern that the messages might not be "stored" on "the [same] system by means of which the communication is being, or has been, transmitted"

Against this quibble would be that a purposive interpretation of the law should not distinguish for no reason between (say) fixed phones with physical answerphones, and mobile phones with remotely stored voicemail. OTOH, criminal laws are always to be interpreted restrictively on the grounds that no one should find themselves accused of breaking a criminal law they were not deemed to know.

A person who is guilty of an offence under subsection (1) or (2) shall be liable on conviction on indictment, to imprisonment for a term not exceeding two years or to unlimited fine.

CMA

One of the strangest parts of this controversy though has been the relative absence of commentary - from the DPP or otherwise - that even if the most restrictive interpretation above of RIPA was adopted - computer hacking under the Computer Misuse Act, s 1 , could easily provide an alternative offence. (Nick Davies of the Guardian does mention it however in the same Memo to HC as quoted above from Amberhawk. )

CMA s 1 says that

"(1)A person is guilty of an offence if—

(a)he causes a computer to perform any function with intent to secure access to any program or data held in any computer [or to enable any such access to be secured] ;

(b)the access he intends to secure [or to enable to be secured] is unauthorised; and

(c)he knows at the time when he causes the computer to perform the function that that is the case." [my italics]

Max sentence is 12 months jail but the aggregated version (eg unauthorised access plus raud under s 2) can now go up to 5 years jail. (s55 of the DPA (misuse of personal data, which would also apply)was also amended recently to allow for a jail sentence (following the HMRC scandals) - but Parliament has yet to bring this into force.)

Putting in a guessed-at PIN to access voicemail maps well to "causes a computer to perform any function". CMA makes no requirement that reasonable security is overcome, or anything of that kind. Nor does the material hacked have to be deleted or sold or anything of that kind, merely accessed.

But is an answerphone or a voicemail server or a mobile phone, a "computer"? The word was deliberately left undefined in the 1990 Act so it did not become outdated as technology progressed. (This has proved wise.) However the CPS guidance quotes "DPP v McKeown, DPP v Jones ([1997] 2Cr App R, 155, HL at page 163) [where] Lord Hoffman defined a computer as "a device for storing, processing and retrieving information". " This seems easily wide enough to include any or all of a mobile, a smartphone, an answerphone or a voicemail server.

The advice given the DPP may have taken into account other worries about prosecuting either the RIPA or CMA offences. It woukd be very good to know exactly what, if any. In the meantime however there seems no good reason why criminal prosecutions cannot be immediately brought against those factually proven to have taken part in voicemail hacking.

Corporate criminal liability

A final point is who would be liable for such a criminal offence. Just the reporter who put in the PIN, or, say, the proprietor of the newspaper in question, which benefited? This is an issue of corporate criminal liability where the relevant law in England & Wales is from Tesco v Nattrass [1972] AC 153 . The widely quoted test from that by L Reid is the "directing mind test" as follows:

The person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company.

This is regarded as, sometimes unfortunately (it has been amended for corporate manslaughter) , pretty restrictive, and likely to apply only to the most senior directors or managers. ?? as to say, the liability of Wade or Murdoch for NI.

Deleting the evidence

Finally if the rumours circulating that millions of emails have been deleted by NI to foil a criminal investigation are true, there would be an alternative of prosecuting attempt to pervert the course of justice - which as a common law offence has an unlimited sentence in Scotland and I think in England too. So burning the evidence is not a get out of jail free card :)

WIPO slides

As promised, the ppt version of the report as below (slightly shorter!!)

Wipo 2011

View more presentations from lilianedwards.

My report for WIPO on filesharing and intermediaries

Briefly, WIPO has just released two studies on copyright, intermediaries, filesharing and implications such as the rise of graduated response, the first of which I prepared:

A. Role and Responsibility of the Internet Intermediaries in the Field of Copyright, by Professor Lilian Edwards

This Study aims to identify the trends and principles governing the changing role of Internet intermediaries, summarizing the evolution of business models and outlining the complex issues to be considered in developing public policy in this field.

B. Comparative Analysis of National Approaches of the Liability of the Internet Intermediaries, by Professor Daniel Seng and Professor Juan Jose Marin

In this second Study, Professors Seng and Marin seek to identify the possible commonalities among different liability doctrines. The Study is divided into two parts, the first consisting of a “Survey of National Legislation and Jurisprudence on the Liability of Internet Intermediaries in the Field of Copyright and Related Rights”, covering 30 jurisdictions¹. The second contains a conclusion resulting from the Survey, which defines trends and commonalities in the treatment of the responsibility of Internet intermediaries.

Both (I would modestly suggest) are worth a read , though the second as so far issued is empirical description, no conclusions yet. They do however dovetail usefully. My report's tentative conclusions are:

• - Global consensus on NTD as sensible balance between rightsholders and intermediaries broken in copyright field

• - No consensus on replacement regime

• - Graduated response (GR) solutions are costly, error prone and sanction may be disproportionate; pose serious risks to fundamental rights and public interest in digital inclusion; and their effectiveness is unproven.

• - Accordingly recommended that any attempt to impose GR by law should be justified by prior, independent ,empirical investigation, taking into account not just economic factors but also (i) impact on fundamental freedoms (ii) public interest in digital inclusion and promotion of innovation and (iii) state of incentives to create a market of legal alternatives to illicit filesharing.

• - If GR regimes are so justified, regimes should be introduced via legislation, subject to constitutional scrutiny , rather than by voluntary or coerced action

• - Solutions imposing fewer costs on user and public interests should be adopted first, eg, “notice and notice” rather than notice and disconnection, and empirically monitored to see if they prove sufficient

• - International treaty should lay down rules on safeguards to be observed in any GR regime imposed by law. In particular, independent and transparent scrutiny of allegations of infringement before sanction, as well as judicial appeal after such, is vital.

• - Website and content blocking and blanket monitoring in particular should both be subject to stringent scrutiny as presumptively in breach of fundamental freedoms.

The - The international community should give pressing attention to what legal steps must be taken to facilitate and incentivise new business models for monetising digital content.

I just spoke to WIPO's Standing Commitee re the report which I may say more about later (currently leaching the free wi fi at Geneva Airport. ) I also had request for the slides I used which summarise the rather long report : WIPO is putting these up itself but I will try to add them here too shortly.

Hargreaves IP Review : first impressions

The Hargreaves review, or as we should call it, Digital Opportunity: A Review of Intellectual Property and Growth, is finally out, and the blogosphere is awash with comment. Like many people, Pangloss has only had a chance to glance at it and note that the key recommendations are described thus [my italics added]:

• an efficient digital copyright licensing system, where nothing is unusable because the rightsowner cannot be found;
• an approach to exceptions in copyright which encourages successful new digital technology businesses both within and beyond the creative industries;
• a patent system capable of preventing heavy demand for patents causing serious barriers to market entry in critical technologies;
• reliable and affordable advice for smaller companies, to enable them to thrive in the IP intensive parts of the UK economy;
• refreshed institutional governance of the UK’s IP system which enables it to adapt organically to change in technology and markets.
  

Most of this seems at first sight to be very good news. The emphasis throughout on an empirical evidence base for IP policy is quite staggeringly refreshing in a field which is known to be the most lobbied by partisan stakeholders of any economic policy area. Much of this, one hopes, comes from the fact that serious academic economists , not paid by any industry or rightsholder sector, have contributed in depth to the Report. There is a formidable list of supporting evidence and documents which will be a great resource for those working in the field. In particular the restraint in paragraphs like this is to be treasured:

"No one doubts that a great deal of copyright piracy is taking place, but reliable data about scale and trends is surprisingly scarce. Estimates of the scale of illegal digital downloads in the UK ranges between 13 per cent and 65 per cent in two studies published last year. A detailed survey of UK and international data finds that very little of it is supported by transparent research criteria. Meanwhile sales and profitability levels in most creative business sectors appear to be holding up reasonably well. We conclude that many creative businesses are experiencing turbulence from digital copyright infringement, but that at the level of the whole economy, measurable impacts are not as stark as is sometimes suggested."

Rightsholders have claimed it as a victory that no US style general exception for "fair use" (or even "transformative use" as Gowers put it) has been proposed: this is rubbish, as all sides know that would require rewriting the EU Infosoc Directive, which would take countless and possibly fruitless years of negotiation. Instead the report suggests the UK uses to the full the exceptions that are available within the EU framework, including parody, archiving, data mining and format shifting exceptions, which would finally allow the long suffering public to legally rip their own CDs to their own iPods. This is all good stuff, as the British Library have already said - but it has to be remembered the Gowers report recommended almost exactly the same things several years back, and precisely nothing happened. Let's hope Hargreaves won't go the same way.

The most unexpected outcome was probably the attention paid to the way that "patent thickets" increasingly commonly stifle innovation and hinder new intrants with new technological ideas. My colleague Technollama, a long time open source and open science advocate has written approvingly of the plans announced , which is good enough for me.

My own interest is most piqued by the recommendation that the Government bring together rights holders and other business interests to create the world’s first Digital Copyright Exchange. The idea behind this proposal is that it will make it easier for users to obtain licences of rights holders' works for digital exploitation, in the hope that this will help drive digital innovation - for example, perhaps finally allowing ISPs like Virgin to offer legal P2P for a flat fee, something which major music rightsholders have stymied for several years by refusing to issue blanket licenses for unlimited sharing. The history of Spotify is also instructive here - though they have had huge success in parts of Europe, their launch in the US has been endessly delayed by the music rightsholders refusing to play ball. Every new online service suffers from barriers to offering comprehensive current and back catalogue. It is extremely heartening to see a UK government review say upfront that the future for the content industries lies not with ever more draconian IP enforcement strategies, but with creating a market where attractive licensed content is available in ways that rival and compete with the illegal market; and where the main aim is not to alienate the potential consumer but to offer him/her a great product.

Not coincidentally , Pangloss has just come to exactly the same conclusion in her own report for WIPO on the Role and Responsibilities of Online Intermediaries in Copyright which will be launched very shortly in Geneva. Some parts of the EU policymaking machine also believes better cross licensing and collecting society arrangements are the longterm answer, not anti consumer measures like restricting services in some markets, and promoting graduated response. Hopefully the UK will now make these points during the upcoming renegotiations of the IPRED Directive.

To quote again:

"Such research as exists indicates that we should be wary of expecting tougher enforcement alone to solve the problem of copyright infringement. Instead, Government should respond in four ways: by modernising copyright law; through education; through enforcement and by doing all it can to encourage open and competitive markets in licensed digital content, which will result in more legitimate digital content at prices which appeal to consumers."

However, as one blogger has already noted ,the proposal is likely to be resisted to the teeth by some large creative industry rightsholders . Taylor Wessing note:

"Issues that arise include:

• Who will police whether rights are being accurately recorded within the Exchange? The opportunity for abuse is immediately apparent, with many disputes over ownership being flushed out at the outset of the Exchange.
• How will limitations on licences (e.g. territorial restrictions or particular restricted uses) be recorded? Some licences will have a string of limitations attached to them, making the Exchange quite complicated to navigate for a lay person.
• Who will fund it? It is unlikely to be the Government given these times of austerity. Therefore, funding is likely to come from within the creative industries. Is this a cost that the industry can stomach or will this be seen as yet another cost to the creative industries, along with those of tackling digital piracy?

Finally as expected the report makes no new recommendations concerning the Digital Economy Act: it was known this would be off limits given the uncertainty around the judicial review. Given that there is still a very interesting Chapter 8 on enforcement (covering counterfeit goods and a possible small patent court claim for patent owners, as well as copyright), which concludes by recommending that

"When the enforcement regime set out in the DEA becomes operational next year its impact should be carefully monitored and compared with experience in other countries, in order to provide the insight needed to adjust enforcement mechanisms as market conditions evolve. This is urgent and Ofcom should not wait until then to establish its benchmarks and begin building data on trends."

Interesting times. In the meantime Hargreaves and his team are to be given every support in the hope these difficulties can be overcome - and that these proposals will not fester like Gowers.

Do You Want To Know A Secret?

Pangloss thought she was really going to write something serious about superinjunctions after the #Twitterstorm got on her nerves this morning, but it seemed by the time she got time that everyone else had written about it already. Including of course, David Allen Green.:)

Then she worried a bit about what the effect of all this might be on Twitter itself, rather than the celebrities, the newspapers, or the courts. Intermediaries worry a lot about being the ones who take the flak for the actions of their users. As a result most have abuse policies which boil down to "complain and we'll find a clause in our T & C which lets us take down the offending comment or possibly even kick the blighter off our site".

What worried me, then, was the suggestion this a.m. (which I now can't find, but believe me, it's out there) that Twitter could automatically redact tweets which threatened to infringe superinjunctions (ah found it!). Because I very much doubt they can . I suspect all they do right now is take down, in whole, on complaint, and that may not satisfy irate celebrity lawyers. Twitter is very very much more likely only to be able to automate removal of every tweet (and all of it) featuring say Jemima Khan's name . Or Gordon Ramsay's. Or um Andrew Marr. Even tweets by these people themselves. And that would er just be silly.

But then I remembered there's a fairly clear set of directions in the injunction Demon Internet got the court to approve way back in 2001, when they worried that one of their subscribers would break the court ban on revealing the new identity of Venables, one of the killers of Jamie Bulger.

An ISP shall not be in breach of the injunction unless it, or any of its employees or agents:

Knew that the material had been placed on its servers or could be accessed via its service, or

Knew that the material was likely to be placed on its servers or was likely to be accessed via its service, and, in either case

Failed to take all reasonable steps to prevent the publication."

Twitter isn't an ISP but the responsibility (and thus risk) seems similar or greater than a mere ISP. But what are "all reasonable steps"? Having a decent abuse policy? Providing the identity of alleged infringing tweeters on request? Providing it on court order? More? Yet more privatised filtering coming our way? Le sigh. (Hard to believe the ECJ would back that last though, the way SABAM seems to be going.)

But what I really ended up wanting to say wasn't a legal point but this quote which I found by an anonymous commenter at the end of one of the Guardian pieces.

The naming of celebrities still feels like a moral victory: as though we've usurped the rich and powerful. Celebrity superinjunctions annoy me not because of potential hypocrisy or controlling what I can and can't know (though those things do annoy me), but because it's wealth privilege on display. If I had an affair, and if for some reason the newspapers saw fit to print information about it, I wouldn't be able to get a superinjunction. I couldn't afford it.

So there you go. Superinjunctions, and their accompanying deconstruction and storm of comment, aren't about privacy vs freedom of expression. Or sex vs sensible journalism, tabloids vs broadsheets, the UK v the ECHR. or even the English High Court and Justice Eadie vs the Rest of the World. They're about power and the proletariat. Now can we go back to talking about stuff that matters, like jobs and health?

And why hasn't Wikileaks published that list of celebrities already anyway??

EDIT: Useful piece in OUT-LAW today about whether Tweeters could be done for contempt of court if accurately infringing outstanding injunctions cf @superinjunction.

One of the big issues is if a Tweeter as opposed to a media organisation would have had sufficient notice of the injunction, without actually having seen it or read it - Kim Walker thinks yes.

Another is anonymity - a Norwich Pharmacal order would work in UK, but will it work against Twitter whose HQ is in US? Walker thinks Twitter UK would request its US parent to seek a US order. Interesting - my own thought was that as with this case of the billionaire and allegedly libellous pseudonymous comments on Wikipedia, it would be up to the aggrieved celebrity to seek the US subpoena themselves. But again, seeking the ID itself, might be another of those "reasonable steps" Twitter as platform would have to take to ensure it was not itself in contempt?

An interesting point several commenters have brought up is that if a Twitter account is deliberately spreading false rumours the appropriate action would be not breach of confidence but libel, and that this would apply not just to the original accountholder but all the RTs. Litigation heaven beckons :) One wonders if the Jameel rules on abuse of process (previously used to restrain libel tourism) might not intervene here to stop the courts being flooded with thousands of Norwich Pharmacal orders...? (Note also that if the allegations were accurate, RTing would involve those who reweteeted as also breaching confidence - and yadda yadda, but more litigation hell..)

Return of the Robots! and Hay on Wye Festival!

Longtime readers of Pangloss may recall that last September I was momentarily rather obsessed with robot law and roboethics, having been kindly invited to an expert meeting on this topic by the EPSRC. In particular I gave you a sneak preview of my own version of the redesigned "Asimovs laws" as "Laws for Roboticists" which we worked on drawing up. The Scotsman also published a two page spread about this.

The full "committee" version of the new laws - expanded to five - have now been oficially published in New Scientist in a piece written by the marvellous Alan Winfield.

Alan writes on his blog:

"Well it's taken awhile, but the draft revised 'laws of robotics' have now been published. New Scientist article Roboethics for Humans, reporting on the EPSRC/AHRC initiative in roboethics, appears in this week's issue (Issue 2811, 7 May 2011). These new draft ethical principles are an outcome of the joint EPSRC/AHRC workshop to discuss ethical, legal and societal issues in robotics, last September.! ..

Asimov’s laws updated: instead of 'laws for robots' our revision is a set of five draft 'ethical principles for robotics', i.e. moral precepts for researchers, designers, manufacturers, suppliers and maintainers of robots. We propose:

1. Robots are multi-use tools. Robots should not be designed solely or primarily to kill or harm humans, except in the interests of national security.
2. Humans, not robots, are responsible agents. Robots should be designed & operated as far as is practicable to comply with existing laws and fundamental rights & freedoms, including privacy.
3. Robots are products. They should be designed using processes which assure their safety and security.
4. Robots are manufactured artefacts. They should not be designed in a deceptive way to exploit vulnerable users; instead their machine nature should be transparent.
5. The person with legal responsibility for a robot should be attributed."

These are of course very top level rules, needing interpretation in particular cases (just as the original laws did). Further commentary on these by the group (which I wrote a fair bit of, so like :) can be found here.

We emphasise that these are working documents, intended to inspire discussion not lay down immutable laws - comments here or elsewhere are very welcome.

This seems a good time to also announce that, slightly bizarrely, Pangloss is speaking on robots at HowTheLightGetsIn, the Hay-on-Wye Philosophy and Music Festival, which is a satellite to the famous literary festival! No, I'm not running the karaoke. I am part of the panel below for which I somehow suspect tickets are still available ( a snip at £6!)..

2.30pm Sat May 29th 2011

Rise of the Machines

Lilian Edwards, Peter Hacker, Hilary Lawson. Henrietta Moore chairs.

From 2001 to The Matrix, intelligent machines have played a central role in our fictions. But for half a century Artificial Intelligence research has been stalled. Now advances in robotics and language translation have put AI back on the agenda. But is AI possible or just a science fiction fantasy? And should we be excited or fearful at the prospect?

Eminent Oxford philosopher Peter Hacker, lawyer and technology guru Lilian Edwards and post-postmodernist Hilary Lawson imagine a future ruled by machines.

See you there! There's also Cory Doctorow, Susan Greenfield and Evgeny Morozow on that weekend and many more -- geek paradise!