The IT Lawyer

New LSE Summer School Course in Cyberlaw

2012-02-08T02:18:00.000-08:00

Exciting news:

You can now apply for the brand new LSE Summer School Course in Cyberlaw.

You get to spend three weeks in London (during the 2012 Olympic Games) being taught Cyberlaw by myself.

At the end of it (if you take the exam) you will get an LSE Summer School certificate in Cyberlaw.

The Prospectus entry is here.

General information about the 2012 Summer School is here.

You can apply to the 2012 Summer School here.

Some basic information about the Cyberlaw course:

It will run from 23 July -9 August 2012. All lectures will be given by myself. There will be 36 hours of lectures split into 12 lecture hours per week. You will have three hours of lectures per day for four days then a day off. You will also have 12 hours of tutorial classes taken by a first rate class teacher - one hour per day for four days per week. At the end will be two hour exam which will qualify you to receive the LSE Certificate in Cyberlaw.

The course will look at issues such as IP protection in Cyberspace (copyright infringement, trade mark infringement, Peer-to-Peer, Google etc.); Speech issues (defamation, free expression, transparency, injunctions (including AMP)); e-commerce (payment, contracting domain names) and privacy (data security, data protection etc.).

I will also be arranging for guest speakers such as Matthew Richardson to come along and talk about their experiences of Cyberlaw.

A detailed outline of the programme is here.

The session two courses are likely to be very popular with the Olympics on. I would advise applying early. If you have any questions please get in touch with me, my contact details are available here.

A Short Update on AMP v Person's Unknown

2012-02-08T01:55:00.000-08:00

Since the decision in AMP came out I have received many messages telling me the approach will never work. Some of these have come directly to me via email, some have been posted on this site while others were posted on news reports of the case. One such example was posted on the Daily Mail Report:

Never heard of the Streisand effect then? Attempts to remove or ban online content inevitably leads to further interest and publication.I expect those images will go viral by the end of the week now that everyone knows about them.

Well that didn't happen and neither did any of the other things suggested by the naysayers. The only blip we seem to have had to date in enforcing the order is that some wag decided to post a link to identifying information on AMP via the Daily Telegraph comments section on the story (now removed obviously) where actually another wag wrote "You don't need to publish the lady's name, because we know already. It's Ms. Canute."

Well happily so far the naysayers have been proven wrong. The pictures have not gone viral - a quick search of all the key search engines and social network sites reveals this. There has been (as we predicted) no Streisand effect. This confirms predictions I made in my book The Regulation of Cyberspace, that the online community function as a network and that regulation is likely to be effective when the community perceives that regulation or control as fair and justified. As AMP is perceived mostly as a victim, most people want the order to succeed. This may be contrasted with celebrities such as Barbara Streisand who seek to control unreasonably through a misapplication of the law (see also CTB).

Have we succeeded in removing the images from BitTorrent though? Well I've received a text from Matthew Richardson which reads

You will be pleased to hear that I think as of Monday morning we will have purged all of AMP's pictures from readily available websites...A great result I think.

So as we stand it seems we have been broadly successful. There is a problem with digital goods in that there are surely still many copies of the pictures available in the hard drives of people who made copies before the order. AMP will have to live with this knowledge. What she won't have to put up with is the continued dissemination of the pictures. At least that's how things stand now.

New Approach to Privacy: AMP v Persons Unknown

2011-12-20T04:51:00.000-08:00

I mentioned on Twitter last week that I was involved in a potentially ground breaking court case but that I couldn't say any more. Well the judgement came out this morning. The case is AMP v Person's Unknown [2011] EWHC 3454 (TCC) and the impact it may have is far reaching in terms of an alternative to orders being sought against essentially unregulatable (for the UK courts) offline platforms such as Twitter or Facebook (see entries passim on CTB v Twitter such as this one or my evidence to the Select Committee on Privacy and Injunctions.

The reporting of AMP has to be done carefully as there is a Contra Mundum order in effect (for very good reason) so I will restrict myself to only those things said in the judgement and those things which are clearly not subject to the order. Firstly all credit for the innovative order passed down today rests with the excellent and always innovative Matthew Richardson who made headlines two years ago with his innovative approach to online impersonation via Twitter - the so called Blaney Blarney Order (see here and here). I suspect the AMP order may have the same impact and provides a new approach to the regulation of online content for individuals and companies by applying Chris Reed's "Internet Fallacy" argument to a practical situation. This is people are people wherever they are and people may be regulated and controlled by the courts of the jurisdiction they are in.

What happened and how was the order won? Well as I said I have to remain within the judgement given the wider Contra Mundum order. Essentially AMP either lost or had her mobile phone stolen (it was reported as stolen with the police) and with it sexually explicit images of the claimant - although the judgement is not clear we can assume she was "sexting" her boyfriend. It is clear that (a) AMP owned the copyright in these images and (b) they were private images obtained illegally via the theft. Soon thereafter the images appeared on a Dutch file hosting site for a short period but were removed from there at the request of the claimant but not before the images had been downloaded by others. As the judgement makes clear a number of blackmail demands followed, possibly from the same person.

The images then found their way onto a BitTorrent site and a three year legal battle was begun to essentially block the sharing of the BitTorrent content. This is where Matthew and then later I (in a very minor role) became involved. Everyone knows BitTorrent content is unregulatable, or at least that is the orthodoxy, Matthew though came up with a novel approach. You cannot ask Torrent Trackers or the providers of Torrent Clients to block as they essentially cannot do so due to the nature of BitTorrent. What you can do though is prevent people from seeding Torrents if they are within the jurisdiction of the Court. Matthew surmised (and I agreed) that as AMP is not a celebrity (or in any way famous) anyone sharing the images was likely to know her personally either from her circle of acquaintances at home (ex school colleagues etc) or from University. These people would be based in the UK (England & Wales) and would be the key to seeding the Torrent. Take out the key Seeders and the Torrent would pretty much wither on the vine.

What Matthew needed to do was to convince the Court to award an order that he could serve on anyone seeding the Torrent. As most of them would be located within the jurisdiction of the Court it would be effective. He developed a number of claims including claims under the Copyright, Designs and Patents Act 1988 but essentially it came down to two claims: (1) Privacy under Article 8 of the ECHR and (2) Protection from Harassment. The stronger claim was under the Protection from Harassment Act 1997 as an infringement of a harassment order is a criminal offence. The full judgement is available below but to cut a long story short Ramsay J. agreed that the actions of the Seeders was harassment and made an order under s.3 of the 1997 Act. A breach of this order is an offence under s.3(6)(b).

Matthew will now no doubt go about serving this order on anyone who seeds the files in question. This may involve a Norwich Pharmacol application but assuming we are right in our earlier assumption that overwhelmingly seeders will know AMP and are therefore within the jurisdiction of the Court we expect seeders to quickly stop sharing once the nature of the order is made known to them. Hopefully AMPs lack of celebrity means this will not lead to any kind of Streisand Effect - in fact this is not a free speech issue in any way the images were private and were stolen.

Thus content on BitTorrent may just be regulatable after all. Although we accept this is a very unusual case and its wider application may be limited.

The judgement is available here.

UPDATE - Just spoke to Matthew and applications for third party identities will be done under CPR 31.17 not Norwich Pharmacol. This is quicker, easier and cheaper. Also Matthew pointed out that the seeders do not have to be based within England & Wales to be brought under the jurisdiction of the order - thanks to a European Arrest Warrant anyone within the EU is bound by the order.

Evidence to the Joint Committee on Privacy and Injunctions

2011-11-29T07:34:00.000-08:00

I spent a fun afternoon yesterday with a mixture of MPs and Lords and three other excellent expert witness on internet industries and regulation/governance discussing what should be done about individuals with accounts on social network sites such as Twitter breaching privacy and super injunctions. Our evidence session was about one hour and we were followed by executives from Northern and Shell (publishers of Express Newspapers and owners of Channel 5).

Update You can also access the video stream from the BBC Democracy Live site which is better quality than the Parliament Stream and may work better on Apple Devices

Giving Parliamentary Evidence Tomorrow

2011-11-27T01:01:00.001-08:00

Tomorrow afternoon I am taking a jaunt to provide evidence to the Joint Select Committee on Privacy and Injunctions. I'm on at circa 2.15pm with Dr. Ian Brown of the Oxford Internet Institute, Ashley Van Haeften, Trustee of Wikimedia UK and Nicholas Lansman, Secretary General of the Internet Service Providers Association. The whole thing can be watched live (and then archived) from the UK Parliament Channel - http://www.parliamentlive.tv/Main/Home.aspx I have a list of questions but can't share them with you, I also have my suit pressed and a new pair of shoes.

It is a busy day tomorrow as I'm teaching 12 - 1, then at 6.00pm we have the excellent and entertaining Barefoot Technologist discussing the key themes of her book Barefoot into Cyberspace. If you are in the vicinity of the LSE's new Academic Building at 6.00pm - we're in the Moot Court Room on the seventh floor - join us.

Baker & McKenzie Debate on Meltwater

2011-11-27T00:30:00.001-08:00

Yes the blog lives. I've been so busy the last six months or so that this was the first thing to go by the wayside but now I have a couple of important things to blog so here is the first...

Last Tuesday Ben Allgrove and Iona Harding at Baker & McKenzie's New Bridge Street offices arranged an excellent debate entitled "Is Meltwater the End of Browsing". I was asked to argue in favour of the motion alongside the excellent and entertaining Neil Wilkof (Head of IP at Herzog, Fox and Neeman and IP Kat). Ranged against us were the formidable Justine Pila (St. Catherine's Oxford) and the the passionate Dominic Young (former Chairman and Director of NLA).

Did we win? Yes we did! We went from one vote to nine (an 800% increase) while the pro-NLA stance offered by Justine and Dominic went from nineteen votes to twenty-six (an increase of only 37%) or if you prefer straight numbers - we won eight additional votes, the other side only seven additional votes. Full details are on IP Kat.

In truth I don;t think either side scored a clear victory but in a room predominantly filled with in house lawyers from content providers I found our winning of eight votes to be cathartic.

My argument was based upon a change of status for web content which is passively browsed and is set out in full below.

NLA v Meltwater – Draft Outline of Argument

Argument: NLA v Meltwater is the end of Browsing

Key Principles:

1. Consumptionis clearly distinguishable from reproduction and while copyright law restrictsthe latter it permits the former.

2. While in copyrightlaw consumption is a permitted act (see 1), in digital distribution thispermitted act becomes a permissible act due to the operation of the system.

3. Thisreflects an important legal migration in regard to digital consumption – wemove from permitted to permissible to what – not permitted?

4. The InfoSocDirective, Article 5, is designed to rebalance this movement both fordistributors and consumers.

5. The movementseen in recent cases Infopaq and in particular Meltwater has removed theprotection awarded to end users at 4.

6. In the UKpost Meltwater environment web surfing once again is placed in its pre November2003 scenario – browsing is not an activity as of right (permitted) it is onlyallowed at the discretion of the copyright holder (permissible) which may beremoved or revoked at any time (not permitted) – this is in breach of thespirit and in my view the letter of the InfoSoc Directive.

1. It is thetradition of copyright law that it protects restricted acts, restricting themto the copyright holder and their licensees. These acts all involve the makingor distribution of copies or adaptations. There is no copyright restriction onconsumption and there never has been. Thus if a copy of a book is left on apark bench and I pick it up and start reading it I commit no infringement.Equally if I walk along the street and look through the window of a gallery (oreven private home) and look upon an Albers hanging upon the wall, I commit noinfringement and need no license. Licences are only required where one isdealing with a restricted act (eg a PRS license for playback in private venueswhere the public or a sample of the public (such as employees) are listening.)The act of consumption (in the analogue world) is one which has never required a license. It is nota permissible act it is a permitted act.

2. As we areall aware digital distribution unbalances this traditional model. To consumemeans to make a local copy. Local copies can be made at several points alongthe distribution model, including two final copies at consumption (1 a cachecopy) and (2 a screen copy). This is purely an effect of the digitaldistribution model. It is because instead of sending the original from point Ato point B we instead make a copy of the original available at point B. Thismakes consumption dependent upon the making of a copy and consumption as aresult moves from being a permitted act to one which requires the permission ofthe copyright holder (i.e. a license). If we strip away the technicality though there is nothing in factdifferent in reading a newspaper in physical form and reading a newspaper on aniPad or Kindle. Both are acts of consumption not acts of distribution oradaptation.

3. This createsa vital distinction in our manner of (legal) consumption. Whereas consumptiondid not require a license or permission of the copyright holder in the analogueworld it appears it is needed in the digital world – see e.g. Shetland times vWills 1997. This moves consumption from being a permitted act to being apermissible act – i.e. one that requires the permission of the copyrightholder. This permission unlike the freedom offered by a permitted act can bewithdrawn at any time as it is at the whim of the copyright holder. Thus afreedom is converted and lost. We lose the freedom to consume.

4. This changein position was recognised at an EU Level. It was recognised both in thedistribution chain (also affected by the change in fact) and at the point ofconsumption. This is clear from both the recitals and the articles.

(31) A fair balance of rights and interests between the differentcategories of rightholders, as well as between the different categories ofrightholders and users of protected subject-matter must be safeguarded. Theexisting exceptions and limitations to the rights as set out by the MemberStates have to be reassessed in the light of the new electronic environment.Existing differences in the exceptions and limitations to certain restrictedacts have direct negative effects on the functioning of the internal market ofcopyright and related rights. Such differences could well become morepronounced in view of the further development of transborder exploitation ofworks and cross-border activities. In order to ensure the proper functioning ofthe internal market, such exceptions and limitations should be defined moreharmoniously. The degree of their harmonisation should be based on their impacton the smooth functioning of the internal market.

(32) This Directive provides for an exhaustive enumeration ofexceptions and limitations to the reproduction right and the right ofcommunication to the public. Some exceptions or limitations only apply to thereproduction right, where appropriate. This list takes due account of thedifferent legal traditions in Member States, while, at the same time, aiming toensure a functioning internal market. Member States should arrive at a coherentapplication of these exceptions and limitations, which will be assessed whenreviewing implementing legislation in the future.

(33) The exclusive right of reproduction should be subject to anexception to allow certain acts of temporary reproduction, which are transientor incidental reproductions, forming an integral and essential part of atechnological process and carried out for the sole purpose of enabling eitherefficient transmission in a network between third parties by an intermediary,or a lawful use of a work or other subject-matter to be made. The acts ofreproduction concerned should have no separate economic value on their own. Tothe extent that they meet these conditions, this exception should include actswhich enable browsing as well as acts of caching to take place, including thosewhich enable transmission systems to function efficiently, provided that theintermediary does not modify the information and does not interfere with thelawful use of technology, widely recognised and used by industry, to obtaindata on the use of the information. A use should be considered lawful where itis authorised by the rightholder or not restricted by law.

Article 5

Exceptions and limitations

1. Temporary acts of reproduction referred to in Article 2, whichare transient or incidental [and] an integral and essential part of atechnological process and whose sole purpose is to enable:

(a) a transmission in a network between third parties by anintermediary, or

(b) a lawful use of a work or other subject-matter to be made, andwhich have no independent economic significance, shall be exempted from thereproduction right provided for in Article 2.

Myunderstanding of Article 5 (especially in light of Recital 33) is that Art.5(1)specifically permits the distribution of digital copyright products, whileArticle 5(2) permits consumption (problem – this darn term “a lawful use” nowthe other side will argue this means licensed I’m going to say permitted). Theidea of article 5(2) is to place digital consumption on the same footing asanalogue consumption.

5. There arereasons to be concerned by Infopaq and Meltwater. Infopaq started the narrowingof the temporary copies exemption (i.e. the one needed to allow distributionchains and consumption). The problem is paragraphs 62-64 of Infopaq and itsapplication in Meltwater. Starting with Infopaq, at para.54 it sets out thetemporary copies exemption as seen in Article 54.

54 The article set out five cumulativeconditions, namely:

(a) the act is temporary;

(b) it is transient or incidental;

(d) the sole purpose of that process is to enable a transmission in anetwork between third parties by an intermediary or a lawful use of a work orprotected subject-matter; and

(e) the act has no independent economic significance.

Thenby paragraph 62:

62 Legal certainty forrightholders further requires that the storage and deletion of the reproductionnot be dependent on discretionary human intervention, particularly by the userof protected works. There is no guarantee that in such cases the personconcerned will actually delete the reproduction created or, in any event, thathe will delete it once its existence is no longer justified by its function ofenabling the completion of a technological process.

63 This finding is supportedby recital 33 in the preamble to Directive 2001/29 which lists, as examples ofthe characteristics of the acts referred to in Article 5(1) thereof, acts whichenable browsing as well as acts of caching to take place, including those whichenable transmission systems to function efficiently. Such acts are, bydefinition, created and deleted automatically and without human intervention.

64 In the light of theforegoing, the Court finds that an act can be held to be ‘transient’ within themeaning of the second condition laid down in Article 5(1) of Directive 2001/29only if its duration is limited to what is necessary for the proper completionof the technological process in question, it being understood that that processmust be automated so that it deletes that act automatically, without human intervention,once its function of enabling the completion of such a process has come to anend.

Thus somewhere the court has withoutjustification added a new requirement: that the copy be deleted without theneed for human intervention. This is notin Article 5 nor required by the recitals. The only reason for this appearsto be to balance the interests of the rights holders. This is a hard policydecision to ensure that permanently stored digital copies (stored in permanentmemory and which require human intervention for deletion) and external hardcopies do not benefit from the transient copies protection (this is clear inparagraphs 66 and 67 of Infopaq).

Now we come to Meltwater. Here theCourt of Appeal start from the Infopaq end point – that found by Proudman J.that “the temporary copies exception is solely concerned with incidental andintermediate copying so that any copy which is 'consumption of the work',whether temporary or not, requires the permission of the copyright holder. Aperson making a copy of a webpage on his computer screen will not have adefence under s. 28A CDPA simply because he has been browsing. He must firstshow that it was lawful for him to have made the copy. The copy is not part ofthe technological process; it is generated by his own volition. The whole pointof the receipt and copying of Meltwater News is to enable the End User toreceive and read it. Making the copy is not an essential and integral part of atechnological process but the end which the process is designed to achieve.Storage of the copy and the duration of that storage are matters within the EndUser's control. It begs the question for decision whether making the copy is toenable a lawful use of the work. Moreover, making the copy does have anindependent economic significance as the copy is the very product for which theEnd Users are paying Meltwater.”

In other words because a browsercommands a copy to be made they interfere in the technical process, thuscausing the copy to be made. Applying Inofpaq this is not permitted underArt.5(1). This leads to the ludicrous decision that “As is clear from aconsideration of recital 33 as a whole, the reference to "browsing"is "to the extent that they meet these conditions". ‘They’ refers tothe acts of reproduction. The acts of reproduction are those occasioned by thevoluntary human process of accessing that webpage. Accordingly, they fail tosatisfy any of the conditions to which recital 33 refers. S.28A does notprovide even a limited defence to the claims of infringement to which thebusiness of Meltwater is likely to give rise. This is plainly wrong “they”mean: (1) acts of temporary reproduction; (2) which are either “anintegral and essential part of a technological process and carried out for thesole purpose of enabling either efficient transmission in a network betweenthird parties by an intermediary” (distribution) OR “a lawful use of a work”(consumption) and (3) which have no separate economic value on their own.

The effect of two policy decisions isdamaging. Infopaq was about ensuring semi permanent copies do not somehow sneakthrough the temporary copies exemption by ensuring copies kept for a shortperiod but at the control of a human actor are not included. Meltwater has nowextended this to browsing which is specificallyexempted in Recital 33.

6. Thus in theUK post Meltwater environment web surfing once again is placed in its preNovember 2003 scenario – browsing is not an activity as of right (permitted) itis only allowed at the discretion of the copyright holder (permissible) whichmay be removed or revoked at any time (not permitted) – this is in breach ofthe spirit and in my view the letter of the InfoSoc Directive.

CTB and Twitter: I Could Have Saved CTB Time, Money and Publicity

2011-05-22T01:50:00.000-07:00

This is my first commissioned blog post.

Yesterday afternoon during the height of the CTB/Twitter fire-storm a message came through from popular Twitter artist/comedian/lawyer @loveandgarbage "BREAKING: Public demand Murray blogpost on CTB issue"

I realised this story did demand my attention but it was sunny and I was sitting in the garden eating an ice cream. As the world was going to end at 6pm I wasn't about to go inside and write. Tomorrow I told @loveandgarbage - I would do it tomorrow (assuming tomorrow would never come).

Today

Well unlike Little Orphan Annie for me tomorrow has come (to the disappointment of Harold Camping). As I said I wasn't about to start blogging yesterday afternoon in case all my readers were Raptured before the end of the day (or I suppose it should be the End of Days). Now that I seem quite sure we're all going to be here to enjoy Survival Sunday (c'mon Blackpool) it seems the perfect time to talk about CTB and his battle to keep his identity as professional footballer CTB under wraps.

Survival Sunday now means something else for CTB. For those of you unfamiliar with the story (is there anyone?) - CTB allegedly had a sexual relationship with Big Brother star (is this right - star?) Imogen Thomas. This would not be a problem except CTB is married and has a family. When Miss Thomas threatened to go public with details of the affair CTB obtained an injunction against publication. It seems (and I might be wrong in this) that it is wrong to refer to it as a superinjunction (at least now) as the order was varied by Justice Eady to allow for Miss Thomas to be named in the press. A superinjunction cannot be reported at all - like the one which is held by the sitting MP who obviously cannot be named (although like CTB most of us know who they are). Apparently on Wednesday last week CTB's lawyer's Schillings applied for a Norwich Pharmacal Order against Twitter and persons unknown. In legal terms this is the sensible next step and there is a form of precedent for this in the Blaney Blarney Order. But the big difference with Blaney and CTB is who the order is being served on. In Blaney Matthew Richardson came up with the frankly brilliant idea of serving on the account and asking the account holder to identify themself, whereas as far as I can glean Schillings have gone for a straight Norwich Pharmacal which they served on Twitter on Friday.

CTB Schillings and Twitter

The effect of serving the order was to throw fuel onto a fire that had started to smoulder. As I discussed earlier about this case it is the hint of the forbidden that causes people to gossip.As the identity of CTB and other injunction holders entered the public consciousness people started to slowly lose interest. Hash Tags such as #superinjunction which had been trending seven days before had stopped trending and attention turned to the wider issue of the Neuberger Report. Then Schillings and CTB threw fuel onto the smouldering fire. As one would expect an explosion occurred. It has been reported that Twitter had barred CTB's real name from trending but that upon receiving the order removed the block. this seems highly unlikely instead it was simply that a sudden weight of interest in the story coupled with two effects (below) caused the star's name to trend with reports that it was being tweeted sixteen times per minute. What caused this perfect storm?

Well first there is the Streisand Effect. This states that when someone tries to suppress information online the internet interprets this as damage and routes around it - causing greater publication of the data. The second is the #IAmSpartacus Effect. This was seen clearly in the Paul Chambers case. Users of Twitter have an unusually strong community spirit. If you attack one you attack them all. When Schillings launched the Norwich Pharmacal Order on Twitter it meant that there was an attack on the community. People who would never name CTB began doing so in solidarity with the members under attack. Suddenly CTB's name was everywhere - across Twitter, across Wikipedia and elsewhere (even appearing in several jokes on online sick humour site Sickipedia). As a method to keep his identity private it was without doubt the worst thing he could have done.

What next then? Well the Norwich Pharmacal Order is still in play so the next move is Twitter's. Now as has been pointed out ad nauseum Twitter is not directly subject to the jurisdiction of the Courts of England & Wales but a source that I spoke to some time ago (makes me sound like a proper journalist) said that Twitter had indicated it would comply with recognised orders of any Court. Now though comes the litmus test. Will Twitter hand over account holder details to Schillings and the English Courts? If they do so they risk massive commercial damage as users leave Twitter over a perceived failure to protect their identity. If they do not they will be seen as failing to assist the Court in the lawful pursuit of its duties. For Twitter this really is a catch 22. They will hope that the reaction to the story causes Schillings/CTB to drop the action. This gives them an easy way out. If not they will have to decide whether to voluntarily accept the order or to reject it and make a first amendment argument. Watch this space.

How I could have saved CTB Time and Money (and Needless Publicity)

The CTB Twitter story is for me the perfect case study which finally proves my theory of symbiotic regulation.For some six years now my research has been focussed upon how one brings about effective regulation in Cyberspace. Why do some attempts to use legal (or even extra-legal) controls fail while other succeed. I know that the traditional model (the Cyberpaternalist model) wasn't true. It suggested that control could be effected through a mixture of law and code - a perfectly controlled designed environment where you could only say or do what the regulators allowed. This only works if you imagine the internet is a communications device only. The internet though is made up of communities of people and communities require socio-legal controls to be effective. These ideas began to coalesce into my 2007 book The Regulation of Cyberspace. You can read the preface and chapter one on my website. Basically my view is that online communities require to be controlled through regulatory settlements which are socially (politically) acceptable to that community. Otherwise the community will design a response to the attempted control which undermines the attempted control and often (as we see here) overwhelms it. The answer is symbiotic regulation - regulation designed to harness the political will of the community not one which attacks its core values. Two short papers with variations on the symbiotic regulation argument are available from my Selected Works page. They are Symbiotic Regulation and Regulating the Post-Regulatory Cyberstate.

What should CTB have done from a Symbiotic point of view?

This is a difficult case as it depends upon his aims. I would have managed his expectations and said he was unable to keep his identity secret. In order he should do the following:

Apologise to his wife and take his family away from the UK for a short period (as John Terry did during the Veronica Perroncel story).
Make a public statement admitting the affair (assuming it is true, otherwise deny) and asking for people to respect his children's privacy - (this kicks in the PCC Rules and appeals to the family responsibility sentiments of most Twitter users. Although they feel no sympathy for the player they do for his family, especially his children).
Wait about 10 days and bring the family home.

This wouldn't prevent the children being exposed to the story, the only thing which would have prevented this is not to have an affair in the first place. But in the ten days his family were away much of the story would have burnt itself out. Obviously there would be media interest in the family's return to the UK but the PCC rules would protect the children to some extent. The online forums and Twitter would though mostly have moved on to something else - probably the actor/prostitute story (have you noticed it has started to fade away because they didn't seek a Norwich Pharmacal?)

Final Thoughts

In the 1890s it was the Box Brownie camera. Today it is Twitter. The relationship between technology and privacy will always be problematic. What though can we learn from the past? Well as Mark Easton points out the famous Warren and Brandeis Harvard Law Review article The Right to Privacy found the highly influential lawyers railing against the invasive effect of the portable camera. They noted that "modern enterprise and invention" were being used by the press "to satisfy a prurient taste" for the details of sexual relations. This they said was "overstepping in every direction the obvious bounds of propriety and decency" and argued the press had "invaded the sacred precincts of private and domestic life".

One hundred and twenty one years on how have things improved? Have the press taken account of the Warren and Brandeis argument? Are things better? Let's look and see?

Final thought. Based on this is there any way you can imagine the blunt instrument of the court order will be effective on Twitter?

The Problem of Gossip, Rumour, Privacy and Superinjunctions

2011-05-10T01:45:00.000-07:00

Super-injunctions are the order of today, with the media obsessed currently over the Twitter breaches which although specifically highlighted in the last 48 hours have been ongoing for the last few weeks ever since the initial rash of reports that there were three injunctions involving a married footballer who had had an affair with a former big brother contestant, a "leading actor's" visit to a prostitute and that a TV actor had an affair with a colleague. If you want to read the standard commentary then go to any one of a hundred news sites who are foaming to give you the clues to unmask these people (and others including the second footballer who had an affair with model Kim West, a chef who used the process to gag reports of an ongoing tribunal, the TV personality caught in pictures enjoying the company of another celebrity and the actor/comedian who enjoys something more "interesting" in the bedroom) - a good example of such a story is this one in the Daily Mail. A few journalist are actually doing a fair job of analysing the legal position such as Dan Sabbagh's story for the Media Guardian but I'm here to argue something different: super-injunctions are harmful to privacy rather than a positive defence of it.

Why are super-injunctions counter productive?

Let's look at what has happened in the four weeks since the original stories surfaced. Some things have been revealed such as Fred Goodwin had an injunction preventing him from being named as a banker in a story relating to an affair and Andrew Marr had a long held injunction preventing him from being named in relation to a child born of a woman he had had an affair with. What would have happened without these injunctions? The aphorism is today's news tomorrow's chip paper. We would have had a very short splash in the papers about these affairs and then probably they would have been forgotten (footballers and politicians aside news of affairs tends to quickly fade from the memory) - who remembers honestly that Ralph Fiennes split from his long term partner Francesca Annis after a rumoured affair with a Romanian singer (or that he met Annis while still married to Alex Kingston) - if you argue that was five years ago what about this story from March this year? Honestly did you remember them?

The problem of the injunction (super or otherwise) is twofold: (1) It extends the life of the story and (2) It causes anguish to others (in breach of their Article 8 Right). Both these have the same root cause - the human desire for knowledge. We crave what we do not have, what we do not know, but quickly forget these things when we have them. How often have you desired the latest gadget, craved it, and after you have bought it found it quickly relegated to the sidelines as you more on to the next new thing? The same is true of knowledge and information - we always want what we're told we can't have. The injunction makes it forbidden knowledge so we know we must have it. If you knew (or know) who the actor or the comedian is you would know it would have gone the same way as the story from March which I referred to earlier. In fact the actor/comedian story only came about allegedly because he was so obscure and insecure he said to a prostitute the immortal line "do you know who I am?" Daniel Solove knew about this in 2007 when he wrote his book The Future of Reputation: Gossip, Rumour and Privacy on the Internet.

Solove noted that one of the core activities of humans is gossip. We all do it. Stereotypically woman gossip in the hairdressers or over coffee while men gossip in the pub. Today we have built a global gossip engine (it's not the World Wide Web more the Global Gossip Gadget. We continually update Facebook with comments about people we know, we Tweet things we know (or think we know - see below), we Blog, we Comment, we Gossip. The problem is gossip is not based upon factual knowledge but about innuendo and rumour, this causes potentially much greater harm than simple facts. The danger is that innocent parties get harmed.

Why are super-injunctions harmful to privacy?

On Sunday a new Twitter account was opened by someone who thought they knew all the facts about current injunctions. I can't tell you who they are or the address of the account. I can't tell you what they said but it looks something like this:

The Redacted Twitter Feed

The problem is they didn't know it all and an innocent party was dragged in. They claimed (and I can report this) that the TV personality caught in embarrassing photographs with another celebrity was Jeremy Clarkson with Jemima Khan. This is not true yet two innocent people have been caught up in a glare of publicity because a third party wishes to deflect publicity from themselves. As Khan tweeted yesterday:

I hope the people who made up this story realise that my sons will be bullied at school because of it. Plus I'm getting vile hate tweets.

This is the crux of the problem. The injunction has not protected the net privacy of everyone involved instead it had moved the privacy invasion from one person to another - it is a re-allocation of the effect and as there is more interest in the story due to the "illicit nature" of the story the net invasion of privacy is magnified. One person (who I cannot name for legal reasons) is protected (for the moment eventually the truth will out) while another has her private life unnecessarily infringed to harmful effect for her and her family. Why should Jemima Khan suffer because another celebrity wants to protect his family? The question therefore is "should judges take into account the possible effects on third parties before awarding such injunctions?"

Jemima Khan is not the only one to suffer. The "well known actor" who visited prostitute Helen Wood and who "kissed like a virgin" has been named extensively on Twitter and Wikipedia. Despite this there are still today people who are falsely naming him to be Ewan McGregor. This was due to the way the media reported the story at the time. They said he was a world famous movie star who was very protective of his family who had done TV work. This led to rumour sites like this one recklessly suggesting Ewan McGregor as he was one of the few internationally famous UK actors who fitted the bill. It never was Ewan McGregor yet his family have been subject to a month of rumour and speculation and because he is famously protective of his private life unlike Jemima Khan he has stayed quiet - which for some people mean it must be true. Another family's privacy destroyed by an injunction.

Of course these two are not the only two affected. Also harmed have been Gabby Logan and Alan Shearer.

I'm going to finish with words I never thought I would write. I agree with much of what Steven Glover has written in the Daily Mail. I do not agree though that what I argue should be a green light for the mainstream media to do what they like. Bizarrely I may be arguing for super-injunctions over injunctions as if we are never aware of the injunction there is no gossip. The problem is these types of injunctions are rarely watertight and once their existence becomes known the harm to others begins. You cannot ban gossip and gossip based on incomplete knowledge will almost always harm innocent parties. Judges need to consider this (a) in decising whether to grant an injunction and (b) deciding what details about it may be reported.

Cloud Computing Regulation

2011-02-28T01:03:00.000-08:00

Last Wednesday was the excellent one day conference on Cloud Computing: Legal, Organisational and Technological Issues, organised by the Commercial Law Research Unit at UWE, Bristol. There was a mixed audience of service providers, lawyers and academics. I presented a development of my active matrix theory designed to highlight the problems of gatekeeper control in cloud computing. The slides used are below.

Designating effective regulation in the cloud

View more presentations from Andrew Murray.

Basically my argument is thus. We already know that there are powerful regulatory controllers in network regulation - viz Latour, Foucault, Luhmann etc. We also know the peculiar regulability of digital network systems - Lessig, De Hert etc. When one thinks about the uniquely powerful positions that gatekeeper nodes such as cloud computing providers put themselves in we must ask what costs will be extracted by them for the services they provide?

Will they exert only economic costs? Unlikely for as other gatekeepers such as Facebook and Google have shown the value of data is quite alluring - so democratic, social and personal costs are likely in terms of data flows and data mining. The key is in the recognition of these gatekeepers and the peculiar role they play for they are likely to be key regulators in the future.

UPDATE: Media Cat v Adams

2011-02-11T01:19:00.000-08:00

A lot has been written on the recent Media Cat v Adams decision (otherwise known as the ACS: Law decision). Few of those writing have actually read the decision in full so here is my take on it having done so - the decision may be read here .

Volume litigation is discussed in Chapter 10 (at 10.2.7) and only received three pages of coverage in the book. Since then much has happened, most of it fuelled by the actions of Andrew Crossley and ACS: Law. This blog has several entries on this - see Not a Good Week for Andrew Crossley and Volume Litigation Issues to catch up while I also wrote a longer piece on the activity for the Journal Computers and Law. Throughout I bemoaned the lack of a full hearing on the activity, noting that whenever an action was defended the pursuit would be dropped. I'm pleased to say eventually that Railli Solicitors and Lawdit Solicitors (operated by the excellent Michael Coyle) finally forced a hearing. What happened next has been covered extensively by the media. ACS:Law ceased operations and Andrew Crossley sought to have the cases discontinued. He claimed he had been the target of death threats including bomb threats and criminal attacks including the famous Anonymous ACS:Law hack - interestingly on a related note the Information Commissioner last week found he need take no action against BT over leaked customer details handed over to ACS:Law - see here .The more cynical may observe that Andrew Crossley sought to discontinue the cases to avoid a precedent being set in case he ever wanted to return to this valuable cash cow. In any event HH Judge Birss was having none of it. He decided as the copyright holders were not in court the case had to continue and continue it did (and indeed does) and on the 8th of February he issued his judgement in the matter.

Media Cat v Adams

The most important part of HH Judge Birss's judgement is his views on the connection of IP addresses and infringers. As I have discussed before the fulcrum of the volume litigation model is to link an IP address to an individual user using a Norwich Pharmacal order. So the enforcement organisation (in this case Media Cat) capture IP addresses which they pass on to their legal representatives (here ACS:Law) who then seek a Norwich Pharamacal order against ISPs forcing them to reveal customer account details relating to that IP address. As has been pointed out by myself and others an IP address is though an address of a device not a person - you can identify a router but now who was using it. ACS:Law have claimed that the operator of a router has some form of "owner liability" to ensure that anyone using their router is not acting unlawfully. I have repeatedly pointed out that the Copyright, Designs and Patents Act has no such provision.

Judge Birss seems to have come down squarely on my interpretation of the CDPA. He notes (at paras [28-31]):

28. All the IP address identifies is an internet connection, which is likely today to be a wireless home broadband router. All Media CAT’s monitoring can identify is the person who has the contract with their ISP to have internet access. Assuming a case in Media CAT’s favour that the IP address is indeed linked to wholesale infringements of the copyright in question (like the Polydor case), Media CAT do not know who did it and know that they do not know who did it. The Particulars of Claim are pleaded in a way to address a problem which is very old and very well known in intellectual property cases (see e.g. The Saccharin Corp v Haines (1898) 15 RPC 344). There the patentee had patents on all known methods of making saccharin and so, even though the patentee did not know how it was made, the defendant’s saccharin must be infringing one way or another. Such saccharin type points arise frequently when a claimant contends that despite a lack of information about some aspect of the matter, one way or another the defendant is liable for infringement.

29. Media CAT’s case on this is in two parts. Of course Media CAT cannot know who actually used the P2P software, so in paragraph 3 of the Particulars of Claim they plead that the software was used either by the named defendant who was identified by the ISP, or by someone they authorised to use the internet connection or someone who gained access to the internet connection “due to the router having no or no adequate security”. Then in paragraph 5 the plea is that “in the premises” the defendant has by himself, or by allowing others to do so, infringed. So taken together these two paragraphs show that the Particulars of Claim is pleaded on the basis that one way or another the defendant must be liable for the infringement which is taking place.

30. But the argument is based on equating “allowing” and “authorising” and on other points. What if the defendant authorises another to use their internet connection in general and, unknown to them, the authorised user uses P2P software and infringes copyright? Does the act of authorising use of an internet connection turn the person doing the authorising into a person authorising the infringement within s16(2)? I am not aware of a case with decides that question either. Then there is the question of whether leaving an internet connection “unsecured” opens up the door to liability for infringement by others piggy backing on the connection unbeknownst to the owner. Finally what does “unsecured” mean? Wireless routers have different levels of
security available and if the level of security is relevant to liability - where is the line to be drawn? No case has decided these issues but they are key to the claimant’s ability to solve the Saccharin problem and say – one way or another there is infringement here.

31. Notable again is the contrast between the letter of claim and the Particulars of Claim. The letter simply asserts that the defendant has infringed “either directly yourself or by you authorising (inadvertently or otherwise) third parties to do the same”. The letter makes no mention of unsecured internet connections. It does not face up to the Saccharin point. Again the Particulars of Claim is rather more frank than the letter.
The Particulars of Claim faces up to the difficulty and tries to put a case which deals with it, but it all based on untested legal and factual propositions and issues of technology.

Where does this leave us. Well Judge Birss has to be careful. He cannot say the use of an IP address as a proxy for a user is not possible as he has not had a full hearing on the evidence, hence the carefully couched language. But reading between the lines he is saying it would have to be pretty spectacular evidence before he would even consider such a statement. He is also pointing out that ACS:Law is saying one thing in letters to alleged infringers and another in their statements of claim. This he seems to be suggesting is al least bad practice at worst bad faith.

He concludes his views on the practice of connecting IP addresses to claims at para. [91]:

91. First, the nature of the case itself raises many questions. I have mentioned some of them above. The issues are as follows:-

(i) Does the process of identifying an IP address in this way establish that any infringement of copyright has taken place by anyone related to that IP address at all.
(ii) Even if it is proof of infringement by somebody, merely identifying that an IP address has been involved with infringement then encounters the Saccharin problem. It is not at all clear to me that the person identified must be infringing one way or another. The fact that someone may have infringed does not mean the particular named defendant has done so. Perhaps the holder of the account with the ISP has a duty to assist along the lines of a respondent to another Norwich Pharmacal order but that is very different from saying they
are infringing.

He goes on from this central point to, in a quite extraordinary judgement, attack the practice of volume litigation more generally. In paragraph [21] he discusses the menacing tactics of the volume litigation model:

21. Perhaps many, maybe more of the recipients of these letters have been squarely infringing the copyright of [the copyright holder] on a major scale and know that they have been doing exactly that. They may think £495 is a small price to pay and settled immediately. That is a matter for them. However it is easy for seasoned lawyers to under-estimate the effect a letter of this kind could have on ordinary members of the public. This court’s office has had telephone calls from people in tears having received correspondence from ACS:Law on behalf of Media CAT. Clearly a recipient of a letter like this needs to take urgent and specialist legal advice.Obviously many people do not and find it very difficult to do so. Some people will be tempted to pay, regardless of whether they think they have actually done anything, simply because of the desire to avoid embarrassment and publicity given that the allegation is about pornography. Others may take the view that it all looks and sounds very official and rather than conduct a legal fight they cannot afford, they will pay £495. After all the letter refers to an order of the High Court which identified them in the first place. Lay members of the public will not know the intricacies of the Norwich Pharmacal jurisdiction. They will not appreciate that the court order is not based on a finding of infringement at all.

At paragraph [23] he attacks the claimants for trying to dispose of the actions without allowing the respondents the chance to be heard:

23. In any event over a period from August to November 2010 Media CAT commenced 27 cases before the Patents County Court for copyright infringement. In November they applied for default judgment in 8 of them using a procedure almost unheard of in intellectual property cases called a request for judgment (RFJ). It is without notice to the defendant. These came before me on paper and were dealt with without a hearing. On 1st December 2010 they were rejected (see Media CAT v A [2010] EWPCC 017). The judgment questioned whether the RFJ procedure was appropriate for complex copyright cases of this kind. One feature of the RFJ procedure is that it is designed for claims for specified sums of money (and certain other claims) where no judicial decision is required (see The White Book at 12.0.2).

The coup de grace is delivered in three final withering comments:

At paragraph [91(iii)] he questions the level of damages claimed:

The damages claimed deserve scrutiny. If all that is proven is a single download then all that has been lost is one lost sale of one copy of a work. The sort of sum that might represent would surely be a small fraction of the £495 claimed and the majority of that sum must therefore be taken up with legal costs. If so, a serious question of proportionality arises but again this has not been tested. Clearly if the defendant has infringed on a scale as in the Polydor case then would be a very different matter but there is no evidence of such infringement here.

At paragraph [99] he questions the whole tactics of Media Cat/ACS:Law

Media CAT and ACS:Law have a very real interest in avoiding public scrutiny of the cause of action because in parallel to the 26 court cases, a wholesale letter writing campaign is being conducted from which revenues are being generated. This letter writing exercise is founded on the threat of legal proceedings such as the claims before this court.

Finally at paragraph [22] he highlights the unwillingness of the claimants to back up their letter writing campaign with legal claims:

One odd thing is that if tens of thousands of letters have been sent threatening legal action, where are all the legal actions? The Patents County Court is clearly an appropriate court to bring a claim against an individual for copyright infringement and yet there are only 27 cases pending. Surely out of 10,000 letters it cannot be that only 27 recipients refused to pay.

Unfortunately this is unlikely to be the last we will see of the practice of volume litigation, for as Judge Birss noted himself (at [100])

The information annexed to Mr Batstone’s letter refers to ACS:Law having “recovered” £1 Million. Whether that was right and even if so whether it was solely in relation to Media CAT or other file sharing cases I do not know. Simple arithmetic shows that the sums involved in the Media CAT exercise must be considerable.10,000 letters for Media CAT claiming £495 each would still generate about £1 Million if 80% of the recipients refused to pay and only the 20% remainder did so. Note that ACS:Law’s interest is specifically mentioned in the previous paragraph because of course they receive 65% of the revenues from the letter writing exercise. In fact Media CAT’s financial interest is actually much less than that of ACS:Law. Whether it was intended to or not, I cannot imagine a system better designed to create disincentives to test the issues in court. Why take cases to court and test the assertions when one can just write more letters and collect payments from a proportion of the recipients?

Freedom of Information in the WikiLeaks Era

2011-02-02T01:03:00.000-08:00

Sorry for the long silence. I have been busy though and more frequent posts should follow. I have a couple of upcoming seminars/symposia which like this one I will post on after the event. On Friday I'm speaking at the TILT/Academie voor Wetgeving Symposium "Regulation by Technology" in The Hague and on 23rd February I'm speaking at the UWE event "Cloud Computing: Legal, Organisational and Technological Issues".

This post though is about an event I attended on Monday evening. the rather excellent BIICL debate on Freedom of Information in the WikiLeaks Era. Surrounded on all sides by expert ex tempore speakers, and given that as an academic I can only speak in 50 minute blocks I decided to write down my talk in advance. It was still a little long so thanks to Joshua for allowing me a degree of freedom. Those of you there on the night heard an edited version to get it (nearly) to 10 minutes. Below is the full unedited version.

Freedom of Information in the WikiLeaks Era – The Need for Balance

Introduction

I am pleased to be here tonight among a panel of expert commentators. I believe the role of the academic on occasions such as this is to provide the broader viewpoint that is afforded by the freedom of not having to support either a client viewpoint or a professional one. Although all the panellists tonight are speaking a private capacity their views are always going to be the product of their experiences and one of the vital roles of academia is academic freedom to explore the unsaid and sometimes unsayable. Thus I start, I suspect from a radically different position to the many of the others on the panel.

My starting point is Wikileaks is bad for democracy, bad for freedom of information and generally an example of the type of behaviour in the information society which fails to comply with socially normative behaviour outside of a small self‐referential grouping as predicted by Cass Sunstein in his book Republic.com. With my position clearly set out I should say I will also try to position myself within the panel but of course at the time of preparing this I had not had the benefit of the presentations of the other speakers – hence why I have no doubt been scribbling notes in the margins during the preceding presentations.

Wikileaks, Cablegate and Freedom of Information

Let me begin by turning to the two things which are at the focus of this evening’s event: the nature of Wikileaks; and the legal principles of Freedom of Information.

Wikileaks describes itself as “a not‐for‐profit media organisation [whose] goal is to bring important news and information to the public.” They employ a simple mechanic: “We provide an innovative, secure and anonymous way for sources to leak information to our journalists (via an electronic drop box).” The site then goes on to (in a very self congratulatory way) describe the value and importance of Wikileaks noting: “WikiLeaks has sustained and triumphed against legal and political attacks designed to silence our publishing organisation, our journalists and our anonymous sources. The broader principles on which our work is based are the defence of freedom of speech and media publishing, the improvement of our common historical record and the support of the rights of all people to create new history. We derive these principles from the Universal Declaration of Human Rights. In particular, Article 19 inspires the work of our journalists and other volunteers.”

Let’s step back for a minute and look at how Wikileaks works. Material is placed in their care (anonymously); Wikileaks then investigates that material to check veracity and accuracy. Then assuming the material passes these tests it will be published usually alongside a journalistic article about the material. Where does this material originate from? From anyone, anywhere globally, for as Wikileaks acknowledges: “we operate a number of servers across multiple international jurisdictions and we do not keep logs. Hence these logs cannot be seized. Anonymisation occurs early in the Wikileaks network, long before information passes to our web servers.”

With this in mind with whose legal norms apply? And whose social norms? Legally they are making use of what Post and Johnson called the “borderless nature of the internet”. As they indicated, as long ago as 1996, “Cyberspace radically undermines the relationship between legally significant (online) phenomena and physical location. The rise of the global computer network is destroying the link between geographical location and: (1) the power of local governments to assert control over online behaviour; (2) the effects of online behaviour on individuals or things; (3) the legitimacy of the efforts of a local sovereign to enforce rules applicable to global phenomena; and (4) the ability of physical location to give notice of which sets of rules apply.” This allows for an effect called regulatory arbitrage, where online organisations or even individuals may effectively absent themselves from the legal or social norms of any individual state (or even bloc of states) by the use of remote servers, mirrors and other tools.

Let us look at the role Wikileaks plays against this backdrop. Wikileaks claim they are a media organisation with free speech at their heart. It is of course trite to state that freedoms are won not given, and that freedoms are earned not expected. One of my favourite quotes is that found in the work of comic book artist Stan Lee “with great power comes great responsibility”, itself a reworking of the biblical quote “much will be required of the person to whom much is given” from Parable of the Faithful Servant

This is a statement media organisations must remember as they do not operate outwith legal or social norms. A UK‐based media organisation may make use of many tools to ensure that “publishing improves transparency”. They may make a Freedom of Information Request under the FOIA. Generally under s.1 of the FOIA: “Any person making a request for information to a public authority is entitled: (a) to be informed in writing by the public authority whether it holds information of the description specified in the request; and (b) if that is the case, to have that information communicated to him.”

Now of course we are well aware of a number of restrictions to this. For example under s.27 the information may be prevented from being released if “its disclosure under this Act would, or would be likely to, prejudice (a) relations between the United Kingdom and any other State, (b) relations between the United Kingdom and any international organisation or international court, (c) the interests of the United Kingdom abroad, or (d) the promotion or protection by the United Kingdom of its interests abroad.” Thus the Embassy Cables would probably have been exempt from a FOIA request in the UK. What about whistle‐blowing defences? The Public Interest Disclosure Act made amendments to the Employment Act 1996. This protects certain forms of disclosure where the employee believes illegal or harmful activity is taking place and where they fear victimisation or concealment of evidence by their employer. This is an extremely strict defence and usually requires the employee to speak to their employer, an external prescribed person (such as a regulator) or their legal counsel before public disclosure is justified. Wikileaks seems not to be a whistle‐blowing site in the traditional sense of the term as we would use it in UK legal normative language.

What is Wikileaks then in legal normative terms? It seems to me it is an Information Society Service Provider. In other words it is an online information provider. It is not (in my view and one I accept may be challenged by others) a media outlet. Why not? In my view a key characteristic of a media outlet is that it complies with legal and social normative principles: that is it submits itself to the courts in claims of defamation, invasion of privacy, copyright infringement etc. and to the necessary regulatory body – the PCC perhaps – in other matters. It seems to me that Wikileaks subverts both forms of regulation, legal and social‐normative by exploiting the regulatory arbitrage effect. Now, in the second half of my talk I will argue this is potentially harmful and damaging to society and we need to revisit this.

States and Privacy

We must start from the principle that there are no absolute freedoms. My right to privacy may be subverted in the interests of national security, or criminal investigation or to collect taxation etc. Similarly my right to free expression does not encompass a right to language likely to cause immediate harm – shouting “fire in a theatre”, which incites hatred or violence, which libels or which infringes another’s copyright. Sticking with these two “basic” rights – one of which Wikileaks brings to the fore and another it relegates to the background, we find that there is a natural tension between the two. Our right to free expression has a natural tension with our right to privacy – see Von Hannover, Campbell v MGN or Mosley v News Group Newspapers. The balance is struck in a democratic society by a mixture of legal and social norms with the preponderance of weight being on the legal norms. Social norms though do play a role: see for example the different way illegally obtained material is covered by the majority of media outlets. Material illegally obtained by the News of the World via phone hacking in breach of the Regulation of Investigatory Powers Act and the Data Protection Act is (rightly) vilified by columnists in popular newspapers; while material (probably) illegally obtained by Private Bradley Manning forms the focus of a widespread series of publications by a number of leading global newspapers and is lauded generally by press outlets – why? The only distinction seems to be the socially normative distinction – the first is not socially acceptable as it involves the illegal interception of personal communications while the second involves communications between states. Maybe as other panellists or audience members would like to point out this may be a legal normative distinction as under Art.8 of the ECHR “Everyone has the right to respect for his private and family life, his home and his correspondence.” i.e. the legal normative right is a personal right and not open to states‐actors.

Seven years ago I predicted exactly this issue would arise (at that time in relation to blogs and rolling news as I could not foresee then Wikileaks) when I wrote a paper entitles “Should States Have a Right to Informational privacy?”. We think of states as being non‐human actors. As such they do not benefit from traditional privacy rules designed to protect individuals, but is this so? The internet society is markedly different from days past where the Westminster Lobby or the Whitehouse Press Corps worked closely with government (admittedly often too closely) to protect the government from the full glare of scrutiny while policy was made and deals were done. Why do we protect individual privacy? The best work on this in my view is Alan Westin’s 1967 work “Privacy and Freedom”. Here he argues that “man’s need for privacy may be rooted in his animal origins”; “the animal’s struggle to achieve a balance between privacy and participation provides one of the basic processes of animal life. In this sense, the quest for privacy is not restricted to man alone, but arises in the biological and social processes in all life.”

Such a definition of privacy suggests that the need for individual and group privacy is a bio‐social function: in part a biological response to certain stimuli such as a reaction to bereavement or a precursor to procreation. Also it is societal: reflecting the social norms of the community, family and individual. As Westin says, “limits are set to maintain a certain degree of distance at certain crucial times in his life.” This definition seems to offer little scope for extending protection to non‐human actors such as States. As non‐biological actors, States do not possess the necessary biological element. This suggests it would require an accepted social norm, to extend privacy protection to States. Although historically there appears to be little demand to do so, it my contention that it may be time to reconsider our social contract with the State. As Westin himself had noted, there is a need for privacy protection to be offered to organisations as well as individuals. In particular privacy is necessary during the early stages of policy formulation, or in Westin’s terminology “their staging processes”. The danger is that with the changes to society brought about by the rise of the information society we may now not be affording the necessary level of privacy protection to State actors to allow them to properly carry out this staging process.

Prior to the advent of digital media, the relationship between the State and its citizens was well defined by a clear social contract. Representatives were elected to carry out the wishes of the public. These representatives were primarily scrutinised by other elected, and in the case of the House of Lords unelected, representatives. External scrutiny came from a variety of sources, all of which were to a greater or lesser degree in a symbiotic relationship with representatives. Primarily, this external scrutiny was effected by the Fourth Estate. Media organisations, be they print or broadcast media, employed lobby correspondents: the relationship between representatives and lobby correspondents being a closely defined one. If a journalist failed to respect the privacy of any representative, particularly a member of the government, sanctions would quickly follow. As editors had a duty to protect their lobby correspondents, they would often self‐censor any story which breached this relationship of trust. In this fashion the social contract was respected by both the State and the media. Secondly, a degree of information would be put into the public domain through publications such as Hansard and through official reports and papers. Such reports and publications, though widely available in public libraries, were little read. Expensive to buy, individuals wishing to read such documents usually had to obtain them through their library, frequently encountering a delay should the report prove popular. In effect these reports were mostly only read by two sets of interested parties. The first of these were journalists, who as already discussed were required to respect the privacy of representatives in order to cultivate access. The second were academics. Scholarly comment on government initiatives and policy implementation would in time follow from professors of politics, sociology, government and law. Such comment was though of little impact upon the privacy rights of the State for three reasons. Firstly, they were usually generated by reference to such publicly available documents as those discussed above: thus the data carried little privacy implications. Secondly, the extended time before publication of such reports usually meant that the “staging process” had long since concluded and finally, they were overwhelmingly comment written by academics for academics: the readership of such commentaries being on the whole extremely narrow.

The advent of the always on, digital society has blasted this social contract wide open. Maybe this is a good thing – the expenses scandal showed how the agreement had arguably got too cosy, but just because we can point to one positive example does not make a statement proven. The Wikileaks cables have arguable undone a considerable amount of goodwill and diplomacy. Wikileaks argues that “Publishing improves transparency, and this transparency creates a better society for all people.” Not necessarily. Publishing may lead to greater obfuscation. In future records may not be kept at all or may be “spun” to give a different impression should a leak occur. This we have already seen. In response to the “greater transparency” of 24 hour news the UK Government has employed more “communications directors” and staff and less civil servants. We know their names: Alastair Campbell, Charlie Whelan, Damian McBride, Andy Coulson. All are massively controversial individuals. All did the same job: spin the news to suit their masters. Spin is the natural response of governments to invasions of their privacy. Spin does not improve transparency. We cannot know what harm the cable gate issue may do. Already there is evidence it may have harmed a carefully nurtured position with Beijing over North Korea, more harm will undoubtedly have been done though. We should not publish because we can but because it is in the interests of society to do so. This means complying with legal and social normative principles.

In terms of the UK position I believe Wikileaks fails to comply with the former; its compliance with the latter is a matter for debate.

The International Community

2010-10-23T02:08:00.001-07:00

I realised on Wednesday night how truly International the Cyberlaw community is. There were five of us on the panel - one each from Australia, Canada, Ireland, Greece and the UK (Scotland) speaking to an international audience at one of England's leading universities. Cyberlaw truly is a global law subject.

A Bill of Rights for the Internet

2010-10-21T00:02:00.000-07:00

Last night was the UCL Student Human Rights Programme Annual Round Table and the topic was "Internet and E-Rights". I joined an interesting panel of Emily Laidlaw, Daithí Mac Síthigh and Stratis Camatsos to discuss net neutrality, privacy and social networks and the role of informational gatekeepers. The whole event was chaired by Ben Allgrove of Baker & McKenzie who did an excellent job of keeping the whole thing light and open to invite discussion. The purpose of this post though is to let those who weren't there last night to read my presentation on "A Bill of Rights for the Internet". Now I should say this is an aspirational plea I'm not saying it would be easy in any sense. But remember the words of John F. Kennedy "We did not choose to [do these things] because they are easy but because they are hard."

A Bill of Rights for the Internet

The famous essayist and philosopher George Santayana is probably best remembered for his immortal phrase: “those who cannot remember the past are condemned to repeat it”.

It is the claim of this short address that today we must remember and learn from that most tumultuous period in world history – the late Eighteenth Century. This was a period in which the rights of man became an active political rather than philosophical issue, when revolutions in France and the American Colonies (soon to be the United States of America) led to political discourse on civil rights and liberties and eventually in some cases the constitutional enshrinement of these liberties. It may be argued that today we take these rights and liberties for granted and that we no longer have to fight (at least in first world states) for basic civil liberties. Of course if one is not willing to fight for your rights you must accept you may lose them (witness the difference in approach between UK citizens facing cutbacks and French citizens in the same position).

In the next ten minutes or so I’m hoping to draw analogies between these developments and today’s framework of rights for Cyberspace, or rather the lack of such framework. It leads me to argue that a Bill of Rights for Cyberspace is overdue and should now be pursued as a matter of urgency.

The Birth of a Nation – The United States

Everybody knows the story of the birth of the United States of America. From the War of Independence (or rather the American Revolutionary War to give it its proper name) through the Congressional Congress, and eventually the signing of the Declaration of Independence on July 4, 1776 the United States was a country born out of conflict, or was it? Although the United States was born on the 4 July 1776, the modern constitutional, rights-based nation we see today was born some years later. It was on December 15, 1791 that the US Bill of Rights came into effect following its ratification by three-quarters of the States of the Union. I would imagine everyone in this room is familiar with the Bill of Rights – it is a series of limitations on the power of the United States Federal government, protecting the natural rights of liberty and property including freedom of speech, a free press, free assembly, and free association. It contained ten amendments to the original constitution:

Freedom of speech, religion, of the press, and of assembly; right to petition
Militia, Right to keep and bear arms.
Protection from quartering of troops.
Protection from unreasonable search and seizure.
Due process, double jeopardy, self-incrimination, eminent domain.
Trial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel.
Civil trial by jury.
Prohibition of excessive bail and cruel and unusual punishment.
Protection of rights not specifically enumerated in the Constitution.
Powers of States and people.

This I argue is the true birth date of the modern United States. Although the nation may have been formed in 1776 it is in 1791 (around the time the French Revolution was in full swing) that the concept of a rights-based society took hold with the first modern constitutional rights-based system (I realise I have ignored documents such as the Declaration of Arbroath and the Bill of Rights/Claim of Right in saying this but they were about Parliamentary Settlements and Representation not about the individual rights of man).

The Birth of a Space - Cyberspace

We can view Cyberspace much like the United States. A virgin territory which we may shape to reflect our values, culture and society: A global space, not a domestic space. In a mirror development in February 1996 the civil rights activist and EFF co-founder John Perry Barlow declared Cyberspace to be independent of traditional governments. In a hyperbolic statement he suggested that “Governments of the Industrial World [were] not welcome among us [and had] no sovereignty where we gather”. While Barlow’s declaration may have been somewhat premature it was a heartfelt plea from one of Cyberspace’s leading citizens to leave this space alone: while Barlow may not be spoken of in the same breath as Madison, Jefferson or Washington we can see a parallel in Barlow’s plea for independence of thought, assembly and government and the original Declaration of 1776. If it took 15 years to advance from the US Declaration of Independence to the defining moment in 1791 when the Bill of Rights was adopted we can see we are already falling behind should we seek to emulate these great visionaries of the past. A Bill of Rights for the Internet is not only due it is fast becoming overdue.

A Bill of Rights for the Internet

This raises two questions: (1) what work is currently being undertaken in this area? And (2) what should a Bill of Internet Rights contain?

The first question is of course easier to answer. Some countries have made significant progress, some some progress and some very little. Also there are some international developments which are still at an early stage. Probably the greatest development to date at a national level is to be found in Brazil. A very exciting project in Brazil sees the Ministry of Justice, in partnership with the Centre for Technology and Society from Fundação Getúlio Vargas engaged in a co-regulatory design process which aims to produce a Bill of Digital Rights. The collaborative debate is structured in two phases:
First phase (finished on December, 17 2009): based on selected topics, society had an open space to expose their opinion on principles that should become guidelines for Internet. During this period, the blog received more than 800 contributions, besides official reports of important institutions on the matter.
Second phase (underway): considering the opinions posted at the weblog, a draft bill proposition was written and is now submitted to a second round of virtual public debate. The goal is reaching a final document, which will then be submitted to National Congress for institutional appreciation and deliberation.

The draft Bill (in English) may be accessed online. It includes rights of access, technical stability, privacy, data security and education. It is an extremely well developed piece of draft legislation (although it would benefit greatly from redrafting). Other countries have developed a more limited approach to digital rights development and recognition. Following UN/WSIS calls for universal access to basic communication and information services made originally at the UN Administrative Committee on Coordination some countries recognise a basic right to access – such as Estonia (who has the oldest such recognised right, dating from 2000), France (in relation to the HADOPI Law the Constitutional court recognised this although the revised HADOPI law was allowed later to pass), Finland (Finland's Ministry of Transport and Communications has made 1-megabit broadband Web access a legal right) Greece (Article 5A(2) of the Constitution states “All persons have the right to participate in the Information Society. Facilitation of access to electronically transmitted information, as well as of the production, exchange and diffusion

thereof, constitutes an obligation of the State) and Spain (where from 2011 a right similar to the Finnish one may be found).

A cross-border initiative is also underway under the auspices of the Internet Rights and Principles Coalition. They have recently produced draft 1.0 of their Charter of Human Rights and Principles for the Internet which was presented to the 2010 Internet Governance Forum meeting on Wednesday 15th September in Vilnius, Lithuania. This draft shares some similarities with the Brazilian draft containing rights of access, data security and privacy but there are also clear differences such as language rights, gender equality rights and rights of the child not prevalent in the Brazilian version.

Drafting a Bill of Rights

What should go into a Bill of Internet Rights? Let’s look firstly at the two current draft Bills, the Brazilian and the Internet Rights Drafts.

Right	Brazil	IRGF
A Right of Universal Access	√	√
A Right of Accessibility		√
Data Security	√	√
Net Neutrality	√	√
Secure Data Transfers		√
Freedom of Expression	√	√
The Right to Peaceful Protest & Assembly		√
Freedom from Censorship		√
Freedom of Religion		√
Right to Personal Privacy	√	√
Right to Data Privacy	√	√
Right to Anonymity		√
Right to Consumer Protection		√
Right to use Encryption	√	√
Freedom from Surveillance	√	√
Right to Education	√	√
Right to Digital Inclusion	√	√
Gender Equality		√
Language Equality and Support		√
Freedom from Copyright Controls on Cultural Goods		√
Rights of the Child		√
Right to Participate in the Public Sphere	√	√
Right to Access Health Services		√
Right to a Fair and Unbiased Trial		√
A Respect for Pluralism and Multiculturalism		√
The Duty to Respect the Rights of Others		√
Free Enterprise and Competition	√
Protect Cultural Exchanges	√

Rights Common to both are:

A right of Universal Access, Data Security, Net Neutrality, Freedom of Expression, the right to Privacy (both personal and data), the right to use encryption for security purposes, freedom from surveillance, the right to education, digital inclusion and the right to participate in the public sphere. They both have a common theme of protected cultural exchanges and that may also be seen to be a shared “right”.

Beyond this the IRGF draft is much wider and in all honesty includes much that should not be in an internet bill of rights such as a Right to Access Health Services, a Right to a Fair and Unbiased Trial and the Rights of the Child. Looking at the two drafts I’m going to close by mirroring the original US Bill of Rights. Here are my ten “inalienable internet rights”:

No law shall be made which shall restrict the right of the individual to full and free access to the internet. This shall include laws which prevent universal access, allow for degradation of quality of access or which allow for access to be suspended without a full and fair hearing in accordance with the Universal Declaration of Human Rights.
The service level offered to each internet user shall be universal. There shall be no application of technical measures to affect the level of service offered. This includes packet prioritisation or limitations. The internet shall remain neutral as to content carried.
Each person has the right to inclusive internet access. This includes the right to access educational services and training on the use of internet resources and the right for persons of special access requires such as the physically or visually impaired to have a right of full access and participation.
The individual shall have the right to use the internet in private. This includes the right to object to monitoring of their activities and the creation of service logs.
The individual shall have the right to employ encryption technology in the pursuit of personal privacy and security of transmissions.
No information shall be created or retained about an individual without their permission or agreement. All information or data so created or stored must be stored securely and must only be processed in accordance with the permission of the individual data subject. Data is not to be passed on to third parties (including states parties) without either the permission of the individual or an appropriately obtained court order obtained in accordance with the principles of the Universal Declaration of Human Rights.
Each person shall have a right to roam the internet free from surveillance.
Each person shall have the right to freely express their views and opinions including religious opinions. This right shall not be abridged except insofar as these views cause harm to others and then only following appropriately obtained court order obtained in accordance with the principles of the Universal Declaration of Human Rights.
Each person shall have free and unfettered access to public informational resources including sources of law and precedent, government documents and consultation documents. Individuals will be allowed unfettered discussion of such resources and the state shall supply technical support in creating an environment for the free exchange of ideas and comments.
Individuals shall have a right of peaceful protest and assembly in the virtual sphere. This right does not include the right to cause harm to others.

This is my draft. Over to you all.

The CEOP Jim Gamble Affair

2010-10-06T03:34:00.000-07:00

I realise I am going to be on very unsteady ground here but I'm usually a straight down the middle guy who doesn't rock the boat so I'm going out on a limb with a slightly controversial piece here.

In the few days since Jim Gamble announced his resignation from his role as Chief Executive of the Child Exploitation and On-Line Protection Centre (CEOP) he has been accorded almost universal adulation by the British Media and has been followed out of the door by three other senior executives at CEOP. To believe the media Mr. Gamble was an irreplaceable hero who single-handedly protected our children from online harm. Here are a selection of stories from the last 48 hours.

"Top Abuse Boss Quitting Puts Kids in Danger" says The Sun; "Resignation A Sad Day" says BBC News; "Victim's Group Slams Home Secretary" says the Daily Mail and in this weeks most tabloid friendly collision of stories "Kate and Gerry McCann "Very Upset" at Resignation" says the Daily Mail natch. Now I'm not denying Jim Gamble was/is a man with a mission and a very laudable one at that. His aim is to prevent the abuse of children. This is something which is unarguable and inalienable. I though have met Mr. Gamble on more than one occasion (and more than two for the wags at the back) and there was something very undesirable about his methods and his message. In a cry that echoed back to the radical feminist cry "All Men are Rapists" Mr. Gamble in public speeches seemed to suggest that all men were paedophiles. The role of CEOP was to protect children at all costs from these almost primeval urges. He also seemed to be suggesting that only CEOP could fulfil this role in the UK. The view of many in industry and the legal profession is he was an empire builder who had a particularly narrow and skewed view of society and in particular the relationship between adults and children. I still have a marginal note I made at one of his speeches where I noted down "I am not a paedophile and I resent the implication I am because I happen to be a man."

I wasn't the only one less than happy with his methods. As the BBC profile of him (linked above) notes:

Gamble began to gain his reputation as the UK's foremost hunter of paedophiles, heading up Operation Ore, the UK's largest ever police investigation into who was viewing internet child abuse images.The operation identified over 7,000 suspects and led to more than 2,000 convictions but it proved highly controversial. There were criticisms that the net was hauling in too many innocent people and that some of those convicted had not viewed images of child abuse at all but were actually victims of identity theft.

The specialist press were even more direct. in January 2009 ISPs attacked his plans to pass on RIPA costs to ISPs (The Register) while in May 2007 a PCPro investigation revealed the flaws in Operation Ore in full. This is why I'm glad to see that The Register has yesterday put its head above the parapet to write the story "Internet Firms Welcome CEOP Chief's Exit". I agree with the comment that this offers a clean slate. The protection of children is one of the most sacred responsibilities of any society. The UK takes it particularly seriously and UK ISPs working with CEOP and local and national police forces have gone a long way to eradicating its production and distribution via the internet in the UK. It is the responsibly of us all to take things forward. Jim Gamble should be thanked for his work to date but we need to move forward in a more streamlined and co-operative form of regulation within this area.My two cents is that Jim Gamble was not the right personality to work with ISPs on the next stage - his form of management was well suited to the Wild West of the internet between 1995-2005. It is not as well suited to the modern internet.

Not a Good Week for Andrew Crossly

2010-09-30T04:47:00.000-07:00

Andrew Crossley, Principal of Volume Litigation Specialists ACS:Law (NB Link may be down for reasons which follow) has not had a good week. Fortunately for me though his bad week gives me the perfect case-study to illustrate many of the arguments I have made in both of my books and in many articles in recent years.

Let's start with who ACS:Law are and what they do. They are a volume litigation practice - for a full explanation of Volume Litigation see my Computers & Law article or these earlier Blog posts - here, here, here and here. In short it is a system of litigation in which a number of small claims for copyright infringement are bundled together in a way that makes the recovery of damages economical. Thus up to 20,000 IP addresses are captured using automated software which looks for pre-determined file names or content such as "Pinball Wizard" or "Ministry of Sound" on popular P2P sites. These IP addresses are then bundled together into a single Norwich Pharma application (actually this step will become redundant under the Digital Economy Act - A DEA request may be made instead) which requires ISPs to reveal the customer details of the individual assigned that IP address at the time in question. Using this data the firm representing the copyright holder (ACS:Law are the leading UK proponent following the withdrawal of Davenport Lyons) then sends out thousands of Part 35 letters offering to settle for a fixed sum of anything between £350 and £1000 per infringement. As many as 5000 letters may be sent at a time. As you can see if everyone paid £350 this would be £1.75m recovered for the minimal cost of paying for the IP address harvesting, one Norwich Pharma application and then a lot of stamps...

Unsurprisingly firms like ACS:Law attract a lot of ire. Many people like to categorise them as no better than organised criminals demanding money with menaces and many believe their scheme is a scam (see this forum discussion). It should first of all be made clear neither of these are true. What they are doing is completely legal and is not a scam. There is a separate question of morality but surely a lawyer's primary duty is to their client - this is what ACS:Law fulfils. If there is a question about the procedure on moral grounds this is something your MP should be looking in to. There are though massive problems with the procedure which I have written about extensively in my Computers & Law article. Generally though the main problem ACS:Law have is a public relations problem. People see them as bullying, inconsiderate and generally immoral.

Symbiotic Regulation in Action

In my 2007 book The Regulation of Cyberspace I introduced the concept of symbiotic regulation. The basic principle of this is that regulation is a two-way process (a symbiotic process) between the regulator and the regulatee, and that in Cyberspace where greater communications options are open to individuals, allowing for the formation of micro-communities, people would react of unjust forms of control or regulation through a number of methods up to and including civil disobedience. In my book one such case-study was the eBay Live8 tickets response where community members disrupted ticket sales even though eBay threatened to terminate their accounts. Now though I may have a better case study. The 4chan community has decided to take direct action against ACS:Law for what they see as immoral actions. An ongoing Distributed Denial of Service Attack DDOS has prevented access to the ACS:Law website for several days. This was being perpetrated in clear breach of s.3 of the Computer Misuse Act 1990 which carries the potential penalty of a ten year prison sentence. Thus to sum-up what ACS:Law were doing was legal what the 4chan community were doing was illegal. The point here though is not who is legally correct but the effect of civil disobedience. The 4chan community see ACS:Law as being morally bankrupt hence their actions. Last week Andrew Crossly inadvertently escalated the actions of 4chan from being a nuisance to a problem. The whole story is told by The Register - I hope they don't mind me quoting extensively:

The events of the past few days may come to mean that ACS:Law boss Andrew Crossley's comments in a brief phone conversation last Wednesday are remembered as some of the most ill-advised in internet history. When The Register caught Crossley on his mobile, he singled out ACS:Law for extra punishment. "It was only down for a few hours. I have far more concern over the fact of my train turning up 10 minutes late or having to queue for a coffee than them wasting my time with this sort of rubbish," he said. Posts on 4chan show this was all the encouragement members needed to redouble the attack.

In redoubling their efforts 4chan members came across the details of several thousands of individuals who have been or still are subject to a claim from ACS:Law. Mostly these were customers of Sky Broadband or BT, two of the UKs largest ISPs. Acting irresponsibly (but completely within keeping of the "mob" mentality that is so often prevalent in large scale civil disobedience actions) someone made this information available via The Pirate Bay. There is some dispute as to how this data entered the public domain ACS:Law claim it was illegally obtained by a "hack" in breach of s.1 of the Computer Misuse Act 1990, 4chan claim it was left in an open directory by ACS:Law when they "made a bungled attempt to restart the site". It may never be clear which is true. What has happened though is that the UK Information Commissioner has launched an investigation of ACS:Law's security procedures which he feels may not have meet the requirements of the Data Protection Act and in particular Principle 7 that "appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data."

The outcome at this point in time therefore is:

(1) The ACS:Law site is still offline at this time.
(2) ACS:Law have been the subject of intense and unflattering media scrutiny
(3) Their clients have similarly been subject to scrutiny in the media and the blogosphere
(4) They are subject to an Information Commission investigation.

Remember, as the law currently stands ACS:Law were doing something legal, 4chan something illegal. Despite this the major winners seem to be 4chan and others campaigning against ACS:Law. The major losers ACS:Law - This is the lesson of symbiotic regulation!

Shamelessly Stealing from Mathias Klang 2

2010-08-11T09:19:00.000-07:00

More from the excellent Sound & Fury blog.

How Google Works

Just click on the below image to blow it up to a readable size.

Shamelessly Stealing from Mathias Klang 1

2010-08-11T09:16:00.000-07:00

I always read Mathias Klang's blog Sound & Fury and so must you all. The following are to recent posts that everyone should read so I'm reposting here (without his permission). Mathias I'm sure you don't mind...

What Universities Should Know (But Don't).

From XKCD

Net Neutrality Talks Fail - Evidence of "Free Market" Dominance

2010-08-09T04:37:00.000-07:00

On 7 September I'm off to a one day workshop on Net Neutrality in the UK. Well I say off but as it is being organised by the Department of Media and Communications at the LSE I'm not exactly going far. Net Neutrality is of course one of the current hot topics of Internet Governance apart from Chris Marsden's excellent book on the subject the debate has been raging across the blogosphere, in the media and in regulatory circles in recent months.

The focus of much contemporary debate is of course surrounding the FCCs Net Neutrality programme in the United States. As I wrote on 1 October 2009 FCC Chair Julius Genachowski clearly placed the Federal Government, through the guise of the FCC, on the side of mandated Net Neutrality in the US. Obviously such a position was never going to find favour with the right-wing, free-market position so favoured of the US free-marketeers. Thus almost exactly as Lawrence Lessig predicted in The Future of Ideas in 2001 (you can download the e-book version here under a CC Licence) a merging of carrier and content layer - the content providers and telcos - is starting to emerge and everyone is saying that the free market is the best way to regulate this.

The battle began in spring 2010 when a $1.4 million advertising campaign was launched by Americans for Prosperity (a Reaganite think tank and lobbying group); the National Taxpayers Union; the Free State Foundation and the Small Business and Entrepreneurship Council. This campaign claimed that "Washington wants to spend billions to take over the internet" and urged the public to help stop the "Washington takeover" - see BBC News. Of course as you may expect from this ragbag group of right wing radical thinkers the adverts were not neutral and were downright misleading claiming among other things that "The FCC wants to reduce the internet to an old-fashioned government-regulated utility."

Now I'm no strong supporter of mandated Net Neutrality and generally my approach has been to allow the market to develop before we start mandating controls. My main concern is that some previous US attempts to regulate such as the ill fated Dorgan-Snowe Bill would have made it all but impossible for telcos to deliver high quality high latency materials such as streaming video content such as IPTV or high quality voice content such as VOIP but equally I'm not someone who sees universal access at reasonable speed as some form of Internet Communism.

As generally a supporter of allowing the market to develop I find what I'm about to say a change in view. The movement epitomised by Americans for Prosperity - a movement who celebrated when Comcast won their famous victory in April 2010 against the FCC when the Court of Appeals for the District of Columbia ruled that the FCC lacked authority to censure Comcast for interfering with subscribers’ Internet traffic.

Now it looks like the free marketeers are getting their way and Lawrence Lessig's 2001 dystopian vision of a two tier internet is perilously close to realisation. Closed door meetings between the FCC, Telcos and Content Providers in Washington, begun in the aftermath of the Comcast decision, are reported to have broken up with no agreement. Around the same time Verizon and Google have been dealing with reports that they are near to announcing a deal which would see content carried at a higher speed for a fee (exactly as Lessig predicted). If implemented such a plan would lead to a two tier internet with access to the higher tier being decided by ability to pay. Both firms deny this is the case. Google stated that they remain committed to Net Neutrality; while Verizon stated that the New York Times article behind all the rumours was wrong.

Maybe it is all just hot air then.

But the very idea that major corporations such as these have the ability to strangle our internet access suggests a failure of regulation. This is where I change my position. The market only works if it is a regulated market - we've seen what happens when you allow markets to pursue profits at all costs - morals, judgement and society are lost in pursuit of the all powerful profit position. We need to move now to regulate the internet access and content supply markets. A failure to act now is something we may regret in years to come. Whereas 2001 (or even 2009) was too early to regulate this developing market it is now mature enough to withstand regulation and the time is now. Maybe internet access should be enshrined as a human right as is already the case in France and Finland and which around 80% of those polled suggested in March 2010 - see BBC. Maybe this right should be to a certain level of access and provision not just a generic access right.

Today we live in the information society. Access to information is as important to us as access to education, employment and social support mechanisms. If we do not act now the future may look like this.

Google Europe to Sell Trade Marks in Third Party Ads

2010-08-09T03:26:00.000-07:00

In a recent New York Times article it was reported that Google Europe will from 14 September 2010 allow advertisers to use trade marks they do not own in placing third party  adverts (or sponsored links in Googlespeak). This will extend to mainland Europe a policy that has been in place in the UK since 2008.

This decision was taken after the decision of the ECJ in March in Google France  v. Louis Vuitton Malletier (see also the opinion of Advocate General Maduro). Google believe that following this decision the practice of offering trade marks to competitors or even unrelated third party advertisers as a keyword which will trigger the display of their advertisement (or sponsored link) is now legal provided that the advertisement does not confuse the customer into believing the goods or services offered are somehow linked to the trade mark owner (this is broadly what Google France v LVM said.) To protect against the placement of confusing (or even straight out counterfeit) advertisements Google will create an internal reviews process (as is already in place in the US and UK) which will allow trade mark holders to complain about what they believe to be an abusive use of their trade mark. Google will then review the placed advertisement and if they find it to be in breach of Google's Terms and Conditions they will remove the advertisement. Given that the Google France ruling left considerable scope for trade mark holders to litigate future claims it must be imagined that this formalisation of the Google practice into policy will undoubtedly lead to further litigation.

Maybe Google felt emboldened to develop their activities in this area following another, more recent ECJ decision. This is the July 2010 decision in  in  Portakabin Ltd and Portakabin BV v Primakabin BV, a reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands).
Portakabin Ltd, who make and sell mobile buildings, own the Benelux trade mark "Portakabin". An unrelated company, Primakabin, sold and let new and second-hand mobile buildings, both its own and those made by Portakabin.
Using Google's AdWords referencing service, Primakabin chose the keywords ‘portakabin’, ‘portacabin’, ‘portokabin’ and ‘portocabin’, representing Portakabin's name and three popular mis-spellings of it. Originally, the heading of Primakabin’s ad, which appeared once one of those words was entered into the search engine, was ‘new and used units’. Later Primakabin changed this to ‘used portakabins’.

Portakabin sued Primakabin for trade mark infringement, seeking injunctive relief, but failed. The trial judge took the view that Primakabin did not use the word ‘portakabin’ to distinguish goods and wasn't gaining unfair advantage through such use: it was merely using the word ‘portakabin’ to direct interested parties to its website, on which it offered ‘used portakabins’ for sale. Portakabin appealed to the Gerechtshof te Amsterdam, which prohibited Primakabin from using advertising which contained the words ‘used portakabins’ and, in the event that it used the keyword ‘portakabin’ and its variants, from providing a link leading directly to pages of its website other than those on which units manufactured by Portakabin were offered for sale. However, since that court held that use of the keyword ‘portakabin’ and its variants did not constitute use in relation to goods or services, Portakabin appealed further to the Hoge Raad der Nederlanden. The Hoge Raad decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. (a) Where a trader in certain goods or services (“the advertiser”) avails himself of the possibility of submitting to the provider of an internet search engine [a keyword] … which is identical to a trade mark registered by another person (“the proprietor”) in respect of similar goods or services, and the [keyword] submitted – without this being visible to the search engine user – results in the internet user who enters that word finding a reference to the advertiser’s website in the search engine provider’s list of search results, is the advertiser “using” the registered trade mark within the meaning of Article 5(1)(a) of Directive 89/104 …?

(b) Does it make a difference in that regard whether the reference is displayed:

– in the ordinary list of webpages found; or
– in an advertising section identified as such?
(c) Does it make a difference in that regard

– whether, even within the reference notification on the search engine provider’s webpage, the advertiser is actually offering goods or services that are identical to the goods or services covered by the registered trade mark; or
– whether the advertiser is in fact offering goods or services which are identical to the goods or services covered by the registered trade mark on a webpage of his own, which internet users … can access via a hyperlink in the reference on the search engine provider’s webpage?

2. If and in so far as the answer to Question 1 is in the affirmative, can Article 6 of Directive 89/104, in particular Article 6(1)(b) and (c), result in the proprietor being precluded from prohibiting the use described in Question 1 and, if so, under what circumstances?

3. In so far as the answer to Question 1 is in the affirmative, is Article 7 of Directive 89/104 applicable where an offer by the advertiser, as indicated in Question 1(a), relates to goods which have been marketed in the European Community under the proprietor’s trade mark referred to in Question 1 or with his permission?
4. Do the answers to the foregoing questions apply also in the case of [keywords], as referred to in Question 1, submitted by the advertiser, in which the trade mark is deliberately reproduced with minor spelling mistakes, making searches by the internet-using public more effective, assuming that the trade mark is reproduced correctly on the advertiser’s website?

5. If and in so far as the answers to the foregoing questions mean that the trade mark is not being used within the meaning of Article 5(1) of Directive 89/104, are the Member States entitled, in relation to the use of [keywords] such as those at issue in this case, simply to grant protection – under Article 5(5) of that directive, in accordance with provisions in force in those States relating to the protection against the use of a sign other than for the purposes of distinguishing goods or services – against use of that sign which, in the opinion of the courts of those Member States, without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark, or do Community-law parameters associated with the answers to the foregoing questions apply to national courts?

In July the Court of Justice ruled as follows:

1. Article 5(1) of ... Council Directive 89/104 ... must be interpreted as meaning that a trade mark proprietor is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with, or similar to, that mark, which that advertiser has selected for an internet referencing service without the consent of the proprietor, in relation to goods or services identical to those in respect of which the mark is registered, where that advertising does not enable average internet users, or enables them only with difficulty, to ascertain whether the goods or services referred to by the ad originate from the proprietor of the trade mark or from an undertaking economically linked to it or, on the contrary, originate from a third party.

2. Article 6 of Directive 89/104 ... must be interpreted as meaning that, where use by advertisers of signs identical with, or similar to, trade marks as keywords for an internet referencing service is liable to be prohibited pursuant to Article 5 of that directive, those advertisers cannot, in general, rely on the exception provided for in Article 6(1) in order to avoid such a prohibition. It is, however, for the national court to determine, in the light of the particular circumstances of the case, whether or not there was, in fact, a use, within the terms of Article 6(1), which could be regarded as having been made in accordance with honest practices in industrial or commercial matters.

3. Article 7 of Directive 89/104 ... must be interpreted as meaning that a trade mark proprietor is not entitled to prohibit an advertiser from advertising – on the basis of a sign identical with, or similar to, that trade mark, which that advertiser chose as a keyword for an internet referencing service without the consent of that proprietor – the resale of goods manufactured and placed on the market in the European Economic Area by that proprietor or with his consent, unless there is a legitimate reason, within the meaning of Article 7(2), which justifies him opposing that advertising, such as use of that sign which gives the impression that the reseller and the trade mark proprietor are economically linked or use which is seriously detrimental to the reputation of the mark. The national court, which must assess whether or not there is such a legitimate reason in the case before it:

– cannot find that the ad gives the impression that the reseller and the trade mark proprietor are economically linked, or that the ad is seriously detrimental to the reputation of that mark, merely on the basis that an advertiser uses another person’s trade mark with additional wording indicating that the goods in question are being resold, such as ‘used’ or ‘second-hand’

– is obliged to find that there is such a legitimate reason where the reseller, without the consent of the proprietor of the trade mark which it uses in the context of advertising for its resale activities, has removed reference to that trade mark from the goods, manufactured and placed on the market by that proprietor, and replaced it with a label bearing the reseller’s name, thereby concealing the trade mark ; and

– is obliged to find that a specialist reseller of second-hand goods under another person’s trade mark cannot be prohibited from using that mark to advertise to the public its resale activities which include, in addition to the sale of second-hand goods under that mark, the sale of other second-hand goods, unless the sale of those other goods, in the light of their volume, their presentation or their poor quality, risks seriously damaging the image which the proprietor has succeeded in creating for its mark.

As has been widely reported a non-legalistic report of this case may be that the ECJ has ruled adwords do not infringe trade marks - see PC World or The Inquirer but this is not the case - as perhaps more accurately reported in The Register the true outcome of the Portacabin case is:

When choosing AdWords, unless the products and services of the trade mark owner and brand bidder can be clearly differentiated without the risk of internet users being misled then brand bidding will amount to trade mark infringement.

Thus Google may remain at the centre of this particular storm for some time to come.

UPDATE: Facebook Libel

2010-07-30T04:36:00.000-07:00

Mr. Bryce outside the High Court

A Staffordshire University Law student has been awarded £10,000 in damages after being falsely branded as a paedophile on social networking site Facebook.

The High Court heard how 24-year-old Jeremiah Barber uploaded a child pornography picture onto student Raymond Bryce’s online profile, commenting that he was “gay” and would “love” the image.

The incident occurred following a fallout between the pair over an £80 debt, owed by Mr Bryce. After obtaining a County Court order, Mr Barber then decided to besmirch Mr Bryce’s Facebook profile.

Despite taking down the offensive image within 24 hours, Mr Barber pleaded guilty to making and distributing an indecent image of a child at Stafford Crown Court. He was ordered to perform more than 100 hours community service and pay £1,200 in costs.

But Mr Bryce claimed that more than 800 people would have seen the image in that time, defaming his character and lowering him the eyes of others, while also subjecting him to possible violence. In a development of the previous "Facebook Libel" case Applause Store Productions v Raphael [2008] EWHC 1781, Mr Bryce told the court:

Jeremy Barber put a defamatory blog on Facebook and made me appear to be a paedophile with homosexual tendencies, neither of which is true. He did so with intention and malice.

When I viewed the pictures I was shocked because they were repulsive and disgusting and in no way reflected my attitude to life. I asked for an apology which I have not to this date received. The whole thing has been distressing, not only for myself but for my family.

Mr Justice Tugendhat agreed to award the law student £10,000 in libel damages for stress endured and any ensuing anxiety brought on by knowing that those close to him could have seen the offensive image. Mr Justice Tugendhat said:

This was not only defamatory, but a defamation which goes to a central aspect of Mr Bryce's private life as well as his public reputation. This post was deeply offensive to him, but also a cause for alarm. It is well known that people accused of being paedophiles may be subjected to serious violence, even when there is no basis for the accusation. Damages in libel actions are awarded as compensation, not as punishment, to vindicate reputation, to compensate for harm to that reputation and as compensation for injury to feelings.

This is not a surprising outcome given the facts. It may be described as a "slam dunk" case of libel but it is interesting to note that a slow trickle of these social network libel cases are now starting to make their way to the courts. The bottom line is simple. Anything you place onto either your Facebook page or that of anyone else is published in the UK (if it is accessible here) and is likely to draw the attention of the High Court. NEVER post anything defamatory.

iPhone 4 Update

2010-07-15T03:22:00.000-07:00

Well it seems Apple agree with my previous post. The iPhone 4 may not be of satisfactory quality under the Sale of Goods Act. Apple have announced that anyone who bought an iPhone 4 may return it within 30 days for a full refund waiving their usual restocking fee. Well that was the announcement but it seems not to be the case if you are a UK user. Pocket Lint has confirmed that in the UK the 14 day refund policy remains in place not the 30 day policy announced in a fanfare for US customers. If the phone is defective this is unlikely to meet the Sale of Goods Act's requirements. We may find out tomorrow what Apple think of the Phone's fitness for purpose. There is a Press Conference scheduled for 10am PDT.

EDIT: Of Course Apple announced their free case programme. Mine arrived this morning.

iPhone 4 - Hold it Right

2010-06-25T23:29:00.000-07:00

Not IT Law related but I had to say something about the iPhone 4 debacle. Apple's latest advice about a £500 product which drops connectivity if held in a certain way is "learn how to hold it properly or buy a £25 bumper case".

This sounds like the most incredible hubris. They say the phone is not defective and this is true of all mobile phones. I'm less sure a phone which doesn't work as a phone if held a certain way complies with the Sale of Goods Act 1979.

- Posted from my iPhone

The Ofcom Draft Code of Practice

2010-06-24T03:31:00.000-07:00

The proposed code of practice which implements legislative measures aimed at reducing online copyright infringement has been published by Ofcom, as part of its new duties under the Digital Economy Act 2010.

The Act requires that the code of practice is implemented no later than eight months from Royal Assent, including approval from the European Commission.

Subject to consultation and approval, Ofcom expects the code to come into force in early 2011.

The draft code sets out how and when Internet Service Providers (ISPs) covered by the code will send notifications to their subscribers to inform them of allegations that their accounts have been used for copyright infringement.

In passing the Act, Parliament’s intention was that Ofcom should apply the obligations in a proportionate way, with the code initially covering only the larger fixed-line ISPs, but with the clear message that, should levels of copyright infringement on other networks, including mobile, increase then those ISPs will similarly be required to comply with the obligations.

Ofcom proposes, therefore, that fixed-line ISPs with over 400,000 subscribers will be covered initially. This would mean that the seven largest ISPs – BT, Talk Talk, Virgin Media, Sky, Orange, O2 and Post Office – will be covered by the code from the outset. Ofcom proposes to regularly review evidence of online copyright infringement across all service providers and to extend the scope of the code if appropriate.

The code also sets out the threshold for including subscribers on a copyright infringers list which must be compiled by ISPs. ISPs will have to record the number of notifications sent to their subscribers and maintain an anonymised list of alleged serial copyright infringers.

Copyright holders can then request information on this list and pursue a court order to identify serial infringers and take legal action against them.

Ofcom is proposing a three stage notification process for ISPs to inform subscribers of copyright infringements and proposes that subscribers which have received three notifications within a year may be included in a list requested by a copyright owner. Ofcom will establish an independent, robust subscriber appeals mechanism for consumers who believe they have received incorrect notifications, arrangements for enforcement and dealing with industry disputes, as well as sharing the costs arising from the code.

The code of practice forms part of a wider set of industry activity to tackle online copyright infringement including consumer education, the promotion of lawful alternative services and targeted legal action against serious infringers. Ofcom intends to monitor how these develop and will report regularly to Government on both the effectiveness of the code and on the additional measures.

Click here to read the consultation which closes on 30 July 2010.

YouTube Wins Viacom Case

2010-06-24T03:20:00.000-07:00

Sorry for the long silence it's the marking season. News today from the US that YouTube have successfully obtained a summary judgement dismissing the Viacom $1bn copyright infringement lawsuit - see Google's official announcement here, the summary judgement may be read here.

Judge Louis Stanton of the SDNY granted Google/YouTube's application after finding that YouTube and its parent Google had complied with the 'safe harbour' requirements of the Digital Millennium Copyright Act. The ruling strikes down Viacom's $1bn legal action against YouTube, which the media firm had accused of profiting from the trade in pirated videos of Viacom TV programmes.

Viacom alleged in early 2007 that Google had allowed hundreds of thousands of Viacom-owned video clips to be posted to the site, and had generated advertising profits from the video traffic. The case was among the largest of YouTube's remaining legal battles, and had recently turned ugly when the two firms accused each another of blackmail and fabricating copyright infringement cases.

In making the official announcement of the outcome Google vice president and general counsel Kent Walker stated: "This is an important victory not just for us, but for the billions of people around the world who use the web to communicate and share experiences with each other. . .We are excited about this decision and look forward to renewing our focus on supporting the incredible variety of ideas and expression that billions of people post and watch on YouTube every day around the world."

Viacom confirmed that it will appeal against the decision. "YouTube and Google demonstrated that tools to limit piracy are not impossible to find or even that difficult to implement," said Viacom executive vice president and general counsel Michael Fricklas. "They fixed the problem of rampant piracy on YouTube after Viacom filed this lawsuit. Before that, however, YouTube and Google stole hundreds of thousands of video clips from artists and content creators, including Viacom, building a substantial business that was sold for billions of dollars."

Amazon catches up

2010-05-20T04:49:00.000-07:00

Amazon finally catches up with high street competitors! Information Technology Law: The Law and Society now IN STOCK http://amzn.to/bYrV4t.

The 100th Post

2010-05-18T04:26:00.000-07:00

Well this is the 100th post to this blog. What should one cover in reaching their Century. I suppose obviously I should congratulate England on their 20/20 World Cup win. That's where centuries are usually celebrated. But how does an IT Lawyer celebrate their century? I guess by sweeping up all these things that have been happening but I haven't recorded on this blog.

Twitter Bomb Threats

Firstly there is the madness of the tale of Paul Chambers. Paul could have been any one of us. A 26-year old frustrated traveller sitting in an airport wondering when, or even if, his flight would take off. It was the 6th of January and bad weather was sweeping the country. His flight was delayed and out of frustration he tweeted his friends and followers - "Crap! Robin Hood Airport is closed. You've got a week... otherwise I'm blowing the airport sky high!"

Now obviously there was no harm in this - IT WAS A JOKE. At the time nothing was said but a few days later the posting was noticed and passed on to the managers at Robin Hood Airport. They were concerned enough to inform the police. The police you might imagine would say - what a silly fellow and laugh it off. Oh No! they investigated and handed the file over to the CPS for further action. Paul was arrested and questioned on suspicion of making a "bomb hoax" under s.51 of the Criminal Law Act 1977. The CPS decided they didn't have enough evidence to charge Paul under that provision but went ahead anyway with a prosecution under s.127 of the Communications Act 2003. Following some initial bad advice Paul pleaded guilty but then vacated this plea following better advice.

His hearing was on the 10th of May and there he was found guilty. The outcry has been exceptional. Stephen Fry has offered to pay his fine and costs (which add up to £1000) while comedian Richard Herring suggested a fund-raising site be set up. Such a site was subsequently set up and raised £3000 in just over 24 hours. Paul has indicated he will appeal this decision. We all with him good luck. Final comments on the decision come, of course from the twittersphere:

EvilJimKirk said: "This is a hell of a way for me to learn what "civil liberties" actually means #twitterjoketrial."

Jamesdevonport tweeted "What a total outrage the #twitterjoketrial is, shows you how we have let draconian big brother style laws take over."

Google Oopsies again.

Now I don't think Google are evil. but every time I think they seem to be the most accident prone company in history they have another accident. Their latest one is to accidently collect private data sent over unsecured network connections by their Streetview cars. It seems Google were collecting data about WiFi hotspots to map them on Google Maps with a view to perhaps using that data as a location tool in software such as Latitude. In so doing they sampled an amount of the data being transmitted (Why?) and this was stored alongside other Streetview data. Now there seems to be no reason to suspect this is anything other than an oversight but it adds to Google's poor track record in securing personal data. It is clearly in breach of s.1 of the Regulation of Investigatory Powers Act 2000 which leads one to assume Google will be doing everything in their power to co-operate with the authorities over this one.

Facebook Loses Face

Meanwhile competitor Facebook had an emergency meeting in its San Fransisco headquarters on the 13th of May to discuss its privacy safeguards following a campaign called "Kill your Facebook" led by activists concerned about the lack of true user privacy control in the FB environment. Although Facebook deny the meeting was called in a direct response to the campaign it is clear that FB are concerned about the issue and well they might with Facebook recording they have over 400million users it is the largest single repository of personal data in human history. They have a responsibility not just to their users and to the company but to society at large - Facebook has become a quasi public good.

Buying the Book

2010-05-18T03:46:00.000-07:00

For some reason I can't quite fathom Amazon are extremely slow in updating their website when books are first published (unless of course they are by JK Rowling, Stephanie Meyer or Stieg Larsson). The Amazon page for Information Technology Law still reads "This title has not yet been released" - which is no longer accurate. If you want to buy the book - and let's be honest who doesn't you may want to try their competitors Blackwells and Hammicks both of whom say they have the book in stock.

Exam Marking Approaches...

2010-05-12T04:22:00.000-07:00

My life in a few weeks time...

INFORMATION TECHNOLOGY LAW: THE LAW AND SOCIETY OUT TOMORROW !!!

2010-05-12T01:33:00.000-07:00

I have just heard from my publishers that Information Technology Law: The Law and Society will indeed hit the shops tomorrow!

I'm hoping to get it on the reading list of many UK (and international) IT Law courses. It is seen by OUP as the natural successor to Lloyd: Information Technology Law (that it why it was commissioned). Academics considering adopting the book for their course can order an inspection copy from OUP. Full details of the book and the link to the inspection copy ordering service are at the OUP catalogue entry.

The book is supported by an OUP Online Resource Centre with audio and text updates, a flashcard glossary and by this blog. I genuinely believe this is a different sort of IT Law textbook from those which have gone before it such as Lloyd, Reed, Bainbridge and Rowland and MacDonald. It has a common thesis throughout that intangible digital information challenges a legal settlement based upon physical tangible and rivalrous property. It represents the accumulation of all my knowledge over the past fourteen years and I'm hoping to find a receptive audience amongst students and teachers. If you get a copy let me know what you think. There will (unless it bombs) be a second edition in three years time so that will give me the opportunity to remedy any omissions and correct any errors I may have made.

Andrew

To Keep Abreast of Developments When Revising

2010-05-12T00:41:00.000-07:00

At the LSE revision season is now in full swing with exams starting in a couple of weeks. I have been asked on several occasions by students how to keep abreast of all the new developments in IT Law once formal teaching ends. To assist with this here is a list of the more common news and blog sites that I read on a regular basis to keep me up to date with developments in the UK and further afield.

News Sites
The Register - a UK based tech news service with a specialist law section - here.
Out-Law - a news portal provided by law firm Pinsent Masons - here.
SCL News - a news service from the Society for Computers and Law - here.
Wired News - international news from Wired - here.
Law Society Gazette - general law news sometimes has IT related stuff - here.
Law Technology News - a US site more about technology in practice - here.
The Guardian - the UK newspaper has both a Guardian Tech site and a Law site.
BBC Technology News - you really can't beat the Beeb - here.

Blogs
SCL Editor's Blog - A blog from Laurence Eastham the Editor of Computers & Law magazine - here.
Technollama - from Andreas Guadamez at the University of Edinburgh - here.
Wrote - from Mathias Klang at the University of Gothenburg - here.
IT Law in Ireland - from TJ McIntyre of University College Dublin - here.
PanGloss - from Lilian Edwards of Sheffield University - here.
Chris Marsden - of Essex University - here.
Cyb3rcrim3 - from Susn Brenner of Dayton Law School - here.
French-Law.net - French Technology Law news in English from a PhD candidate at Edinburgh University - here.
Lex Ferenda - from Daithí Mac Síthigh of Norwich Law School - here.

Along with all the usual library tools this should see you through the revision period.

Jurgen Habermas and the Digital Public Sphere

2010-05-11T03:53:00.000-07:00

In chapter twenty I discuss the likelihood of the development of the Digital Public Sphere drawing heavily on the work of German philosopher Jurgen Habermas. There I suggest that the Digital Public Sphere may offer an alternative form of public sphere

One where political discourse may more freely be exchanged between the proletariat and the bourgeois, and one where thanks to the pseudonymity offered speech is less susceptible to chilling effects. This attractive prospect has encouraged many academics to discuss the ‘virtual public sphere’ as an extension of Habermas’s original public sphere.

I note though that the existence of a Digital Public Sphere is challenged and may not be assumed:

In a debate which mirrors the wider regulatory debate between cyberlibertarians and cyberpaternalists others argue that the design of cyberspace may restrict participation in the online environment. Thus, as with many other online freedoms we fi nd that participation in the virtual public sphere rests on a knife edge as many of the threats discussed earlier in this book: threats to freedom of expression and discourse, access, and privacy risk a lack of public confi dence in the security of the virtual public sphere and in the freedom to take part in unfettered democratic discourse offered by the information society. This is not to say that the contribution the information society makes to the public sphere is to be ignored, or even undervalued. It affects our understanding of several areas of online activity.

I did not imagine that before the book was on the shelves the famously reclusive philosopher would discuss these issues in a newspaper interview but on Saturday 1st May the Financial Times published an interview with Habermas which discussed his view on some though not all aspects of the Digital Public Sphere. The interview was promulgated by the Twitterjacking of Habermas's identity by a 140 character imposter who tweeted such entries as:

It's true that the internet has reactivated the grass-roots of an egalitarian public sphere of writers and readers.

This (and other) tweet(s) sent is/was taken from the footnotes of Habermas's 2006 paper Political Communication in Media Society: Does Democracy Still Enjoy an Epistemic Dimension?.

It is reported that Habermas was irritated by this stating: "It irritated me because the sender's identity was a fake." In asking him about this incident journalist Stuart Jeffries got Habermas to discuss more widely the Digital Public Sphere. Some choice quotes from the article include:

The internet generates a centrifugal force. It releases an anarchic wave of highly fragmented circuits of communication that infrequently overlap. Of course, the spontaneous and egalitarian nature of unlimited communication can have subversive effects under authoritarian regimes. But the web itself does not produce any public spheres. Its structure is not suited to focusing the attention of a dispersed public of citizens who form opinions simultaneously on the same topics and contributions which have been scrutinised and filtered by experts.

As regards its impact on the public sphere, accelerated communication opens up entirely new possibilities for organising activities and for large-scale political mobilisations of widely dispersed addressees. I still receive at least one e-mail per week from Obama's election team. These communications refer to issues and events within the political system, which they in turn influence. However, they remain contingent on their relation to the real decision-making processes that take place outside the virtual space of electronically networked monads.

Where does this leave us? Well Habermas seems to suggest the web is too chaotic to provide a functional public sphere - in this sense he is echoing Sunsetin's balkanisation arguments. He also seems to be rejecting the cyberlibertarian argument that the online society represents a "place" separate to off-line society. It should be noted that he does not reject the idea of global civil society later in the interview he says

Today we need institutions capable of acting on a global scale. We can see that the noble resolutions of the G20 summit in London on stockmarket oversight and regulation of the financial markets remain empty words without worldwide political co-ordination. The tentative measures undertaken by individual national governments in this area are condemned to failure for obvious reasons.

Thus it seems it is more the system of digital communications that Habermas rejects rather than the idea of global civil society. Therefore is the problem that there is no online culture and society as suggested by numerous commentators - Sunstein included? Is the web merely a cacophony of noise never a community choir? Far be it from me to suggest that one of the greatest philosophers of the 20th century has it wrong but maybe there is something in that statement. Do we now need to think of Habermas as a 20th Century philosopher - not a 21st Century one? Habermas is now eighty and was sixty when the web was created. Maybe he's not the person to pronounce on its abilities to host a truly new form of public sphere for as Douglas Adams observed:

Technology that existed when we were born seems normal, anything that is developed before we turn 35 is exciting, and whatever comes after that is treated with suspicion.

Database Law Update: Football Dataco v. Brittens Pools

2010-04-30T01:24:00.000-07:00

Chapter 11 (Databases) spends considerable time focussing on the two key ECJ database right decisions - the joined Fixtures Marketing cases and BHB v William Hill. Both were decided on the same day and dealt with broadly similar facts: sporting organisations created lists of sporting events/fixtures and then claimed a database right in these lists when betting organisations used these lists for gambling purposes. As we know the ECJ decisions in these cases were a blow for the sporting organisations making it difficult for them to gain licensing fees from the gambling organisations due to a very restrictive interpretation of Articles 7(1) and 7(5).

Following the BHB v William Hill line of cases there have been repeated attempts by sporting organisations to reclaim control over their fixture lists and similar. The latest in these long line of cases is Football Dataco Ltd & Ors v. Brittens Pools Ltd & Ors [2010] EWHC 841 (Ch) a decision of Floyd J. handed down on 23 April. This decision represents an important development in the sporting databases/spin-off databases line of cases. The facts mirror the Fixtures Marketing cases very closely. The claimants are responsible for the creation of football league matches in Scotland and England. The first names claimants being the commercial rights holder - i.e. the company set up by the footballing authorities to license and sell the contents of the fixtures lists. The defendants were all gambling organisations that used the fixtures list without license mostly to create football pools coupons.

The creation of a football fixtures list is rather complex with a number of rules being applied. These include:

No club shall have 3 consecutive home or away matches (i.e. no HHH or AAA);
In any five consecutive matches no club shall have four home matches or four away matches (e.g. AAHAA) is not permissible;
As far as possible, each club should have played an equal number of home and away matches at all times during the season;
All clubs should have as near as possible an equal number of home and away matches for mid-week matches.

This leads to a complex and time-consuming process of creating a "fair fixture list" and on this basis the claimants claimed for a number of IP rights including copyright in the fixture list; copyright in the fixture list as an original database under s.3(1)(d) CDPA and finally the sui generis database right. Floyd J. took each claim in turn:

He found that the fixtures lists were not covered by copyright law. The effect of the amendments made to UK copyright law in implementing the Database Directive were such as to distinguish the decision in Ladbroke (Football) Ltd v William Hill [1964] 1 WLR 273 when applied to databases. As s.3(1)(a) of the CDPA now specifically states:

“literary work” means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes a table or compilation other than a database.

it was inconceivable that copyright in the contents of a database could be extended beyond the s.3(1)(d) right. At [100] Floyd J. concludes:

It seems to me that the only way in which the Fixture Lists could conceivably attract copyright is by virtue of the collection and arrangement of the data contained in them, that is to say as a database. It follows that I do not see any scope for the subsistence of copyright by any other route.

What then of the sui generis right? Following the narrow interpretations seen in the Fixtures Marketing/BHB line of cases this is difficult to establish with spin-off databases. Floyd J. examined Reg.13 of the Copyright and Rights in Databases Regulations 1997 (SI 1997/3032) and found that the Fixtures Marketing decisions were squarely on point despite a brave attempt by counsel for the claimants that the ECJ had misunderstood the facts of how fixtures lists were created. Applying the Fixtures Marketing decision he found:

The burden of those decisions was that the claimants were involved primarily in creating the data, and that the extra effort (if any) in obtaining, verifying or presenting the data was trivial and not sufficient to attract the sui generis right. I reach the same conclusion on the evidence before me. The separate work which goes into obtaining, verifying or presenting the data in the Fixture Lists is trivial. The Fixture Lists are not protected by the sui generis right. at [92].

This left copyright in an original database under s.3(1)(d)/s.3A of the CDPA.

This protects databases that constitute the author’s own intellectual creation by reason of the selection or arrangement of their contents.

Football fixture lists are a spin-off database. Whereas a "standard" database would involve the selection and arrangement of pre-existing chunks of information - the makers of fixture lists also create the data (and therefore hold a monopoly over it). However Floyd J held that:

The selection or arrangement required by Article 3(1) is not confined to selection or arrangement performed after the data is finally created. The process of selection and arrangement of the contents of a database can and often will commence before all the data is created. I see no reason why selection decisions made about the contents of the database in the course of arriving at the final version should not properly be described as selection or arrangement. To cut out from consideration these selection decisions, merely because they occur whilst the database is being created, seems to me to be arbitrary, and conceptually fraught with difficulty. Nevertheless it is necessary to focus on skill and labour which is actually concerned with selection and arrangement, and to exclude that which is not. at [82].

The question then is "did the lists constitute the author’s own intellectual creation?" Floyd J determined that the requirement was "the author must have exercised judgment, taste or discretion (good, bad or indifferent) in selecting or arranging the contents of the database." at [86].How much of this would be required? Well Floyd J. says "Laddie, Prescott & Vitoria give examples of databases which would not attract copyright protection: a list of all Acts of Parliament in the last 100 years for example. . .On the other hand a collection of the author’s 1000 favourite poems would plainly pass both the quantitative and qualitative test." at [86].
What about the instant case - Floyd J. found that "there is undoubted selection and arrangement in the choice of dates and the decisions as to which match is played on which date." at [95] and as a result he awarded copyright to the database under s.3(1)(d).

This decision is already being hailed by the legal team behind the claimant's case but I feel this is a poor decision for everyone except the creators of spin off databases. The creators of spin off databases have a monopoly not only over the database but the data that goes into that database (being the originator of the data). Therefore unlike standard databases you cannot reverse engineer the database by gathering the data independently. This may lead to abuses of the kind seen in the Magill case. Now it may be said that where such abuses occur then following Magill competition law will intervene. But I have always read the Fixtures Marketing/BHB cases as a concious attempt by the ECJ to prevent overprotection by allowing spin-off databases to gain sui generis protection - this was a policy move to prevent the creation of monopoly control over such database contents. This case rolls this back and put us in the pre-2004 position (in fact pre-1997 position in the UK) that copyright will protect this lists of data created in the course of business. I assume the claimants will appeal. It may be the case that this goes all the way to the ECJ again this time for a ruling on Article 3.

You MUST read Terms and Conditions

2010-04-28T01:33:00.000-07:00

My previous post highlights the value of reading terms and conditions closely. The law will do much to protect the diligent citizen through provisions such as the Distance Selling Directive and Regulations and the E-commerce Directive and allied Regulations but if you do not read the terms and conditions of contracts you enter into and these terms do not clearly breach consumer protection provisions such as the Sale of Goods Act, the Unfair Contract Terms Act or the Unfair Terms in Consumer Contract Regulations then you WILL be bound by these terms and conditions.

The problem is that everyone just routinely clicks "I accept" without ever reading what they have just agreed to. Have you agreed that goods may not be returned if they are not faulty? Have you agreed to a waiver of liability? Have you agreed to sell a kidney or maybe even sell your soul?

Well 7,500 online customers did agree to sell their soul on 1 April 2010 when online retailer Gamestation changed its terms and conditions to say that anyone buying goods from its online store on the 1st April this year and not clicking on a link contained within them would forfeit their soul. That in itself is frightening what is more frightening is that this represented 100% of customers using the site that day - that's right NOT ONE PERSON OBJECTED TO THIS. As Out-Law explains

The new conditions said: "By placing an order via this web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul".

"Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions. We reserve the right to serve such notice in 6 (six) foot high letters of fire, however we can accept no liability for any loss or damage caused by such an act," said the terms. "If you a) do not believe you have an immortal soul, b) have already given it to another party, or c) do not wish to grant Us such a license, please click the link below to nullify this sub-clause and proceed with your transaction."

That link led the user to a page saying that the clause was an April Fool, congratulating the user of being "so vigilant" and offering them a £5 voucher.

As no-one claimed their £5 voucher we can assume no-one read the T&Cs. This seems to confirm the result of a previous experiment in which the makers of computer optimisation software maker PC Pitstop buried a clause in its end user licence agreement (EULA) offering money to anybody who read the clause and sent an email to the address within it. they found that only after four months and 3,000 downloads of its software did somebody finally emailed the address and claimed a $1,000 reward.

Terms and conditions of contract will not be overridden by consumer protection laws if they are not unreasonable or unconscionable. YOU MUST READ THE T&Cs. It may even save your soul.

IT Law in Action: Claiming a Eurostar Refund

2010-04-28T01:18:00.000-07:00

Sorry I have been away for so long. I had a short vacation then was doing some other stuff. By travelling Eurostar I saved myself from Ashmageddon but not from travel delays. Although my paltry 93 minute delay on my trip from London to Bruges was insignificant compared with those stranded with flight tickets but no flights there is still a matter of principle at hand.

My delay was caused by a failure of the signalling system on the High Speed One line between St.Pancras and the Tunnel. It was on Saturday 10 April when I was delayed and the delay was handled with the now infamous Eurostar efficiency. Endless announcements of no trains can leave St. Pancras at present await further announcements were made as the criminally under-resourced and small "departure lounge" at St. Pancras continued to fill. When we eventually arrived at Brussels the train manager told us to contact "Eurostar Traveller Care" to claim compensation and said no more.

This was my third Eurostar delay of more than one hour - in the first they told us our tickets would entitle us to a single Eurostar journey in the following 12 months. This we never used having to reason to travel to the continent in the next twelve months. The next time we were told nothing and in my indolence I did not claim. This time I was determined to get paid in cold hard cash.

Eurostar refunds in the form of cash rather than vouchers are notoriously hard to obtain. They prefer instead to offer a travel voucher to be used within 12 months. As usually only one leg of your journey is delayed this is 50% of the cost of s return trip meaning your "compensation" is the right to pay Eurostar more cash in return for (an admittedly cheaper) return journey in the future. If you do not wish to take this journey (as leisure travellers like myself often do not) it is a false economy and Eurostar saves a considerable amount of cash as vouchers expire. To find out how to receive a cash refund from the Eurostar website is almost impossible if you enter via the front page.I searched for "Traveller Care" and "Delay Repay" and on both occasions ended up at this page. I also noted this response was prominent in both search returns.

This seemed wrong a delay of over 60 minutes is I know entitled to at least a cash refund of 50% of the ticket price of the single journey or 25% of the return ticket price. I looked for the Eurostar Terms and Conditions and found them in the usual place at the bottom of the page. These led me to the little publicised Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on Rail Passengers’ Rights and Obligations - these guaranteed me a 25% refund in cash for my delay (Article 17(1)(a)) - a small victory but the £31.75 this came to more than covered the cost of the drinks etc. bought during our wait in St. Pancras and it would be cash rather than a voucher we would probably never use. I sat down and wrote my letter.

Seven days later a reply arrived. Yes Eurostar would pay my refund in cash (well cheque) and it would be with me within the next six weeks - this is actually in breach of Article 17(2) but until four weeks actually goes by and the cheque has not arrived they are still technically compliant. I can allow them a couple of weeks leeway.

So if anyone wants a cash refund for a Eurostar delay rather than a voucher refund then feel free to use my template letter. What has this got to do with a blog on IT Law - it proves the value of studying the laws and regulations of online transactions. I may only have been refunded £31.75 but this represents 95.5% of the price of Information Technology Law: The Law and Society on Amazon.co.uk. A better bargain cannot be found in the UK.

Publication News

2010-04-16T01:04:00.000-07:00

Latest News from OUP is they expect to publish Information Technology Law: The Law and Society on the 13th of May.

I hope you have ordered your copy....

Hey Liddle Liddle - The PCC and Blogs

2010-03-31T05:57:00.000-07:00

A couple of weeks ago I wrote about the excellent POLIS/PCC Social Media Expert Seminar. One of the issues discussed from the floor was whether the PCC should take action against online journalism using a social media setting - in particular publisher sanctioned blogs such as the excellent BBC or Guardian Blogs.

On Monday we had the first PCC adjudication involving a blog entry -Mr Oli Bird v The Spectator. The complaint involved a blog entry on the Spectator Blogsite entitled Benefits of a multi-cultural Britain - link here. In this the author well known columnist and commentator Rod Little noted that:

The overwhelming majority of street crime, knife crime, gun crime, robbery and crimes of sexual violence in London is carried out by young men from the African-Caribbean community.

A complaint was made to the PCC that this comment contained inaccurate information in breach of Clause 1 (Accuracy) of the Editors' Code of Practice. In Monday's adjudication the PCC upheld the complaint finding that:

The magazine had not been able to demonstrate that the "overwhelming majority" of crime in all of the stated categories had been carried out by members of the African-Caribbean community. It was difficult to argue that the sentence in question represented purely the columnist's opinion, which might be challenged. Instead, it was a statement of fact. As such ... the onus was on the magazine to ensure that it was corrected authoritatively online. It could not rely merely on the carrying of critical reaction to the piece.

In so doing the PCC found that The Spectator could not rely upon a defence that "the nature of a blog post is often provocative and conducive to discussion."

Where does this leave us? In Chapter 6 I suggest that a real concern of web 2.0 is that it becomes a cacophony of speech rather than a marketplace for speech. Everyone feels they can say whatever they want, whenever they want and they feel it is their right not to be censored and to address the world. This I note is in breach of Shaw’s principle that ‘Liberty means Responsibility’. As I note there to be allowed to speak in a public forum one must respect other members of that forum. The right to free expression should not be allowed to trump another individual’s rights such as their privacy or their right to security or to a fair trial.

For this reason I welcome the arrival of the PCC into this forum. If news organisations are to attach their name to the comments of their bloggers and to give them their imprimatur of authority they must accept social responsibility for these comments. It is not enough to say "we have a comments section" and "the forum is meant to be interactive and to provoke speech" - responsibility of speech is essential lest we end up with a cacophony of balkanised speech which is of no benefit to anyone.

UPDATE: Twentieth Century Fox v Newzbin

2010-03-30T00:39:00.000-07:00

A major new case on copyright and file sharing was handed down yesterday by Mr. Justice Kitchin. This is only the second UK case to examine P2P file sharing under the UK CDPA 1998 and follows the Oink! case in February - see prior entry.

The case in question is Twentieth Century Fox Film Corporation & Anor v Newzbin Ltd [2010] EWHC 608 (Ch) (29 March 2010).

The case is being widely reported in the media as a success for the Hollywood studios and the Motion Picture Association see e.g Screen Daily, The Daily Telegraph or PA, but this only tells part of the story

The claimants 20th Century Fox, Universal, Warner Bros, Paramount, Disney and Columbia, brought a suit in February seeking two injunctions against Newzbin, which describes itself as a search engine for content on Usenet bulletin boards. Yesterday Mr Justice Kitchin handed down a judgement that granted the studios one injunction, ordering Newzbin to stop offering access to copyrighted films owned by those studios. However, he denied the other injunction, which would have compelled the site to stop indexing all copyright-infringing material posted on Usenet, no matter who owned it, noting that:

I do not believe it would be appropriate to grant an injunction of the breadth sought by the claimants for a number of reasons. [135]

The decision sets an important precedent, as the case is the first to be brought by rights holders seeking an injunction under s.97A of the Copyright, Designs and Patents Act 1988.

Newzbin has a paid premium membership level that lets users search indexed content on Usenet. The site also provides a technology (an XML-based file format called 'NZB') that helps users download material from Usenet more quickly than would be otherwise possible. On Usenet, those who share copyrighted material do so by splitting up the binary files of that material into hundreds or thousands of fragments, each embedded in a separate message. The use of NZB files saves Newzbin users the trouble of manually locating and identifying each message.Kitchen J. noted that:

The reports in the Newzbin index provide a considerable body of very useful information in relation to each title. They include descriptive information, the URL and an NFO file which identifies the individual user who posted the content to Usenet, the email address of that user, information from which the date on which the content was posted to Usenet can be deduced and the number of files making up the particular work. [99]

Kitchin J. found Newzbin liable for infringing on the claimants' copyrights, for the films 27 Dresses, Atonement, 300, Cloverfield, National Treasure: Book of Secrets and Spiderman 3 in particular. He made this finding because Newzbin

has authorised the copying of the claimants' films; has procured and engaged with its premium members in a common design to copy the claimants' films; and has communicated the claimants' films to the public. [126]

In his judgement, Kitchin J. pointed out that the subcategories in the "movies" category on Newzbin were a strong indication of piracy.

I have found that the defendant has engaged in a deliberate course of conduct well knowing that the vast majority of the materials in the Movies category of Newzbin are commercial and so likely to be protected by copyright and that the users of Newzbin who download those materials are infringing that copyright. [128]

On this basis Kitchin J. said that he would therefore grant the injunction related to movies owned by the claimants and will consider what the precise terms of the injunction will be, including any necessary safeguards [129].

In their other injunction application, the movie studios asked the court to stop Newzbin from indexing "entries identifying any material posted to or distributed through any Usenet group in infringement of copyright" [133].

Kitchin J. turned down this request:

First, it is apparent from the terms of Directive 2001/29/EC that it is contemplating the grant of an injunction upon the application of rights holders, yet the claimants are seeking an injunction to restrain activities in relation to all binary and all text materials in respect of which they own no rights and about which I have heard little or no evidence. Second, I do not accept that the defendant has actual knowledge of other persons using its service to infringe all such rights. Therefore I am not persuaded I have the jurisdiction to grant such an injunction in any event. Third, the rights of all other rights holders are wholly undefined and consequently the scope of the injunction would be very uncertain. In my judgment the scope of any injunction under section 97A(2) should extend no further than that to which I have already concluded the claimants are entitled, namely an injunction to restrain the defendant from infringing the claimants’ copyrights in relation to their repertoire of films. [135]

Thus vitally Kitchin J. concluded by saying injunctions issued under s.97A should only stop a defendant from violating copyrights of films owned by claimants and could not extend any further. This is why it is more of a limited victory for the claimants not the complete victory painted by some media outlets.

Why Code Can't Replace Law

2010-03-29T02:17:00.000-07:00

For as long as I can remember I have been told that computers would one day take over most decision-making from humans as they are less prone to making poor decisions never get tired and will always be consistent. The theme of Chapter 22 is it is dangerous to assume as we enter a future environment of semantic decision-making agents and the internet of things that computers will always make fair or even logical decisions (of course with computers the decision will always have internal logic but not always external logic).

My worry is that the Code vs Law debate we saw in the first part of this Century - see Lessig's Code ver.2.0 will resurface but will not be restricted to a debate about online regulation, instead it will be extended to real-life controls as computers make decisions without access to contextualisation, external logic or reason. It is what I have entitled the Computer Says No dilemma after the Little Britain Sketch.

Today a story on the BBC News Site reinforces this with a plethora of computer failures based on the inability of machines to contextualise. The lead part of the story is that a Canadian history journal of some ninety years standing is changing it's name from The Beaver to Canada's History as it fell foul of spam filters which mistook it for a "specialist interest" magazine - something that should be of interest to the LSE student newspaper. The BBC then list a number of classic machine made errors - including the famous Scunthorpe problem of 1996 where Scunthorpe residents were banned from having AOL accounts by an automated obscenity blocker due to an obscenity contained within the town's name a problem later felt be residents of Peniston and Lightwater.

It follows it up with the Tyson Gay story.

In 2008, a news website run by the American Family Association censored an Associated Press article on the sprinter Tyson Gay. A filter decided that "gay" was an offensive word, which should be replaced with "homosexual". The resulting article began with the memorable headline: "Homosexual eases into 100m final at Olympic trials".

This is called a "clbuttic mistake". It occurs when filters replace rude words with what they deem to be more acceptable variants. "Butt" replaces "ass", "breast" is substituted for "tit", and so on, even within longer words containing the banned letter combinations. It is known as the "clbuttic mistake", because classic is edited as clbuttic, passport becomes pbuttport, and so on.

These all illustrate why despite Dave Lister's famous quote about his geography teacher Miss Foster (Google it) machines are not better than men and why it is important that if we do have a second code vs law battle on our hands we must give precedence to human knowledge and experience over computerised consistency and internal logic.

Case Study: Cash Gordon and the Computer Misuse Act

2010-03-29T01:44:00.000-07:00

An interesting Computer Misuse Act case study arose last week. As part of the phoney election campaign the Conservative Party launched a political speech site of exactly the type I predicted would arise in the 2010 election campaign in Chapter 6. The infamous site known as Cash Gordon (no longer live) was designed to highlight the Prime Minister's links to the Unite union. It encouraged supporters to earn 'action points' by reading, donating or tweeting about the campaign, which was built around Facebook Connect.

There were though several flaws in their plan. Firstly as the Guardian pointed out they used an "off the shelf" campaign page which was already being used by among others Hands Off which aggregates tweets against US healthcare reforms; Americans for the Military's petition against homosexuals in the armed forces; and the Heritage Foundation's attacks against carbon trading legislation. As the Guardian notes these are "All perfect right-wing bedfellows, but perhaps a little unseemly for the Cameron machine."

The bigger flaw though was not moderating Tweets with a #cashgordon hashtag. Anything tweeted with this hashtag would appear on the site - thus a number of tweets began to roll in from the helpful; to the slightly political and to the slightly (actually make this quite) rude.

So far so fun. The public sphere in action one may say - not sure this is what Habermas had in mind but it was political free speech (of a sort). But then the story takes another turn. Twitter users realise that the site operators have left the site open to new code instructions added by way of a #cashgordon hashtag. This type of attack known as a "Code Injection" attack (see the Wikipedia entry here) is a rudimentary attack on the code of a website placed by the attacker in an open code section of the site such as a comments box or a twitterfall feed.

Twitter users quickly started posting code in their #cashgordon tweets. The image at the head of this page is one such injection. This is a fairly harmless Rickroll but others were more inventive. Some linked to their own pages, others to the Labour Party while the inevitable porn links soon rolled in...Then the story got interesting.

It is reported that one user who exploited the #cashgordon loop was Jimmy Sparkle a web developer. For a short period he made Cash Gordon redirect to his Sparkle Interactive page. Compared with many of the redirects that afternoon his was quite uncontentious however later that afternoon he tweeted the following:

conservative party phoned my workplace claiming they may sue me for supposedly hacking their website... tweeting != hacking. lol #cashgordon

The full story of this is at the Liberal Conspiracy blog but the question for an IT Lawyer is who was right? If the threat had been made could the Conservative Party really press for a prosecution or is Jimmy Sparkle right when he writes "tweeting!=hacking. lol".

Now I'm sure there are a number of approaches the Conservative Party may wish to consider in raising a civil action under digital trespass (see Chapter 5.2) but as it is noted in the book at that point it is unlikely that a British Judge would find trespass had occurred unless repeated and/or harmful access had occurred which does not seem to be the case here. But a more interesting question is had Jimmy Sparkle breached the Computer Misuse Act 1990 (as amended)?

Since the 2006 amendments s.3 is widely drawn. In part it says:

3. (1) A person is guilty of an offence if:

(a) he does any unauthorised act in relation to a computer;

(b) at the time when he does the act he knows that it is unauthorised; and

(2) This subsection applies if the person intends by doing the act:

(a) to impair the operation of any computer;

(b) to prevent or hinder access to any program or data held in any computer;

(d) to enable any of the things mentioned in paragraphs (a) to (c) above to be done.

(3) This subsection applies if the person is reckless as to whether the act will do any of the things mentioned in paragraphs (a) to (d) of subsection (2) above.

Now it seems to me at least arguable that the actions of Mr. Sparkle (and all the other code injectors) is potentially an offence under s.3(2)(b) or s.3(2)(c). Therefore to answer Mr. Sparkle's tweet "tweeting!=hacking" or to be more precise tweeting malicious code to an open site to cause that site to redirect to another page and therefore prevent access to the site or impair operation of that site may be an offence under s.3 of the Computer Misuse Act.

TRADE MARK UPDATE: Google France Decision Published.

2010-03-24T05:16:00.000-07:00

The decision of the European Court of Justice in the Joined Cases C-236/08 to C-238/08 Google France SARL v Louis Vuitton Malletier SA was finally published yesterday morning. The decision may be accessed here and reflects widely the opinion given in September last year by the Advocate General.

Much has already been written about the decision- see e.g. IPKAT; Legal Bytes or The Guardian. It is not the intention of this blog post to provide substantive critical review of the decision that will no doubt follow in the usual academic journals. Rather this is an UPDATE post for readers of Information Technology Law: The Law and Society and for all students taking IT Law options at the LSE.

Google France v LVMH - The Referred Case

The facts of the case are set out in section 12.6.2 of Information Technology Law: The Law and Society (pp.320-322). There I noted that each reference involved the use by Google of trade mark terms in generating sponsored adverts in relation to keywords used in searches, such as adverts for eBay in relation to the search term ‘Vuitton’. In particular the claimants objected to Google listing their trade marks as trigger words to prospective advertisers: thus an advertiser seeking to promote her site selling designer handbags would be advised by Google to buy the trigger term ‘Vuitton’. At the heart of the case was a common question in all three references: ‘Is there the possibility of a trade mark infringement consisting in allowing the selection of keywords which corresponded to those trade marks, and in advertising sites offering identical or similar products.’

I also noted that in September 2009 AG Maduro, issued his opinion in the cases. He found that:

The selection by an economic operator, by means of an agreement on paid internet referencing, of a keyword which will trigger, in the event of a request using that word, the display of a link proposing connection to a site operated by that economic operator for the purposes of offering for sale goods or services, and which reproduces or imitates a trade mark registered by a third party and covering identical or similar goods, without the authorisation of the proprietor of that trade mark, does not constitute in itself an infringement of the exclusive right guaranteed to the latter under Article 5 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks.

In other words, the actions of Google in using a trade mark as a keyword trigger for a targeted advertisement does not constitute trade mark infringement unless there is some aggravating factor.

He goes on to explain that the actions of Google may be seen to be similar to comparative advertisement: Article 5(1)(a) and (b) of Directive 89/104 and Article 9(1)(a) and (b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark must be interpreted as meaning that a trade mark proprietor may not prevent the provider of a paid referencing service from making available to advertisers keywords which reproduce or imitate registered trade marks or from arranging under the referencing agreement for advertising links to sites to be created and favourably displayed, on the basis of those keywords. In the event that the trade marks have a reputation, the trade mark proprietor may not oppose such use under Article 5(2) of Directive 89/104 and Article 9(1)(c) of Regulation No 40/94.

At the time of writing though I warned that "this opinion should be treated with some caution as the full decision is yet to be published." Well now it has and it appears the Justices have broadly upheld AG Maduro's opinion.

The Decision of the ECJ.

The ECJ came to the following conclusions:

1. Article 5(1)(a) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks and Article 9(1)(a) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark must be interpreted as meaning that the proprietor of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with that trade mark which that advertiser has, without the consent of the proprietor, selected in connection with an internet referencing service, goods or services identical with those for which that mark is registered, in the case where that advertisement does not enable an average internet user, or enables that user only with difficulty, to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party.

2. An internet referencing service provider which stores, as a keyword, a sign identical with a trade mark and organises the display of advertisements on the basis of that keyword does not use that sign within the meaning of Article 5(1) and (2) of Directive 89/104 or of Article 9(1) of Regulation No 40/94.

3. Article 14 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) must be interpreted as meaning that the rule laid down therein applies to an internet referencing service provider in the case where that service provider has not played an active role of such a kind as to give it knowledge of, or control over, the data stored. If it has not played such a role, that service provider cannot be held liable for the data which it has stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser’s activities, it failed to act expeditiously to remove or to disable access to the data concerned.

What does this mean going forward?

Well essentially the Court found that Google doesn’t breach brand owners’ trade marks by selling protected keywords. At the same time though it suggests that internet information intermediaries may be secondarily liable for trade mark breaches in adverts if they knew of or had control over advert data. This suggests Google may have to more aggressively monitor the use of trade mark terms as Adword keywords.

More widely the ruling raises questions about whether Google will have to alter the business model as they currently store keyword ad content on its systems. This may potentially make Google liable for trade mark breaches if national judges find it plays an “active role” in creating the connection in the mind of the consumer - in effect Google may have to monitor adverts linked to searches for terms that are trade marked to avoid the risk that national judges will rule against it.

The Emergent Need for Law 2.0

2010-03-18T02:59:00.000-07:00

With most legal blogs currently focussing on the progress of the Digital Economy Bill - see e.g Pangloss or  The Symbiotic Web I have made a concious decision to stay out of this heavily populated area for the moment. Comment will come once the smoke clears and the Bill passes or preferably falls. I am of course lobbying my MP as everyone should.

Today's blog is about something completely different. Something with the capacity to effect our everyday lives in a way the Digital Economy Bill never could. In Chapter 22 I discuss what may happen when the digital world and the physical world meet. As we move towards the Internet of Things and we develop processes harnessing Augmented Reality and intelligent agents the digital and the physical will begin to merge. Simple examples available today such as nearest tube or the digital interactive table are extremely crude examples of what is to come but already the potential is there for all to see.

In class yesterday I discussed two simple examples where everyday socio-economic decisions would be effected by code-writers in the future world.

Example One: In car sat-nav devices often list nearest hotels or nearest restaurants. This list will not though necessarily contain a list of all the nearest restaurants only those who have paid for listing will be displayed. Thus your choice of restaurant is effected by the choice of the designer.

Example Two: The use of interactive tables in restaurants will allow for price discrimination. Restaurants may require the placement of a payment card on the table top to guarantee any goods bought. This card may be interrogated to tell the restaurant any number of things - am I local or a tourist? Am I a regular customer? Do I possess a gold or platinum card? Prices then may be altered so that visiting tourists with a gold card pay more than local regulars.

Computerised Quasi-Judicial Decision-Making

These examples pall into insignificance though when one compares them with computer-aided decision making in a quasi-judicial capacity. I suspect the biggest change in our lives will be greater employment of intelligent agents in CAD. CAD in itself is not problematic but it raises issues about discretion, autonomy and respect for the person.

The problem with CAD, especially in quasi-judicial decision-making is the "Computer Says No" issue. Often the operator has no discretion to override the programmed parameters which are a computerised interpretation of the legislative rules. I'm sure we've all been in the position where we feel disempowered by a CAD system - usually when booking a holiday or applying for a loan/mortgage. But imagine you want to claim incapacity benefit. Incapacity benefit is paid to persons with long-term medical conditions (physical or mental) who cannot undertake paid employment. After a short period on the benefit they will have an evaluation with a doctor. The doctor does not actually examine the patient only observes him or her while asking a long list of questions which are points-scored - see the questions and their scores here. In essence the decision is not made by the qualified physician with years of training and experience but by the computer: the physician is merely there to explain the questions to the claimant and to "code" their answers.

Why do the Department of Work and Pensions prefer this system? Well it's a safer bet for Judicial Review than allowing individualised decision making: it is not irrational as it follows the statutory system; it is not procedurally improper assuming it was properly encoded and it is not illegal. The CAD system is seen therefore as review-proof.

But is it fair?

That's the million-dollar question. It depends upon the program designer's interpretation of the law. It also depends upon the physicians ability to properly code answers. More worrying though is the use of less well proven technology. A story in this fortnight's Private Eye caught The IT Lawyer's eye. It reports that the DWP has spent £2.4m on lie detectors from Israeli manufacturer Nemesysco to be used to catch benefits cheats in Coventry, Birmingham, Harrow and Lambeth. The Eye and I can say little more about this as Nemesysco are suing Professors Lacerda and Eriksson of Stockholm University for a paper they published in the International Journal of Speech, Language and the Law which cast doubts on the accuracy of these devices. Fearing a libel writ of my own I will say no more than to repeat the assertion made by Lacerda and Eriksson:

although lie detectors are all well and good in the pages of science fiction books and comic strips the public ought to be worried when their governments started believing they could work in the real world.

Where does this leave us? My fear is that while we examine current problems like file-sharing and the Digital Economy Bill future technologies are being developed which may overtake our basic human rights and liberties. If the DWP will accept lie-detector results now given the widespread scientific concern over their accuracy what next? Will we stop at price discriminating table-tops or hotel promoting sat-navs? If we have RFID chips in our clothing or shoes will the DWP use these to measure how far applicants for incapacity benefit have walked in the previous week?

The key question is what will lawyers do about this? What will be Law 2.0? Why are we not discussing these things (there is currently no hard law on RFID anywhere globally). This is the call for that discussion to begin. both here and in Chapter 22.

The Polis PCC Expert Seminar: The Good, The Bad and the Ugly

2010-03-12T07:15:00.000-08:00

Had a very enlightening and lively evening at the LSE last night at the POLIS/PCC Social Media Expert Seminar. A wonderful panel including Stephen Abell (PCC); Janine Gibson (Guardian); Torin Douglas (BBC); Anna Doble (Wigin LLP) and the ever wonderful Ian Walden of QMU/PCC discussed the response of traditional media institutions to the rising challenge of social networking sites. The seminar discussed a number of case studies including Trafigura (of which more later); the Daily Express Dunblane story; Jan Moir and Stephen Gately and others.

The Good

There was much good news. Ian Walden spoke eloquently about the risks in particular to the privacy of children in social media sites and reminded the audience of the value and importance of the separate PCC guidelines for children. He also reminded us that often content on the web was made public by persons other than the person themself - for example tagging people in Facebook photos. He told a chilling tale of a senior partner with a major city firm of lawyers finding his signature by using a Google image search. Also Janine Gibson spoke of the value of social networkers in supporting media work as in Trafigura and challenged an assumption from Stephen Abell (see below) that privacy settings may be used as a proxy for public/private spaces. Torin Douglas discussed the problems that organisations such as the BBC have in ensuring their identity and authority are protected in social media settings.With the first official BBC Twitter accounts now being sanctioned for journalists Torin spoke of the care that BBC journalists have to take in giving something the official BBC imprimatur.

The Bad

Not everything which was said was positive. Stephen Abell suggested there may be a link between privacy settings and whether information had been published. He suggested a protected Facebook page may be seen as equivalent to a private space while a public page may be seen to be a social network equivalent of a pub discussion with less expectations of privacy. Others on the panel (primarily Ian Walden and Janine Gibson) took him slightly to task for this reminding the audience that not all users fully grasp the complexity of privacy settings and that individual privacy may be overrode by others (such as tagging a photograph). Janine suggested it must still be the user's expectation of privacy which must remain the primary consideration.

Caroline Kean spoke of the reticence of clients to pursue privacy actions given the high costs involved. It was not clear if she meant this to be a support of the self-regulatory PCC system which is of course free to use or not. Whichever it showed a failing in the legal protections.

The Ugly - Yours Truly Angry Mob

When the floor was opened up for questions TheItLawyer decided to press slightly further on the Trafigura affair and other Twitter affairs including Gately/Moir. He asked:

Whether the PCC or newspapers/broadcasters themselves need to consider a commitment to respect the rule of law. Traditionally never an issue due to the law's ability to protect itself social media and the internet are challenging this. In particular while agreeing with the outcome of Trafigura was it right for the editor of a national newspaper who was the subject of a legitimate court order (in law) to undermine the effectiveness of that order by giving the Twitterati a hint that something was up (while acknowledging the editor in question acted legally and morally).

The responses were truly disappointing. Janine Gibson unsurprisingly commented that the Trafigura Order was wrong morally and repugnant and that Twitter had performed a useful service. Caroline Kean said it was "Bad Law" and that Twitter had overcome this without the prohibitive costs of appeal which would usually put client's off while Jeremy Oliver (Ofcom) said you couldn't regulate the internet (hold on is that not at least in part Ofcom's job?).

Later when discussing the Moir/Gately affair later Stephen Abell said that the PCC couldn't take specific account of the number of complaints made about a particular article - they had to treat them in effect like a single complaint and decide whether the article broke the PCC code. The subtext was to do otherwise would risk mob rule.

BUT the Guardian/Trafigura affair was mob rule!

Alan Rushbridger may have acted within the confines of the law and may have acted in the moral interest in making what Janine Gibson called his gnomic tweet, but he knew the likely outcome was that the Twitterati (the mob) would defeat the court order - in other word mob rule defeats the rule of law.

This is extremely dangerous. Once the mob is unleashed it is very difficult to control. Trafigura may have been a managed mob for morally positive purposes: even the Moir/Gately mob may be seen to be broadly positive but there there is less clearly a moral imperative like it or not as the PCC said Jan Moir was entitled to her opinion - the Twitter campaign led by media personalities including Charlie Brooker and Stephen Fry led to the PCC receiving six years worth of complaints in 48 hours. Was this justified? Was this the absolutely worst column in six years and by that magnitude?

The implication was the media will handle the mob, the media will wield the mob for morally and socially good purposes but as any B-movie director can testify mobs get out of hand. Who knows where the mob may congregate next. But I say to any and all media organisations if you live by the mob you die by the mob as the Daily Mail found out. If you find the mob at your door with flaming torches and pitchforks don't say I didn't warn you.

The Digital Divide Recast: Twitter and Discourse

2010-03-10T00:35:00.000-08:00

In Chapter 20 I discuss at some length the concept of a Digital Public Sphere and the challenges of the Digital Divide. With the UK Election looming it seemed the ideal time to examine the impact of Digital Democracy. As a case study I decided to examine the effect Twitter was having in direct democratic involvement using the current Digital Economy Bill discussion (Twitter #debill) as a benchmark for Twitter's ability to individually empower.

The prospect of Web 2.0 empowerment is one which has been discussed at length for some time. I note in Chapter 20 that:

The internet seems to offer an alternative form of public sphere, one where political discourse may more freely be exchanged between the proletariat and the bourgeois, and one where thanks to the pseudonymity offered speech is less susceptible to chilling effects. This attractive prospect has encouraged many academics to discuss the ‘virtual public sphere’ as an extension of Habermas’s original public sphere.

This though does not capture the true complexity of Web 2.0 discourse though for as I note a little further on:

Although cyber-optimists believe the internet offers the best opportunity to date for citizens to engage in direct democracy though a number of channels ranging from the creation of online interest groups, through to direct engagement with politicians in online fora and Q&A sessions and ultimately to online voting and referenda, there is a group of cyber-pessimists who believe that ‘digital technology [is] a Pandora’s box unleashing new inequalities of power and wealth, reinforcing deeper divisions between the information rich and poor, the tuned-in and the tuned-out, the activists and the disengaged. This account stresses that the global and social divides already discussed mean that Internet politics will disproportionately benefit the elite.

I decided to carry out a short empirical study to test these hypothesis. I chose Twitter as it's push media system seems to afford the greatest opportunity for the individuals to address large groups as unlike the pull system of Blogs there is no requirement to attract the reader to your entry: your comment will when published be instantly pushed to your readers. Also Twitter is often famously cited as an effective form of online activism with examples such as the Guardian/Trafigura order or the Moir/Gately column. What is neatly forgotten in both of these though is the the trigger point in each was what you might call the Digital Elite - in Trafigura it was a cryptic comment by Guardian Editor Alan Rushbridger that marshalled the troops (without ever breaching or even bending the order), in the Gately case it was Twitter God Stephen Fry who sounded the call to battle.

Who then carries greater weight on Twitter: experts with years of experience and training or celebrities who broadly are part of the Digital Elite?

My methodology for my small-scale sample was simple. I found ten UK and ROI academics and lawyers who had tweeted on the Digital Economy Bill in the past week and compared their reach against five celebrity tweeters who had done the same. The academics and lawyers are all known to me and I can vouch for their credentials. The celebrities are no doubt known to us all: they are all politically active in some form although none are politicians. I will not name individual names except to say Stephen Fry was specifically exempted from the study given his preponderance to bias any study of UK Twitter. What I found was that the ten experts had a potential maximum audience reach (based on a sum of all their followers) of 2676 readers. In fact the actual audience will be much less as most people follow a number of these posters. This is an average reach of 267 readers. The celebrities reached 396,733 potential readers (again with the caveat of multiple followers) or an average of 79,346 - i.e. this very unscientific survey reveals one celebrity has a Twitter voice nearly thirty times more powerful than the collected efforts of ten leading academics and lawyers or nearly three hundred times as powerful as your average expert.

Although unsurprising this is sobering and a little disheartening and suggests the Cyber-pessimists may be right. It may be argued that this though is the fault of the design of Twitter which encourages celebrity stalking. The Blogosphere is though similar. The leading UK political Blogs Guido Fawkes, Ian Dale's Diary and Left Foot Forward are all published by persons with close connections to the political elite being either ex party-activists or ex or prospective candidates.

The sobering truth is that Web 2.0 may have enhanced the digital democratic divide not closed it.

The Cyber-pessimists may have a point but also ironically it means that this Blog entry is unlikely to be read by more than 267 people (maybe if a few more if I can get someone to ReTweet it). Is this sour grapes from someone who has spent years studying this subject when he could have had greater democratic impact in the debate by either telling a few jokes or writing a witty newspaper column? You Bet!

Addendum

After publication I received some very useful comments from some Twitter users. In particular LoveandGarbage pointed out that Stephen Fry came to the Jan Moir debate late in the day and that it was originally a very active activist that got the subject to trend before Charlie Brooker of the Guardian took it over the top with a column on the subject. I am happy to correct the record.

Bad Law

2010-03-05T06:49:00.000-08:00

When real world laws meet digital problems it is almost certain that bad law will follow. Lets look at the congruence of of a digital problem and a real world solution. Yes everybody we're back in the realms of the Digital Economy Bill.

One of the myriad problems that Baron Mandleson of Foy in the County of Herefordshire and of Hartlepool in the County of Durham has set his sights on is orphan works. Orphan works are one of these areas of copyright law which was troublesome in the real world but are a major problem on the internet.

With a large proportion of internet content being circulated without author details the number of orphan works has multiplied in recent years - it is an issue in all walks of life photography, text-based content, video, sound etc. For years copyright lawyers have been telling government departments that orphan works are a major drag on the development of digital libraries, archives, remixes, aggregated works and similar. The solution put forward in the Digital Economy Bill is at Clause 42 which will see a new s.116A inserted into the Copyright, Designs and Patents Act. In short this will allow the Secretary of State to authorise licensing agencies (or indeed anyone else so authorised) to license orphan works as if they had the permission of the copyright owner. This should remove the grit from the system by allowing libraries, museums, publishers or indeed anyone else to use orphan works in their collections without fear of the copyright holder later taking action against them. Further the new law if passed will allow licensing agencies to charge administration fees and may create a maximum period for which royalties will be expected to be held on account for the copyright owner.

Now you may be thinking this sounds like good law not bad law as this section is entitled. The problem is the application of real world principles (collecting societies as proxies and the "regulation" of the orphan works problem) in the digital environment. Often metadata associated with an original image is stripped out of that data either during publication or during storage. As noted by that Copyright Action for Photographers and Photo Users
"Copyright in photos is essentially going to cease to exist, since there is no ineradicable way of associating ownership details short of plastering your name right across the image." This they call "luncheon voucher" photo publishing:

Flickr, Google Images, personal websites, all of it will become commercial publishers' photolibrary. A fee will have to be deposited with a collecting society in case the owner spots the usage. The author who discovers his work has been used as an orphan can then make a claim and receive a percentage of the peanuts, after the collecting society has had its share, and the government its share.

Essentially, if photos were cars, so long as the numberplate is missing (or you can get rid of it and claim it was), you'll be able to legally TWOC and use it on payment of a fee to the Government.

Photographers are arguing that the only solution is to kill cl.42 (or the whole Bill). There is though another solution. The removal of metadata without authority is an offence under s.3 of the Computer Misuse Act 1990. It's quite convoluted but the offence is there under s.3(2)(c). If this were prosecuted even just a few times the stripping of metadata would be strongly discouraged and the issue of orphan works greatly reduced.

I know it's radical to suggest enforcing the law we have before more new laws are created but sometimes the radical approach works.

My Berkeley Press Page

2010-03-05T05:05:00.000-08:00

Many of my more recent papers may be accessed at my BE Press Author page. Highlights include my 2009 paper on the Regulation of Extreme Pornography as published in the Modern Law Review; my 2009 paper on Symbiotic Regulation as published in the John Marshall Journal of Computer and Information Law. Also here you may get exclusive access to Chapter One of Information Technology Law: The Law and Society ahead of its publication in May. Enjoy all these at: http://works.bepress.com/andrew_murray/.

Welcome to my new Blog

2010-03-02T09:35:00.000-08:00

I have decided to migrate my online musings from my old blog Virtual Law@LSE to here to support the hopefully wider audience that will follow the publication of my book Information Technology Law:The Law and Society.

I will post here on matters of interest to students of IT Law and Society on a regular basis. Some posts will be tailored specifically as updates on the content of the book. These will all be tagged "update". Others will more generally discuss issues of IT Law and Society.

Please visit often and leave feedback. Hopefully this will become the primary online resource for UK students of IT Law and Society.

Andrew Murray 26 February 2010.

Intimidating; Anti Business and Unlawful?

2010-03-02T00:27:00.000-08:00

It has been reported by Glyn Wintle of the Open Rights Group that in yesterday's Lords Debate on the Digital Economy Bill the Minister in responding to questions of appeals against notices stated that "[An] appeal should succeed if you can prove you did not carry out the alleged infringement"

Hold on a minute. How does one prove a negative? As any mathematician will tell you negative proof is a logical fallacy - any respected scientist who claimed to prove a negative would be pilloried. There is a not too subtle shift in the balance of proof being suggested here. The Bill is suggesting that if there is basic evidence of your IP account being the source of a download/upload that is enough to shift the burden from the copyright holder to the customer - this explains this enigmatic statement from the Minister. Under Clause 4 of the Bill a Copyright Infringement Notice must "include evidence of the apparent infringement that shows the subscriber’s IP address and the time at which the evidence was gathered." Although this will be further fleshed out later by the OFCOM code this sounds suspiciously like an application of the Logistep technology used in volume litigation (see prior posts passim).

Basically the copyright holders will use Logistep style technology to capture IP addresses and use these to send Copyright Infringement Notices via ISPs. This apparently (if I understand the Minister's statement) will shift the burden of proof from the copyright holder to the end user. What about Article 6 of the ECHR - "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." This apparently is not as important as pleasing the interests of the creative industry lobbyists.

When I went to law school I was taught that in civil cases the burden of proof requirement was that the pursuer/claimant must prove his claim on the balance of probabilities. Only then did the burden shift to the defender/defendant. In the current scenario the copyright holder will capture an IP address uploading/downloading the file. Upon this scant evidence they will require the ISP to send the notice or take further action potentially up to disconnection. Have they shifted the balance of probabilities? I say not - the user may not have fully secured his/her Wi-Fi connection (there is as yet no legal duty to do so); their Wi-Fi connection may have been attacked and compromised; more simply someone may have spoofed their IP address. Finally an IP address does not identify an infringer only an account. If a friend comes to stay and I allow him to use my Wi-Fi should I be made responsible for his actions? What about hotels? We've already seen in the last week an uproar with proposals in regard to libraries, universities and business Wi-Fi.

In short I imagine no judge would ever find on the balance of probabilities that infringement had occurred on the basis of an IP address capture alone. This is why Davenport Lyons and more recently ACS:Law have avoided full hearings on their Volume Litigation practices. It seems though that statutorily a new regime is being introduced. One where the burden of proof is on the user not the accuser. I believe this is in breach of Article 6.

What can you do?

You can also receive email and RSS updates for the Bill via the Parliament website

Book News

2010-03-01T09:34:00.001-08:00

The Book is currently due for publication on 15 May 2010. I have recently returned the corrected proofs to OUP and all is on schedule at the moment. It will be 580pp plus index and preliminaries. I will keep you updated on developments as we get nearer to the publication date.

New Article: Volume Litigation Issues

2010-03-01T09:34:00.000-08:00

Volume Litigation remains a vexed issue for IT Lawyers everywhere. A while ago I blogged about the practice of West End Firm Davenport Lyons (see Entry 1; Entry 2). Since then much has happened. Davenport Lyons have withdrawn from the practice and they have been replaced as the only UK proponent of the practice by ACS:Law a sole practitioner firm also based in the West End.

Recent reports suggest a recent move by ACS:Law to use a Norwich Pharma order to obtain the details of 25,000 users has been met with a stony rejection from the courts (see here) - this may signal a move away from super-applications like those seen in 2009 when ACS:Law were successful in a 30,000 user application. Despite this though the practice doesn't seem to be on its way out in the UK though it has been rejected in France and has been criticised in Germany and Switzerland (where IP tracing firm Logistep is based). Against this background I gave a paper on volume litigation to the SCL last year and it is now published in full in the February Computers and Law. Given the widespread interest in this Laurence Eastham has kindly agreed to waive the usual password protection on this article so anyone can read it.

As fortune would have it I had lunch last week with among others Chris Reed. He's interested in the automation of notice and take-down, in particular Warner Music's campaign on YouTube. On which see further Lenz v Universal Music - the video is here.

I'm sure there is more to say on this. I'm considering writing a paper on automated volume litigation and Article 6 of the ECHR. Watch this space.

First British File sharing Case Leads to Acquittal

2010-02-26T02:09:00.000-08:00

On Friday 12th February a Jury at Teesside Crown Court cleared former Oink admin Allan Ellis of conspiracy to defraud the music industry for running a music file-sharing service with some 200,000 members.

In it's heyday Oink or Oink's Pink Palace to give it it's full name was one of the more unusual file-sharing services.

Oink was an invite-only site which banned low-quality sound files, enforced strict usage rules and mandated that all users’ avatars be “cute” — even taking pains to define exactly what made an avatar appropriately cuddly. It's invite-only nature kept it below the radar of most internet users and they hoped the music industry. All that came to an end in 2007, when the authorities arrested Alan Ellis, who created and ran the operation from his Middlesbrough flat from 2004 to 2007.

It is reported that Oink facilitated the download of 21 million music files. Users were asked to make a donation, although it was not necessary for them to do so to invite friends to join the site.The jury was told that police found almost US $300,000 (£183,580) in Mr Ellis's Paypal account and that he received $18,000 (£11,000) a month in donations from people using his website. Mr. Ellis is reported to have told the court that there was no intention to defraud copyright holders.Instead he said the donations were to pay for the server's rental and any surplus would eventually be used to buy a server. The Jury seemed to agree and cleared him of all charges.

As a criminal trial we are unlikely to receive a full report of the case which is most unfortunate as this is a very different outcome than in The Pirate Bay case where of course they were found guilty of criminal copyright infringement under Swedish Law.

What does this mean for UK Law? Probably very little at the moment.This is a single Crown Court Trial decision. There is no indication the CPS intend to appeal - there is no indication of any grounds of appeal even if they so intended. The decision was a jury decision and sets no legal precedent - basically on the facts the jury found the defendant not guilty. I'm sure the CPS, egged on by the IFPI/BPI will continue to raise actions on the conspiracy to defraud principle.

In the instant case the jury may have been swung by evidence from Professor Birgitte Andersen of Birkbeck College's Centre for Innovation Management Research. She is reported to have told the jury that her research into file sharing in Canada revealed that:

File sharers tend to buy more music - online or on CD. The "try before you buy" element actually means leads to more sales for the music industry - It creates more market than it substitutes on average. The industry is doing really, really well and they've actually done better than ever. If on average people are buying more than they substitute, copyright holders should be happy.

Despite this view the BPI were disappointed with the outcome of the case stating:

This is a hugely disappointing verdict which is out of line with decisions made in similar cases around the world, such as The Pirate Bay. The defendant made nearly £200,000 by exploiting other people's work without permission. The case shows that artists and music companies need better protection.

We await the next case with interest.

Events at the LSE in November and December 2009

2009-11-12T01:29:00.000-08:00

The LSE Law Department has two forthcoming events of interest to those who work in or study IT Law and Practice.

On Thursday 19 November 2009 at 6.30pm, Matthew Richardson (Barrister, 7 New Square) will visit the School to discuss his experience of crafting and serving the Blaney Blarney Order. The talk, entitled: "'Innovative use of Information Technology in the Legal Process: Serving Notice via Twitter" will be held in Room S.221 (Map) All are welcome to attend.

On Tuesday 8 December 2009 at 6.30pm, Richard Susskind OBE (Independent Advisor on IT Projects) will deliver the second "Law and Other Things" public lecture on the topic "The End of Lawyers". This will be held in the Honk Kong Theatre (Map). This event is unticketed and open to all.

Information Just Doesn't Want to be Free

2009-10-06T05:28:00.000-07:00

News reaches VirtualLawatLSE that Royal Mail Group (RMG) has taken action to protect its Database of Postcode Information (BBC News).

Now I'm not going to criticise RMG for doing this. It is important to them that they protect their IP Rights and given the perilous financial state (it appears) of RMG they cannot afford any free riders.

There is though another issue here about the forms of data that qualify for Database Protection and whether or not RMG are unreasonably flexing their muscle as a publicly-owned state monopoly here. The company that RMG has threatened to sue (presumably for database infringement) provides postcode data to a number of smaller organisations, including charities, who cannot afford the £4000 access fee charged by RMG. The company involved, ernestmarples.com, has stated they will not defend any action as it did not have the resources to fight a legal battle.

There are though two possible legal challenges to RMGs asserted position that ernestmarples.com needs to pay a fee to access the data. The first is the ECJ decision in BHB v William Hill. This suggests where data is created as a subsidiary matter to the primary operation of the database controller (ie postcodes are a subsidiary effect of the primary role of RMG to sort and deliver mail) the contents of the database do not qualify for protection under the database directive. To quote the judgement: "the database owner must have substantially invested in the obtaining, verification and presentation of the contents, rather than in the creation of the content itself." Not sure RMG's database of postcodes would qualify therefore.

Secondly there is the question of abuse of a dominant position and the case of Magill v RTE. That is the classic TV listings case. There the ECJ held that "Broadcasting companies are in a dominant position within the meaning of Article 86 of the Treaty when, by reason of their de facto monopoly over the information relating to the listings of their programmes, which are received in most households in one Member State and in a substantial portion of households in the adjoining part of another Member State, they are in a position to prevent effective competition on the market in weekly television magazines in the areas concerned."

I suspect this principle could be transferred to companies such as RMG who control data in any specific sector which by reason of a de facto monopoly over the production of said data they control access to.

It's a shame therefore that ernestmarples.com can't fight back. I suspect they might win.

Blaney Part 2

2009-10-04T00:38:00.000-07:00

I was fortunate enough to speak to Matthew Richardson to barrister behind the Blaney Blarney Order application on Friday. He explained (and I should have thought of this myself) that although a straight infringement claim was brought regarding the image used on the impersonators Twitter page they also brought a false attribution claim under s.84 CDPA applying the principles of Clark v Associated Newspapers . When I spoke to Mr. Richardson he was hopeful that the impersonator of Mr. Blaney would comply with the order.

Since then though things have taken a turn for the worse. Although the impersonator has apparently complied with the order so far (there have been no attempts to delete the page or to update it) a new Twitter account has been opened under the name of blarney_blaney. This account has a highly offensive image of Mr. Blaney and contains two postings: "Wondering who to sue next? Have my eyes on the late Queen Mother followed by Barrack 'HUSSAIN' Obama (must be a relation of Saddam) no?" and "@donal_blaney Hello :)!" Now what is not clear is whether this is the original offender or merely someone who supports him/her or is even more simply a Troll. What I would say to this poster is this is really not clever. The image posted is clearly defamatory of Mr. Blaney and the courts have already demonatrated themselves willing to intervene in matters like this: see Keith Smith v Williams; Applause Store v Raphael & Sheffield Wednesday v Hargreaves.

Damages can be extensive. In Keith-Smith damages of £10,000 were awarded, in Raphael they totalled over £20,000. In short unless the owner of the blarney_blaney account has either very deep pockets or very shallow (making recovery impossible) they would be advised to delete this account now. I am sure Mr.Richardson is already thinking of making a Norwich Pharma application which would unmask the person involved.