From the excellent ORG people, go and sign here.
I am however quite tickled by this one.
Monday, November 20, 2006
Saturday, November 18, 2006
Here we go, here we go, here we go..
After months of anticipation, it's happening: Universal is suing MySpace, one of the leading "social networking" sites, for copyright infringement - or as the Beeb puts it:
"Universal's lawsuit, lodged in a US district court, claims that MySpace "encourages, facilitates and participates in the unauthorised reproduction, adaptation, distribution and public performance". "
Interesting that Universal's suit, as here quoted, does not mention the weasel word "inducement", as their attack must surely be based on MGM v Grokster and its new test for third party copyright infringement. My Space obviously know this since they reply:
""We provide users with tools to share their own work - we do not induce, encourage, or condone copyright violation in any way."
So draw up your seats, guys and gals, and watch the Titans fight.
In European law, MS might well claim that it had a good defense under the safe harbour of the E-Commerce Directive, as hosts under Art 14, so long as they removed copyright videos expeditiously on notice and take down (which, as a rule, such sites do).
In US law, however, it's much less clear and will depend how far the court wants to stretch the Grokster dictum. Two principles are going to come into full opposition for the first time: the Grokster dicta on inducement and third party liability for copyright, and the 'safe harbor' provisions of the US Digital Millennium Copyright Act, which are similar to Art 14 of the ECD, and which have been regarded in the past as adequately protecting the likes of YouTube and My Space from suits arising from copyright content posted by third parties. Napster, in the first of the major P2P cases way back when, attempted to plead the DMCA hosting safe harbor, but had it rejected on the grounds , in essence, that they were not a hands-off third party "host", since they were knowingly exerting control over the music files they indexed. My Space may be a much more difficult case for rejection, since they resemble a conventional host providing physical storage for files provided without their knowledge by a third party, just as with a hosting ISP, far more closely than Napster did.
The even bigger issue here may be : if MySpace goes down, what happens to the other blogging and user-content based sites like Bebo, FaceBook , Live Journal etc all of which depend to a lesser or larger extent on users sharing "cool" copyright material as well as self generated material? In particular, it will have huge implications for You Tube, where a copyright battle has been anticipated ever since Google bought it and made sure $200m of the price was put away as a "copyright warchest". Google are currently trying to head off the You Tube battle by negotiating with major publishers for permission to stream their works. For smaller or more "open source" sites like LiveJournal which run to cover costs and not to make money via ads, such a licensing arrangement would probably be uneconomic; which might lead to the folding of all but the most commercial and media-controlled blog/networking/web 2.0 user-content sites - a disastrous outcome.
One key point in YT's favour differentiating it from MYSpace et al is that YT streams its video, and does not host it, hence does not readily provide a free source of permament downloads: and has also, interestingly, made extensive efforts to suppress code provided by third parties to turn YT's stream into downloadable content. YT , unlike Napster and Grokster/KaZaa, has also gone out of its way to make clear it is not condoning copyright infringement as part of "sticking it to the man", hence resisting an obvious claim of inducement. Furthermore YT only allows very short videoes to be streamed, not entire TV programmes or albums as the P2P networks do - however it is also well known that some TV shows, eg, are in fact put up on YT in short chunks.
At root, there is a real problem here that may not be superable in the current legal structure. When Grokster was brought down, it was clear the court felt that its business model was mainly built on flagrantly delivering copyright content without rightsholder permission; even though it was shown Grokster was shown to be also used to deliver content like free software and out of copyright archive material, these were a relatively insignificant part of its payload (or business model).
With the web 2.0 sites, there is a spectrum. You Tube originally built its name on user generated and owned content : videos of cute cats on iPOds and art school degree exam animations. Yet now it clearly carries some, but perhaps not a majority , of "mainstream" media content used without permission of rightsholders among its millions of videos delivered today. Similarly My Space built its brand as the home for new and unsigned bands delivering their own copyright content; but now has a mixed business model. Universal claim "Our music and videos play a key role in building the communities that have created hundreds of millions of dollars of value for the owners of MySpace. " and they may not be exaggerating (well, not too much.)
Kill the baby of copyright infringement and you throw out the bathwater of the most popular medium for encouraging self created and owned creativity we have ever seen; MySpace has 90 million users alone and then look at all the other blogs, the Flickrs (and perhaps the eBays, where a similar problem prevails - among a million legitimate listings there will be a thousand for copyright infringing material). Notice and take down is one answer but it already exists in both the US and EU as a legal right and it is not satisfying the rightsholders, who want pre emptive blocking by the social sharing sites. Filtering for copyright material may be a better answer (as the Australian settlement compells KaZaa to do) but My Space were already developing tools to do this and yet it has not stopped this suit. What a US court could do is retreat from the "inducement" theory of Grokster and return to the "substantially non infringing uses" test of Sony: certainly My Space should attempt to push it that way.
Let's hope for all us blogger's sakes that an answer can be found that suits all parties. Simple defiance of the rightsholders by the anti-copyright crowd will not hold back the sea forever.
"Universal's lawsuit, lodged in a US district court, claims that MySpace "encourages, facilitates and participates in the unauthorised reproduction, adaptation, distribution and public performance". "
Interesting that Universal's suit, as here quoted, does not mention the weasel word "inducement", as their attack must surely be based on MGM v Grokster and its new test for third party copyright infringement. My Space obviously know this since they reply:
""We provide users with tools to share their own work - we do not induce, encourage, or condone copyright violation in any way."
So draw up your seats, guys and gals, and watch the Titans fight.
In European law, MS might well claim that it had a good defense under the safe harbour of the E-Commerce Directive, as hosts under Art 14, so long as they removed copyright videos expeditiously on notice and take down (which, as a rule, such sites do).
In US law, however, it's much less clear and will depend how far the court wants to stretch the Grokster dictum. Two principles are going to come into full opposition for the first time: the Grokster dicta on inducement and third party liability for copyright, and the 'safe harbor' provisions of the US Digital Millennium Copyright Act, which are similar to Art 14 of the ECD, and which have been regarded in the past as adequately protecting the likes of YouTube and My Space from suits arising from copyright content posted by third parties. Napster, in the first of the major P2P cases way back when, attempted to plead the DMCA hosting safe harbor, but had it rejected on the grounds , in essence, that they were not a hands-off third party "host", since they were knowingly exerting control over the music files they indexed. My Space may be a much more difficult case for rejection, since they resemble a conventional host providing physical storage for files provided without their knowledge by a third party, just as with a hosting ISP, far more closely than Napster did.
The even bigger issue here may be : if MySpace goes down, what happens to the other blogging and user-content based sites like Bebo, FaceBook , Live Journal etc all of which depend to a lesser or larger extent on users sharing "cool" copyright material as well as self generated material? In particular, it will have huge implications for You Tube, where a copyright battle has been anticipated ever since Google bought it and made sure $200m of the price was put away as a "copyright warchest". Google are currently trying to head off the You Tube battle by negotiating with major publishers for permission to stream their works. For smaller or more "open source" sites like LiveJournal which run to cover costs and not to make money via ads, such a licensing arrangement would probably be uneconomic; which might lead to the folding of all but the most commercial and media-controlled blog/networking/web 2.0 user-content sites - a disastrous outcome.
One key point in YT's favour differentiating it from MYSpace et al is that YT streams its video, and does not host it, hence does not readily provide a free source of permament downloads: and has also, interestingly, made extensive efforts to suppress code provided by third parties to turn YT's stream into downloadable content. YT , unlike Napster and Grokster/KaZaa, has also gone out of its way to make clear it is not condoning copyright infringement as part of "sticking it to the man", hence resisting an obvious claim of inducement. Furthermore YT only allows very short videoes to be streamed, not entire TV programmes or albums as the P2P networks do - however it is also well known that some TV shows, eg, are in fact put up on YT in short chunks.
At root, there is a real problem here that may not be superable in the current legal structure. When Grokster was brought down, it was clear the court felt that its business model was mainly built on flagrantly delivering copyright content without rightsholder permission; even though it was shown Grokster was shown to be also used to deliver content like free software and out of copyright archive material, these were a relatively insignificant part of its payload (or business model).
With the web 2.0 sites, there is a spectrum. You Tube originally built its name on user generated and owned content : videos of cute cats on iPOds and art school degree exam animations. Yet now it clearly carries some, but perhaps not a majority , of "mainstream" media content used without permission of rightsholders among its millions of videos delivered today. Similarly My Space built its brand as the home for new and unsigned bands delivering their own copyright content; but now has a mixed business model. Universal claim "Our music and videos play a key role in building the communities that have created hundreds of millions of dollars of value for the owners of MySpace. " and they may not be exaggerating (well, not too much.)
Kill the baby of copyright infringement and you throw out the bathwater of the most popular medium for encouraging self created and owned creativity we have ever seen; MySpace has 90 million users alone and then look at all the other blogs, the Flickrs (and perhaps the eBays, where a similar problem prevails - among a million legitimate listings there will be a thousand for copyright infringing material). Notice and take down is one answer but it already exists in both the US and EU as a legal right and it is not satisfying the rightsholders, who want pre emptive blocking by the social sharing sites. Filtering for copyright material may be a better answer (as the Australian settlement compells KaZaa to do) but My Space were already developing tools to do this and yet it has not stopped this suit. What a US court could do is retreat from the "inducement" theory of Grokster and return to the "substantially non infringing uses" test of Sony: certainly My Space should attempt to push it that way.
Let's hope for all us blogger's sakes that an answer can be found that suits all parties. Simple defiance of the rightsholders by the anti-copyright crowd will not hold back the sea forever.
Tuesday, November 14, 2006
Where I've Been and Hello I'm Back
For everyone who's written in the last three months to ask where I've gone: the answer was in order:
- recovering from GikII - which was generally judged a huge succes (ahem) and which I now need to think about in terms of what we do next: a mailing list, a book on geek law and a second workshop all seem likely.
- moving job
- moving house
- moving cats (ah if only I had time to do an IPKat like cartoon here of a sad fat tabby hiding doggedly under the bath...)
and then, just when you thought it was safe to go back into the blogging water..
- Blogger sundered me from my very own Pangloss, gave it briefly to Technollama and then refused to give me it back AT ALL. I think I broke Blogger :(
But here I am restored!! (On the third try ..) And overwhelmed with London events, not quite all of which I am or have spoken at..
No rest for the wicked huh?
All this and Law 2.1 rrrepeater to come :)
- recovering from GikII - which was generally judged a huge succes (ahem) and which I now need to think about in terms of what we do next: a mailing list, a book on geek law and a second workshop all seem likely.
- moving job
- moving house
- moving cats (ah if only I had time to do an IPKat like cartoon here of a sad fat tabby hiding doggedly under the bath...)
and then, just when you thought it was safe to go back into the blogging water..
- Blogger sundered me from my very own Pangloss, gave it briefly to Technollama and then refused to give me it back AT ALL. I think I broke Blogger :(
But here I am restored!! (On the third try ..) And overwhelmed with London events, not quite all of which I am or have spoken at..
- I spoke spoke on spam at the very intriguing SCL Workshop on Regulation (patiently organised by my mate Andy Charlesworth of Bristol);
- attended the DTI/KTN workshop on locational data service providers - which was fascinating.
- and spoke on legal and policy aspects of denial of service at the DDOS/DTI Workshop , ably assisted by Chris Marsden of RAND. This gig was beautifully timed: 5 days after the Police and Justice Act 2006 , which amends the Computer Misuse Act 1990 to cover DDOS, had just seen Royal Assent (Thanks to Malcolm Hutty from LINX for this intelligence - altho it's not yet up as a finalised Act on the Web - watch this space).
A proper post to come on the amendments, which combined with the appeal decision in Lennon, appear to me to make it potentially possible to prosecute everything from supplying adware, to spamming, now as violations of s 3, punishable by up to 10 years in jail. Is this a sneaky one by the Information Commissioner to avoid the need to put up the penalties for breaches of the Data Protection Act? Perhaps we shall see.
- I also made it rather late and worse for wear :) to the ORG Release the Music extravaganza, with Jonathan Zittrain, someone from Blur (the drummer, I'm told) and my Soton colleague Caroline Wilson.
- I am also now happy and proud to be part of the ORG Advisory Board - and I'm thinking of going to the mass geek Christmas party (although unlike some I don't expect to find John Barrowman there.)
No rest for the wicked huh?
All this and Law 2.1 rrrepeater to come :)
Thursday, November 09, 2006
Hurrahh!!!
For everyone who's written to ask where I've gone: the answer was in order
- moving job
- moving house
- moving cats (ah if only I had time to do an IPKat like cartoon here of a sad fat tabby hiding doggedly under the bath...)
and then, just when you thought it was safe to go back into the blogging water..
- Blogger sundered me from my very own Pangloss, gave it briefly to Technollama and then refused to give me it back AT ALL. I think I broke Blogger :(
But here I am restored!! And overwhelmed with london evenst, not quite all of which I am speaking at.. Too late to tell you to look out for me speaking on spam at the very intriguing SCL Workshop on Regulation (patiently by my mate Andy Charlesworth of Bristol); too late to find me at DTI/KTN worhshop on locational data service providers - which was fascinating.
But you can still look for me at the Police and Justice Act 2006 have just seen Royal Assent (Thanks to Malcolm Hutty from LINX for this intelligence - altho it's not yet up as a finalised Act on the Web - watch this space); and at the ORG Release the Music extravaganza that night, hopefully bopping the night away at the DJ set with Jonathan Zittrain, someone from Blur and my Soton colleague Caroline Wilson. (Come and watch the geeks at play!) Then it's the Tripartite Response To Terror day, and the ORG Advisory Board which I am now proud to grace.
No rest for the wicked huh?
All this and Law 2.0 to come :)
- moving job
- moving house
- moving cats (ah if only I had time to do an IPKat like cartoon here of a sad fat tabby hiding doggedly under the bath...)
and then, just when you thought it was safe to go back into the blogging water..
- Blogger sundered me from my very own Pangloss, gave it briefly to Technollama and then refused to give me it back AT ALL. I think I broke Blogger :(
But here I am restored!! And overwhelmed with london evenst, not quite all of which I am speaking at.. Too late to tell you to look out for me speaking on spam at the very intriguing SCL Workshop on Regulation (patiently by my mate Andy Charlesworth of Bristol); too late to find me at DTI/KTN worhshop on locational data service providers - which was fascinating.
But you can still look for me at the Police and Justice Act 2006 have just seen Royal Assent (Thanks to Malcolm Hutty from LINX for this intelligence - altho it's not yet up as a finalised Act on the Web - watch this space); and at the ORG Release the Music extravaganza that night, hopefully bopping the night away at the DJ set with Jonathan Zittrain, someone from Blur and my Soton colleague Caroline Wilson. (Come and watch the geeks at play!) Then it's the Tripartite Response To Terror day, and the ORG Advisory Board which I am now proud to grace.
No rest for the wicked huh?
All this and Law 2.0 to come :)
Monday, July 31, 2006
GikII programme
The programme for GikII is now finalised. However if you're interested in attending, a very limited number of places are available for a nominal £25 to cover costs. feel free to pass this on. I'm really looking forward to it :-)
Friday, July 28, 2006
Perceptive Peers Go Pervasive, Persuasively
The House of Lords debates pervasive computing. As IdentityBlog comments. an unelected second House may seem like an anchronism, but the standard of debate is invariably higgher, especially on specialised technical topics, than in the Commons. Note the concern not just for privacy generally, but also for whether the Data Protection Act applies, for patient rights, and for environmental damage.
Thursday, July 27, 2006
MySpace Caves
From Boing Boing
Billy Bragg's highly publicized campaign against MySpace's crummy, grabby terms of service has been successful. MySpace has revised its terms so that musicians who upload to the site retain control of their works, and MySpace/NewsCorp/Fox can't sell those songs without contracting with the musicians.
Bragg now declares:
"Now that the popularity of downloading has made physical manufacturing and distribution no longer necessary, the next generation of artists will not need to surrender all of their rights in order to get their music into the marketplace. It is therefore crucial that they understand, from the moment that they first post music on the internet, the importance of retaining their long term right to exploit the material that they create. This is doubly important on a networking site where many of the songs posted will be by unsigned artists. Ownership of the rights to such material is somewhat ambiguous. Thats why I hope that the groundbreaking decision of MySpace to come down on the side of the artists rights will be followed throughout the industry.
I also welcome the new wording of the terms and conditions in which MySpace clarify exactly why they require specific rights and how they intend to use them. Again, I hope more sites follow the lead of MySpace in ensuring the use of clear and transparent language in contracts. The last thing any of us wants to see is a situation in which everyone posting a song on the site has to have a lawyer sitting next to them. "
Interesting. MySpace is of course very vulnerable to anti-PR stirred up by a well known musician since its USP is that every wannabee band in the world as their home page there. I wonder if YouTube will follow suit? YT's conditions have been criticised for potentially grabbing rights to all amateur videos posted there. (Google Videos' are similarly ambiguous.)
Billy Bragg's highly publicized campaign against MySpace's crummy, grabby terms of service has been successful. MySpace has revised its terms so that musicians who upload to the site retain control of their works, and MySpace/NewsCorp/Fox can't sell those songs without contracting with the musicians.
Bragg now declares:
"Now that the popularity of downloading has made physical manufacturing and distribution no longer necessary, the next generation of artists will not need to surrender all of their rights in order to get their music into the marketplace. It is therefore crucial that they understand, from the moment that they first post music on the internet, the importance of retaining their long term right to exploit the material that they create. This is doubly important on a networking site where many of the songs posted will be by unsigned artists. Ownership of the rights to such material is somewhat ambiguous. Thats why I hope that the groundbreaking decision of MySpace to come down on the side of the artists rights will be followed throughout the industry.
I also welcome the new wording of the terms and conditions in which MySpace clarify exactly why they require specific rights and how they intend to use them. Again, I hope more sites follow the lead of MySpace in ensuring the use of clear and transparent language in contracts. The last thing any of us wants to see is a situation in which everyone posting a song on the site has to have a lawyer sitting next to them. "
Interesting. MySpace is of course very vulnerable to anti-PR stirred up by a well known musician since its USP is that every wannabee band in the world as their home page there. I wonder if YouTube will follow suit? YT's conditions have been criticised for potentially grabbing rights to all amateur videos posted there. (Google Videos' are similarly ambiguous.)
Thursday, July 20, 2006
More Fun with Ted and Alice but not the BPI
Not a great week for ISPs what with the BPI/Tiscali spat and this.
Also from OUT-Law :
"A music industry coalition has proposed that ISPs and others should pay a licence fee to compensate rights-holders for unlawful file-sharing by their customers. One critic called the plans, which would change copyright laws, "ill-conceived and grasping."
The group met in London yesterday. It did not represent the entire UK industry – notably, the BPI was not in attendance. But nearly 1,000 independent record companies and 50,000 songwriters, composers and music publishers were represented.
.. the groups represented yesterday do not want to target the individuals who infringe copyright in this way. Instead, they want to target the intermediaries. According to a joint statement issued after yesterday's meeting, ISPs, mobile companies and device manufacturers "profit extensively and reap wider value from the unauthorised distribution of music whilst being protected from liability by a series of legal immunities and safe harbours." There were no ISPs in attendance at the meeting."
So, the return of the ISPs' "dirty little secret", the idea that ISPs profit indirectly from downloading and therefore condone it (even though most broadband contracts are now flat rate rather than per MB). Somehow I can't see this one catching on with the UK Govt right now though. If ISPs got taxed for profiting from downloading and uploading, why they might stop co-operating with the IWF (and the police) in stopping access to child porn. Which voters like a lot less than they do the odd downloader.
My I'm cynical tonight.
Less obviously, ISPs already do quite often disconnect or at least cap the accounts of conspicuous bandwidth hogs. This doesn't give royalties back to the musicians but it does more quietly contribute to the control of filesharing in the UK, probably to quite a large extent.
Also from OUT-Law :
"A music industry coalition has proposed that ISPs and others should pay a licence fee to compensate rights-holders for unlawful file-sharing by their customers. One critic called the plans, which would change copyright laws, "ill-conceived and grasping."
The group met in London yesterday. It did not represent the entire UK industry – notably, the BPI was not in attendance. But nearly 1,000 independent record companies and 50,000 songwriters, composers and music publishers were represented.
.. the groups represented yesterday do not want to target the individuals who infringe copyright in this way. Instead, they want to target the intermediaries. According to a joint statement issued after yesterday's meeting, ISPs, mobile companies and device manufacturers "profit extensively and reap wider value from the unauthorised distribution of music whilst being protected from liability by a series of legal immunities and safe harbours." There were no ISPs in attendance at the meeting."
So, the return of the ISPs' "dirty little secret", the idea that ISPs profit indirectly from downloading and therefore condone it (even though most broadband contracts are now flat rate rather than per MB). Somehow I can't see this one catching on with the UK Govt right now though. If ISPs got taxed for profiting from downloading and uploading, why they might stop co-operating with the IWF (and the police) in stopping access to child porn. Which voters like a lot less than they do the odd downloader.
My I'm cynical tonight.
Less obviously, ISPs already do quite often disconnect or at least cap the accounts of conspicuous bandwidth hogs. This doesn't give royalties back to the musicians but it does more quietly contribute to the control of filesharing in the UK, probably to quite a large extent.
I KNow What You Did Last summer
.. well actually your credit card does. And your bank.
OUT-Law report that:
"New powers to allow banks and building societies to remove the credit cards of customers cautioned for or convicted of buying indecent images of children online were agreed in Parliament on Tuesday.
The Data Protection (Processing of sensitive personal data) Order of 2006 amends the Data Protection Act of 1998 to allow card issuers to process sensitive personal data provided to them by law enforcement authorities so that they can withdraw the card used to commit the offence.
The order results from collaboration between the Department for Constitutional Affairs, the Association for Payment Clearing Services (APACS), the Child Exploitation and Online Protection Centre (CEOP), law enforcement agencies, children's charities and the Home Office."
The OUT_LAW team have already objected to this rule, and you can see why. The breach of privacy might be justified if it achieved anything, but withdrawing one credit card? I can sign up for 4 tomorrow using the junk mail and email offers I get everyday - and get more Air MIles while I'm at it :-)
So if you're in a conspiracy mood,what are we being softened up for here? When will we see credit card details of those who pay for other, less heinous things, passed on to the issuers? On line gambling anyone? Or payments to AllofMP3.com??
And when will these factors be taken into acount in credit scoring for getting MORE credit cards?
So there you have it: this is either a very silly law, or a very clever one..
OUT-Law report that:
"New powers to allow banks and building societies to remove the credit cards of customers cautioned for or convicted of buying indecent images of children online were agreed in Parliament on Tuesday.
The Data Protection (Processing of sensitive personal data) Order of 2006 amends the Data Protection Act of 1998 to allow card issuers to process sensitive personal data provided to them by law enforcement authorities so that they can withdraw the card used to commit the offence.
The order results from collaboration between the Department for Constitutional Affairs, the Association for Payment Clearing Services (APACS), the Child Exploitation and Online Protection Centre (CEOP), law enforcement agencies, children's charities and the Home Office."
The OUT_LAW team have already objected to this rule, and you can see why. The breach of privacy might be justified if it achieved anything, but withdrawing one credit card? I can sign up for 4 tomorrow using the junk mail and email offers I get everyday - and get more Air MIles while I'm at it :-)
So if you're in a conspiracy mood,what are we being softened up for here? When will we see credit card details of those who pay for other, less heinous things, passed on to the issuers? On line gambling anyone? Or payments to AllofMP3.com??
And when will these factors be taken into acount in credit scoring for getting MORE credit cards?
So there you have it: this is either a very silly law, or a very clever one..
Uber-Code
From the Cyberprof mailing list : Microsoft's academic outreach officer has anounced that Microsft are adopting "Windows principles" for the future:
"Microsoft's new, voluntary "Windows principles."
The principles were announced today in a speech in DC by Brad Smith (Microsoft's general counsel). It is worth noting that they will apply to development of Windows Vista, and will continue to apply after major parts of the antitrust consent decree expire in November 2007.
The principles are divided into the following three general categories:
· Choice for Computer Manufacturers and Customers. Microsoft is committed to designing Windows and licensing it on contractual terms so as to make it easy to install non-Microsoft® programs and to configure Windows-based PCs to use non-Microsoft programs instead of or in addition to Windows features.
· Opportunity for Developers. Microsoft is committed to designing and licensing Windows (and all the parts of the Windows platform) on terms that create and preserve opportunities for applications developers and Web site creators to build innovative products on the Windows platform — including products that directly compete with Microsoft's own products
. Interoperability for Users. Microsoft is committed to meeting customer interoperability needs and will do so in ways that enable customers to control their data and exchange information securely and reliably across diverse computer systems and applications.
I encourage you, if you are so inclined, to write about, blog about, or otherwise distribute your thoughts on the speech and the principles. Please feel free to contact me with questions or comments."
Whatever you think of both M$ and the above, (and cynically, the obvious thing to think is that M$ has just been smacked with a wacking great fine by the EU for failing to do some of or all of the above) this is an interesting deveopment.
Ever since Lessig kicked it all off, academics have talked about using some kind of set of principles to govern the creation of code by non-legislative coders. This is the first example I've seen of something more detailed than "Do no evil". Any other suggestions?
"Microsoft's new, voluntary "Windows principles."
The principles were announced today in a speech in DC by Brad Smith (Microsoft's general counsel). It is worth noting that they will apply to development of Windows Vista, and will continue to apply after major parts of the antitrust consent decree expire in November 2007.
The principles are divided into the following three general categories:
· Choice for Computer Manufacturers and Customers. Microsoft is committed to designing Windows and licensing it on contractual terms so as to make it easy to install non-Microsoft® programs and to configure Windows-based PCs to use non-Microsoft programs instead of or in addition to Windows features.
· Opportunity for Developers. Microsoft is committed to designing and licensing Windows (and all the parts of the Windows platform) on terms that create and preserve opportunities for applications developers and Web site creators to build innovative products on the Windows platform — including products that directly compete with Microsoft's own products
. Interoperability for Users. Microsoft is committed to meeting customer interoperability needs and will do so in ways that enable customers to control their data and exchange information securely and reliably across diverse computer systems and applications.
I encourage you, if you are so inclined, to write about, blog about, or otherwise distribute your thoughts on the speech and the principles. Please feel free to contact me with questions or comments."
Whatever you think of both M$ and the above, (and cynically, the obvious thing to think is that M$ has just been smacked with a wacking great fine by the EU for failing to do some of or all of the above) this is an interesting deveopment.
Ever since Lessig kicked it all off, academics have talked about using some kind of set of principles to govern the creation of code by non-legislative coders. This is the first example I've seen of something more detailed than "Do no evil". Any other suggestions?
Tuesday, July 18, 2006
YouTube Goes Down the Tube (Not?)
As most the blogverse has noted, a certain Mr Tur, owner of Los Angeles News Service, is suing YouTube, the free and very popular video hosting site, for hosting a video he claims infringes his copyright.
While YouTube is perhaps best known for hosting user's own home vids (like the famous cat and Apple Powerbook video) it is also well known to host copyright material that fans or critics choose to upload - eg you can find the concluding segments of both the recent Dr Who and Green Wing series there. You can also find a middle ground of fan/user "mash ups" - songvids and the like - eg a very amusing parody of the end of that self same Dr Who series.
But YouTube is a host, not a P2P intermediary and so, oddly, it has the law on its side. The Digital Millennium Copyright Act provides that hosts who have no knowledge of hosting copyright infringing materail are immune from liability for it, as long as they respond to notices for take-down delivered in the style approved by the DMCA. (Furthermore, and even better, YouTube are protected from an action by a disgruntled user if they do so take down in good faith.) Nor is this just a USA oddity - the EC E Commerce Directive has a very similar regime for hosts in Art 14 of that instrument. (It's that provision that allows eBay in Europe, as previously discussed here, to get away with hosting trademark infringing goods so long as it removes them on notice, and expediently.)
These laws were drafted in the late 90s, before the P2P revolution but after the beginning of the dot.com boom, to protect ISPs , so as to encourage ISPs to collaborate with both the music industry and other such industry bodies in taking down pirate material on an NTD basis. Before they were introduced, following the late unlamented Prodigy case, ISPs were scared that if they touched illegal content, even to monitor or it or remove it, they immediately became liable for that content themselves.
But the amusing thing, now, in 2006, is that YouTube in many ways looks way more like (non legal) Napster than AOL or CompuServe. It's used extensively by a very large number of users to download pirate copies (c 100 million videos served per week, according to Technollama, of which a large number must be infringing), It's a free service, which makes its money on ads. And it has that cool , anti-the-man chic about it.
But because YouTube only hosts material provided by third parties, and doesn't put up its own materials (as MP3.com did), it's protected by the DMCA and ECD safe harbors. (Unless a US or European court can be convinced that it had "constructive" notice of illegality - ie it should have known what was going on or as the DMCA and ECD put it, was "aware of facts or circumstances from which infringing activity is apparent" - which is not altogether impossible but perhaps unlikely.) While the Napsters of this world fell foul of secondary copyright infringement, because their central database pointed at illegal copies hosted by other users. They didn't get the benefit of the DMCA because they weren't seen as a host who could respond to NTD notices and were aware of infringing activity. This seems, in retrospect, mildly curious.
As for a Grokster analysis - as Technollama also points out, it's hard to argue that YouTube "induced" copyright infringement. Their site unlike Grokster's is free of anti-copyright rhetoric and their ToS are impeccable (not that that helped Grokster!) - plus YouTube can calmly say the site was mainly set up to allow users to host their own amateur copyright material, and , I think, prove it.
So this one looks like a no-brainer.
So what if YouTube was serving, not videos, but pithy quips from popular novels, and acute chapters of contemporary academic works? Would the scenario be the same? What, in other words, if it was Google Library slightly differently conceived? Is this a way forward?
EDIT: Chris Marsden helpfully points out that You Tube merely streams video, and does not enable actual download - this of course makes it look far less like Napster/Grokster etc.
While YouTube is perhaps best known for hosting user's own home vids (like the famous cat and Apple Powerbook video) it is also well known to host copyright material that fans or critics choose to upload - eg you can find the concluding segments of both the recent Dr Who and Green Wing series there. You can also find a middle ground of fan/user "mash ups" - songvids and the like - eg a very amusing parody of the end of that self same Dr Who series.
But YouTube is a host, not a P2P intermediary and so, oddly, it has the law on its side. The Digital Millennium Copyright Act provides that hosts who have no knowledge of hosting copyright infringing materail are immune from liability for it, as long as they respond to notices for take-down delivered in the style approved by the DMCA. (Furthermore, and even better, YouTube are protected from an action by a disgruntled user if they do so take down in good faith.) Nor is this just a USA oddity - the EC E Commerce Directive has a very similar regime for hosts in Art 14 of that instrument. (It's that provision that allows eBay in Europe, as previously discussed here, to get away with hosting trademark infringing goods so long as it removes them on notice, and expediently.)
These laws were drafted in the late 90s, before the P2P revolution but after the beginning of the dot.com boom, to protect ISPs , so as to encourage ISPs to collaborate with both the music industry and other such industry bodies in taking down pirate material on an NTD basis. Before they were introduced, following the late unlamented Prodigy case, ISPs were scared that if they touched illegal content, even to monitor or it or remove it, they immediately became liable for that content themselves.
But the amusing thing, now, in 2006, is that YouTube in many ways looks way more like (non legal) Napster than AOL or CompuServe. It's used extensively by a very large number of users to download pirate copies (c 100 million videos served per week, according to Technollama, of which a large number must be infringing), It's a free service, which makes its money on ads. And it has that cool , anti-the-man chic about it.
But because YouTube only hosts material provided by third parties, and doesn't put up its own materials (as MP3.com did), it's protected by the DMCA and ECD safe harbors. (Unless a US or European court can be convinced that it had "constructive" notice of illegality - ie it should have known what was going on or as the DMCA and ECD put it, was "aware of facts or circumstances from which infringing activity is apparent" - which is not altogether impossible but perhaps unlikely.) While the Napsters of this world fell foul of secondary copyright infringement, because their central database pointed at illegal copies hosted by other users. They didn't get the benefit of the DMCA because they weren't seen as a host who could respond to NTD notices and were aware of infringing activity. This seems, in retrospect, mildly curious.
As for a Grokster analysis - as Technollama also points out, it's hard to argue that YouTube "induced" copyright infringement. Their site unlike Grokster's is free of anti-copyright rhetoric and their ToS are impeccable (not that that helped Grokster!) - plus YouTube can calmly say the site was mainly set up to allow users to host their own amateur copyright material, and , I think, prove it.
So this one looks like a no-brainer.
So what if YouTube was serving, not videos, but pithy quips from popular novels, and acute chapters of contemporary academic works? Would the scenario be the same? What, in other words, if it was Google Library slightly differently conceived? Is this a way forward?
EDIT: Chris Marsden helpfully points out that You Tube merely streams video, and does not enable actual download - this of course makes it look far less like Napster/Grokster etc.
Thursday, July 13, 2006
Google regulation in Germany?
One idea that's been discussed and repelled here before is that search engines are important actors in cyberspace and that Google has in some markets a dominant position - does this mean therefore that it should have legal duties to the public eg, not to censor, or to list all sites, or to ue a certain algorithm for listing?
A German search engine conference has some interesting recent comments.(via The Register)
"German experts at a Berlin seminar this week argued that search engines need to be more regulated. They want companies such as Google, Microsoft, and Yahoo! to exercise editorial control over their search results and filter out sites with x-rated content or that glorify aggression.
"Mechanisms have to be developed to deal with illegal content and to protect children online," Marcel Machill, a lecturer in journalism at Germany's Leipzig and Dortmund universities, told the Search Engine Workshop run by the Friedrich Ebert Foundation this week."
Google and other search engines can however argue that they offer a safe search option voluntarily - though of course this can be turned off by the user. And it is well known that Google already do block listings which violate local law in (at least) China, France and Germany. But another speaker argued that a "voluntary obligation" is nothing more than a "weak regulation without any sanctions".
More interestingly perhaps though -
"Machill is also clearly troubled by the strong market position of some of the search engines. Google already accounts for 90 per cent of German web searches. In the classic media sector this kind of concentration would be absurd, he says.
"It is important not to let this power develop unnoticed." Machill hopes that Germany will establish a public corporation to build its own search engine with "editorial responsibility" to compete with Google."
Building a national search engine will be a preferable response to regulation of the private sector for many economists and regulators. But national attempts to build search engines (a French effort was documented here a while back) seem inevitably to lag behind market driven efforts Vive la capitalisme!
A German search engine conference has some interesting recent comments.(via The Register)
"German experts at a Berlin seminar this week argued that search engines need to be more regulated. They want companies such as Google, Microsoft, and Yahoo! to exercise editorial control over their search results and filter out sites with x-rated content or that glorify aggression.
"Mechanisms have to be developed to deal with illegal content and to protect children online," Marcel Machill, a lecturer in journalism at Germany's Leipzig and Dortmund universities, told the Search Engine Workshop run by the Friedrich Ebert Foundation this week."
Google and other search engines can however argue that they offer a safe search option voluntarily - though of course this can be turned off by the user. And it is well known that Google already do block listings which violate local law in (at least) China, France and Germany. But another speaker argued that a "voluntary obligation" is nothing more than a "weak regulation without any sanctions".
More interestingly perhaps though -
"Machill is also clearly troubled by the strong market position of some of the search engines. Google already accounts for 90 per cent of German web searches. In the classic media sector this kind of concentration would be absurd, he says.
"It is important not to let this power develop unnoticed." Machill hopes that Germany will establish a public corporation to build its own search engine with "editorial responsibility" to compete with Google."
Building a national search engine will be a preferable response to regulation of the private sector for many economists and regulators. But national attempts to build search engines (a French effort was documented here a while back) seem inevitably to lag behind market driven efforts Vive la capitalisme!
Tuesday, July 11, 2006
The ISP Strikes Back
Further to this post, one of the ISPs involved, Tiscali has now refused to comply with what Cory Doctorow has neatly christened notice-and-disconnection.
This is very interesting too. As Cory points out, when the device used by the rightsholder organisations like the BPI was notice-and-takedown, the economics were in favour of going along with it; it is cheaper and easier to take down content, than to get involved in possible legal proceedings. But it costs far far more to connect a paying customer up to the Internet; so the economics work the other way, for holding fast. This happens also to favour what might be seen as the civil society position, ie, that those accused of copyright violation deserve trial by due process before being presumed guilty on the BPI's say-so, and thrown off the Net. But digital rights are probably not the major motivation driving Tiscali's stance.
Nonethless this is a cheering development.
NIcely put summary from Tiscali's letter: "It is not for Tiscali, as an ISP, nor the BPI, as a trade association, to effectively act as a regulator or law enforcement agency and deny individuals theright to defend themselves against the allegations made against them."
This is very interesting too. As Cory points out, when the device used by the rightsholder organisations like the BPI was notice-and-takedown, the economics were in favour of going along with it; it is cheaper and easier to take down content, than to get involved in possible legal proceedings. But it costs far far more to connect a paying customer up to the Internet; so the economics work the other way, for holding fast. This happens also to favour what might be seen as the civil society position, ie, that those accused of copyright violation deserve trial by due process before being presumed guilty on the BPI's say-so, and thrown off the Net. But digital rights are probably not the major motivation driving Tiscali's stance.
Nonethless this is a cheering development.
NIcely put summary from Tiscali's letter: "It is not for Tiscali, as an ISP, nor the BPI, as a trade association, to effectively act as a regulator or law enforcement agency and deny individuals theright to defend themselves against the allegations made against them."
The New Statesman, on Living in the Silicon Cul de Sac
I love it:the New Statesman on why the UK Digerati are never going to be as sexy as their US counterparts (and look, ma, ORG has Americans in it too! shoot at will! hi , Jordan :-)
"[Cory} Doctorow leaves in his wake a newly formed UK advocacy team, the Open Rights Group. But there is one lingering question: why does Britain need "outreach" from North America when it comes to campaigning for digital rights? After all, it was a British man who invented the worldwide web. Why, when the US gets Silicon Valley with all its alt:latte cool and laptop-toting liberalism, are we stuck with the Silicon Corridor, nestled in the UK's debt heartland, Reading?
.. We British don't like to brag about it, but this country is still a home for some of the world's best open-source coders - Ben Laurie, who coded the security software that deals with most credit card transactions online, and Alan Cox, until recently second lieutenant in coding and maintaining a core part of the open-source operating system Linux, among others. So it seems silly that we should need help from the US to keep the digital future fair.
The truth is, it's the politics that keeps digital-rights campaigning so unsexy on this side of the Atlantic. In America, lawyers such as Lawrence Lessig can swan in and out of the Supreme Court at leisure, filing suits against the state for offences to free speech with the help of the good old US constitution. In Britain, we have to rely on legislation from Brussels. There have been significant victories on digital-rights issues in Europe, most notably the European Parliament's decision to reject the idea of extending patent law to cover software code and business models. But the lack of understanding about Europe's political processes and values makes campaigning on digital rights that much harder. "
Leaving aside the small matter that the European Convention on Human Rights is NOT legislation from Brussels, actually I think the problem is that we Brits just can't make grand statements with a straight face the way the Americans can. We haven't got the evangelical upbringing, the oral rhetoric of US culture. We're far less likely to be found saying things like "Digital rights are essential if we are to avoid being the DRM-ed slaves of the next Microserf generation" and more "That last episode of Dr Who last night was good wasn't it? Now, how about a cuppa, and er, about this ID cards business.."
(via Ben Lauries's blog)
"[Cory} Doctorow leaves in his wake a newly formed UK advocacy team, the Open Rights Group. But there is one lingering question: why does Britain need "outreach" from North America when it comes to campaigning for digital rights? After all, it was a British man who invented the worldwide web. Why, when the US gets Silicon Valley with all its alt:latte cool and laptop-toting liberalism, are we stuck with the Silicon Corridor, nestled in the UK's debt heartland, Reading?
.. We British don't like to brag about it, but this country is still a home for some of the world's best open-source coders - Ben Laurie, who coded the security software that deals with most credit card transactions online, and Alan Cox, until recently second lieutenant in coding and maintaining a core part of the open-source operating system Linux, among others. So it seems silly that we should need help from the US to keep the digital future fair.
The truth is, it's the politics that keeps digital-rights campaigning so unsexy on this side of the Atlantic. In America, lawyers such as Lawrence Lessig can swan in and out of the Supreme Court at leisure, filing suits against the state for offences to free speech with the help of the good old US constitution. In Britain, we have to rely on legislation from Brussels. There have been significant victories on digital-rights issues in Europe, most notably the European Parliament's decision to reject the idea of extending patent law to cover software code and business models. But the lack of understanding about Europe's political processes and values makes campaigning on digital rights that much harder. "
Leaving aside the small matter that the European Convention on Human Rights is NOT legislation from Brussels, actually I think the problem is that we Brits just can't make grand statements with a straight face the way the Americans can. We haven't got the evangelical upbringing, the oral rhetoric of US culture. We're far less likely to be found saying things like "Digital rights are essential if we are to avoid being the DRM-ed slaves of the next Microserf generation" and more "That last episode of Dr Who last night was good wasn't it? Now, how about a cuppa, and er, about this ID cards business.."
(via Ben Lauries's blog)
Don't shoot the messenger, use him to send a message back?
Fascianting stuff about the role of ISPs in the fight against file sharing, via ars technica:
"Stepping up its campaign against illicit file-swappers, the British Phonographic Industry (BPI) has moved from targeting individual users to putting pressure on their ISPs. The BPI has just announced that 59 accounts suspected of large-scale piracy have been reported to two ISPs, which are expected to deal with the issue. 17 requests went to Tiscali, while another 42 were sent to Cable & Wireless.
The ISPs offer no guarantee that anything will be done, but the BPI wants to move faster against suspected file-swappers than is possible in the court system. They also want to paint the ISPs as complicit with the swapping through their own inaction. As they put it, "While the BPI retains the right to pursue cases against individual uploaders, the move against ISPs who have so far failed to take effective steps to stop illegal filesharing marks a significant development in the BPI campaign—allowing the record industry to deal with a greater volume of cases more quickly and efficiently." "
Oh how interesting. What's the legal position if the ISP doesn't do anything? or to put it another way, is there more than an arguable ethical duty on the ISP to investigate and taken its own action against the alleged filesharers?
Well, if the ISP gets told often enough that it has filesharers on its network (with dates and filenames and megs uploaded etc etc), and doesn't take steps to remove them, could it have constructive knowledge of illegal activity, and could it thus lose the benefit of the general ISP immunity defnce under the E-Commerce Directive Regulations? This is much the same kind of argument I toyed with making against eBay some while back.
Of course, before an ISP could even be potentially liable in civil damages, if not in criminal law, theer would have to be liablity under copyright law. Could an ISP that gets told off often enough for harbouring fileshareres be "authorising" or "inducing" copyright violation, as was successfully argued against KaZaa and Grokster in Australia and the US?
Far fetched perhaps.. but an interesting thought..
And of course, in the real world, it's a lot easier to scare ISPs with far fetched theories of legal liability than it is to convince a court of it :-)
"Stepping up its campaign against illicit file-swappers, the British Phonographic Industry (BPI) has moved from targeting individual users to putting pressure on their ISPs. The BPI has just announced that 59 accounts suspected of large-scale piracy have been reported to two ISPs, which are expected to deal with the issue. 17 requests went to Tiscali, while another 42 were sent to Cable & Wireless.
The ISPs offer no guarantee that anything will be done, but the BPI wants to move faster against suspected file-swappers than is possible in the court system. They also want to paint the ISPs as complicit with the swapping through their own inaction. As they put it, "While the BPI retains the right to pursue cases against individual uploaders, the move against ISPs who have so far failed to take effective steps to stop illegal filesharing marks a significant development in the BPI campaign—allowing the record industry to deal with a greater volume of cases more quickly and efficiently." "
Oh how interesting. What's the legal position if the ISP doesn't do anything? or to put it another way, is there more than an arguable ethical duty on the ISP to investigate and taken its own action against the alleged filesharers?
Well, if the ISP gets told often enough that it has filesharers on its network (with dates and filenames and megs uploaded etc etc), and doesn't take steps to remove them, could it have constructive knowledge of illegal activity, and could it thus lose the benefit of the general ISP immunity defnce under the E-Commerce Directive Regulations? This is much the same kind of argument I toyed with making against eBay some while back.
Of course, before an ISP could even be potentially liable in civil damages, if not in criminal law, theer would have to be liablity under copyright law. Could an ISP that gets told off often enough for harbouring fileshareres be "authorising" or "inducing" copyright violation, as was successfully argued against KaZaa and Grokster in Australia and the US?
Far fetched perhaps.. but an interesting thought..
And of course, in the real world, it's a lot easier to scare ISPs with far fetched theories of legal liability than it is to convince a court of it :-)
Friday, July 07, 2006
ORG comes to town
panGloss has been cordially invited to join ORG, the new UK based Open Rights Group. ORG are hoping to host a social event at GikII, to encourage recruitment of, and communication between, members outside the London metropolis. (And so say all of us.)
ORG write:
"Recent successes for ORG include:-
In our immediate future will be a campaign on the public domain, which will lobby against the music industry's request for an extension of copyright term on phonographic recording.
Please do spread the word if you can, and help us reach our target of1000 members!"
It's good to see an organisation which realises that even in the transnational world of cyberspace and digital rights, national legal and cultural divisions make local organisation and input vital. The recent Net Neutrality debaters eg have, slightly annoyingly, entirely ignored the fact that in the EU the problem is a non starter. EDRI is a briliant example of an umbrella digital rights organisation which comprehends that different cultures have different responses to the the new information sociaty. Is ORG yet part of EDRI? I must find out!
ORG write:
"Recent successes for ORG include:-
- Submitting written and oral evidence to the All Party ParliamentaryGroup public inquiry into DRM, much of which made it into the finalreport.-
- Submitting written evidence to the Gowers Review of Intellectual Property-
- Raising awareness of the problems with DRM in the media, with several articles picking up on ORG's position
In our immediate future will be a campaign on the public domain, which will lobby against the music industry's request for an extension of copyright term on phonographic recording.
Please do spread the word if you can, and help us reach our target of1000 members!"
It's good to see an organisation which realises that even in the transnational world of cyberspace and digital rights, national legal and cultural divisions make local organisation and input vital. The recent Net Neutrality debaters eg have, slightly annoyingly, entirely ignored the fact that in the EU the problem is a non starter. EDRI is a briliant example of an umbrella digital rights organisation which comprehends that different cultures have different responses to the the new information sociaty. Is ORG yet part of EDRI? I must find out!
.. aaand it's g'buy to Google Checkout!
Further to my post on Google Checkout, Boing-Boing usefully reports that :
"A week after it was released, eBay has added Google Checkout to its list of online payment methods not permitted on eBay. A Google spokesperson says: "Google Checkout is not a beta product. Google has a long history in billing and payments for AdWords for premium services, such as Google Video". "
Oh what fun. This is what happens when money goes from being a coin of the realm to a proprietary product of course. What next? Will Google-friendly companies stop taking PayPal? Who will Amazon ally with? What does competition law say about all this, not to mention EU electronic money issuing rules? Do we need "clearing bank" rules for electronic wallet isuers? Don't miss next week's exciting episode!
"A week after it was released, eBay has added Google Checkout to its list of online payment methods not permitted on eBay. A Google spokesperson says: "Google Checkout is not a beta product. Google has a long history in billing and payments for AdWords for premium services, such as Google Video". "
Oh what fun. This is what happens when money goes from being a coin of the realm to a proprietary product of course. What next? Will Google-friendly companies stop taking PayPal? Who will Amazon ally with? What does competition law say about all this, not to mention EU electronic money issuing rules? Do we need "clearing bank" rules for electronic wallet isuers? Don't miss next week's exciting episode!
Thursday, July 06, 2006
Mobile Security :-)
Finally what the world needs - the phone that won't let you drink and dial your exes.
A Korean manufacturer has developed a phone that includes a breathalyser. It can be programmed so when you blood alcohol exceeds a safe level, certain numbers cannnot be phoned.
And the IT law element? Well, a commentator on Bruce Schneier's blog asks if you could combine the measurements taken by the phone with geospatial data to pin an unwilling motorist down for drunken driving. Maybe unlikely in the States - but in London with our comprehensive Congestion Charging surveillance system?? I wonder if the readings are date and time stamped? and if/how they're stored?
Maybe we should all start getting into the habit of removing stored data from our phones... just like people clear their cookies and their history lists!
A Korean manufacturer has developed a phone that includes a breathalyser. It can be programmed so when you blood alcohol exceeds a safe level, certain numbers cannnot be phoned.
And the IT law element? Well, a commentator on Bruce Schneier's blog asks if you could combine the measurements taken by the phone with geospatial data to pin an unwilling motorist down for drunken driving. Maybe unlikely in the States - but in London with our comprehensive Congestion Charging surveillance system?? I wonder if the readings are date and time stamped? and if/how they're stored?
Maybe we should all start getting into the habit of removing stored data from our phones... just like people clear their cookies and their history lists!
Saturday, July 01, 2006
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