A little bit of background: over the holiday weekend, news began to spread that Amazon had done something rather odd and disturbing with many, if not most, books that dealt with lesbian, gay, bisexual or transsexual themes. They hadn't been removed from sale, but their sales rank had been suppressed. As well as being a direct indicator of a book's popularity, this is a key factor in Amazon's automated book recommendation system, so a book without a sales rank is far less likely to be offered up to potential customers. I know a few authors, and their Amazon sales rankings are something they take a keen interest in. For Amazon to remove them for a whole category of books is naturally going to concern both the authors of those books and anyone interested in that category. And when that category is LGBT books... well, you can imagine that suspicions of Agendas, or Moral Panic, or even Censorship started to circulate.
And circulate they did, thanks to Twitter. April 2009 might well go down as the month that Twitter went mainstream, firstly with The Guardian's April Fool, and then with the Twitter '#AmazonFail' tag, by which Twitter users alerted to the issue could chose to follow comments and updates about it.
(Two points here. Firstly, this highlighted for many people the power of Twitter tagging as showing a use for what is often regarded as a rather trivial medium. A Twitter tag in effect allows users to get an instant paging service on a current topic in short, bize-size form that can easily be pushed to a phone or PDA. It's an excellent way of forming an instant community-of-interest, as this example showed. Secondly, I wonder if anyone will do a study into the way that 2009 has seen '[name]gate' as the label for a scandal be supplemented by '[issue]fail' as the instant term for a controversy, at least online?)
I won't dive into discussion or explanation as it has been done far better elsewhere. US editor and blogger Patrick Nielsen Hayden has made some sensible observations (and there are a few more in the comments to that post, admittedly amidst a lot of wibble). The Seattle Post-Intelligencer blog has what seems to be credible news from sources within Amazon on what happened. But most interesting to me are the comments from tech blogger (and long-term friend) Simon Bisson on what this tells us about Amazon's infrastructure.
And what it tells us may not be good news for Amazon, or indeed its shareholders. To quote Simon:
"The simple answer is Amazon's architecture. It's highly distributed, and there's no operations team. Each component (and over 200 go into a single page) is run by its development team, of four to five people. They are responsible for its features, its development - and for making sure it runs effectively."
We had a term for this when I was in the RAF: "Spring-Loaded", as in 'crammed full of cogs and springs that will explode in a shower of little bits of brass unless the lid is screwed down very tight'. Another term is "System of systems", popular as a cool-sounding buzzword but a phrase that should strike fear into the heart of anyone who understands that ten fragile things stacked up together are in fact likely to be more, not less, delicate than one fragile thing alone.
I don't think for a second this was an evil reactionary plot by Amazon to purge itself of LGBT publications or to appease the Religious Right. Whilst that, if true, would have been very bad for Amazon's reputation, I think the actual explanation may in the long run be even worse. If it turns out that such an embarrassing incident could have arisen from a single coding error, and that Amazon's infrastructure allowed the error to pass undetected, propagate around the world and then take days to fix, then it rather makes the world's best-known online ordering brand look like a massive house of cards. At the very least, it will be an object lesson both in scalability of architectures and in corporate image management in the age of Twitter.
I look forward to the e-Commerce conference papers with interest.
Tuesday, 14 April 2009
Saturday, 4 April 2009
Patry on Copyright
No, not the six-volume epic, but rather the talk given last week in London by its author, Google's copyright counsel William Patry. As well as a comprehensive summary here - with replies to comments by Patry himself - the SCL has made the talk, together with introduction, questions and closing remarks - available for download.
I have not been shy in bemoaning the way that the digital rights dispute too often becomes a sterile shouting match between extreme positions on both sides; those who would make copyright all-encompassing and eternal against those who would do away with it altogether. I am keen to see evidence of any respectable middle ground and I think Patry lays it out very well. There is a good case for the rights of creators to be protected, but such protection must be evidence-based and economically justified. Otherwise, as Patry points out, we are at best in the realm of emotional arguments and at worst at risk of following the same ideology-breeds-policy route that has made such a mess of the global economy.
We need more articulate exponents of the middle ground. I've had to defend the very concept of intellectual property against well-meaning activists who assume that anyone connected with IP law must by definition be a copyright maximalist. This is no more true that assuming that anyone dealing with land law would advocate the banning of rights of way and other easements. Equally, not everyone who questions proposals to further extend the term of copyright is a wild-eyed IP abolitionist! Those of us who disagree with either extreme are not sitting on the fence; we're trying to take a sensible middle view. This does not mean that we imagine that we have easy solutions, for as Patry admits it will be difficult to resolve the issues arising from current IP law. But just because something is difficult does not mean that we should not attempt to think sensibly about it, or to ask that those who do make policy do so on the basis of evidence and debate, not emotion and rhetoric.
I have not been shy in bemoaning the way that the digital rights dispute too often becomes a sterile shouting match between extreme positions on both sides; those who would make copyright all-encompassing and eternal against those who would do away with it altogether. I am keen to see evidence of any respectable middle ground and I think Patry lays it out very well. There is a good case for the rights of creators to be protected, but such protection must be evidence-based and economically justified. Otherwise, as Patry points out, we are at best in the realm of emotional arguments and at worst at risk of following the same ideology-breeds-policy route that has made such a mess of the global economy.
We need more articulate exponents of the middle ground. I've had to defend the very concept of intellectual property against well-meaning activists who assume that anyone connected with IP law must by definition be a copyright maximalist. This is no more true that assuming that anyone dealing with land law would advocate the banning of rights of way and other easements. Equally, not everyone who questions proposals to further extend the term of copyright is a wild-eyed IP abolitionist! Those of us who disagree with either extreme are not sitting on the fence; we're trying to take a sensible middle view. This does not mean that we imagine that we have easy solutions, for as Patry admits it will be difficult to resolve the issues arising from current IP law. But just because something is difficult does not mean that we should not attempt to think sensibly about it, or to ask that those who do make policy do so on the basis of evidence and debate, not emotion and rhetoric.
Sunday, 15 March 2009
Apple DRM'ing Earphones? Maybe not.
Apple gained a lot of positive publicity a few months ago by removing Digital Rights Management (DRM) from iTunes music. However, there's a bit of a backlash in various online geek forums over claims that the new iPod Shuffle includes a chip that uses 'DRM' to ensure that only Apple-made (or perhaps Apple-approved) headphones work with it. To put this into context, the new Shuffle has all its controls on the headphones themselves, so ordinary headphones won't work with it.
But is this really 'DRM'? It turns out that manufacturers in the US have indeed put such compatibility chips into devices and then tried to use the Digital Millennium Copyright Act (DMCA) to attack competitors who sold compatible accessories without permission. A leading example was Lexmark v Static, where Lexmark used a chip in printer cartridges to ensure that they could not be refilled and resold. However, the US courts were not sympathetic to Lexmark's claim that bypassing such protection counted as illegal circumvention under the DMCA, noting that:
"We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case"
Is Apple trying to lock in sales of headphones? It would seem unlikely that it was ignorant of the Lexmark case, and other commentators have cast doubt on the 'DRM' analysis - see some of the comments at this post.
All this applies to the US, of course. What about the EC or UK? It is hard to be sure without a more detailed legal analysis (which, sad to say, I'm a little busy for right now) but the English courts, and indeed the House of Lords, have not historically been sympathetic to attempts by original manufacturers to creatively use IP law in order to secure a monopoly in accessories and spares, most notably in Leyland v Armstrong where it was held that copyright law could not be interpreted so as to provide restrictions against spares suppliers that design law did not. Furthermore, any argument based on copyright in the chip software would presumably run into the 'emulation is not copying' decision in Navitaire v Easyjet and Nova v Mazooma.
The moral: be careful of jumping to conclusions about supposed IP-related corporate evils. After all, there are enough real examples out there that it's hardly necessary to invent more...
Thursday, 19 February 2009
Fair Dealing and Unfair Suppression
It has all been a bit quiet around here of late, thanks in most part to the distractions of the Bar Vocational Course. I’m thoroughly enjoying it, but a steady diet of opinion-writing, drafting of particulars and preparing for advocacy has rather absorbed my time of late. However, things certainly haven’t stood still in the IT law or IP worlds, and as the final stage of the course looms distantly into view it’s time to get the blogging jacket* on again.
(*A fictitious garment I imagine as being in some way akin to a smoking jacket; I welcome suggestions as to its attributes.)
Anyway, on to law. Fair use, or fair dealing as it is more properly called in the UK, has been in the news again in respect of a dispute between radio station LBC and Ben Goldacre, writer of the Bad Science column for The Guardian and author of the associated (very good) book. As recounted here Ben Goldacre took exception to a lengthy segment of LBC presenter Jeni Barnett’s show in which she uncritically trotted out just about every ridiculous and discredited claim about the alleged link between the MMR vaccine and autism. Now, when you disagree with what someone has written you can direct people to the original article and even TV and radio features are often available via iPlayer or similar ‘listen again’ services. But LBC does not, so it seems, make its programmes so available, and so in order to protect himself against accusations that he was ‘cherry-picking’ parts of the programme, Ben Goldacre posted an audio file of all 44 minutes of the discussion, out of a total of 3 hours of Jeni Barnett’s programme.
At which point, LBC’s lawyers threatened him with an action for copyright infringment.
Now, it’s not in dispute that LBC are the rightful owners of copyright in Jeni Barnett’s programme. Similarly, Mr Goldacre has clearly made available a copy of a significant part of that programme (almost a quarter of it). So his action was clear infringement – or was it?
Section 30 of the CDPA 1988 provides for fair dealing in copyright material for purposes of criticism, review or news reporting. Ben Goldacre’s comments on the MMR programme were certainly critical, but how much of the original material was he entitled to reproduce in order to criticise it? One common complaint about fair dealing laws is that they provide no hard-and-fast rule as to what comprises reasonable use, although given the enormous variety of circumstances such borrowing can take place in, it’s almost inevitable that it has to be assessed on a case-by-case basis. Rather, we have to look at judicial guidance from cases such as Hubbard v Vosper [1972] 2 QB 84, where it was held that in matters of significant public interest then there may be good justification for extensive reproduction, especially if that is the only way that the material in question can be exposed for analysis and comment. Furthermore, in Pro Sieben Media v Carlton [1999] 1 WLR 605 the Court of Appeal held that for matters of ongoing public concern any journalistic coverage, not just pure ‘news’, may comprise reporting for the purposes of s.30 fair dealing.
Under the circumstances, where Ben Goldacre had no text or copy of the MMR segment of the programme to refer readers to, where he reasonably sought to avoid accusations of selective quotation, and where he had serious and detailed critical comment on virtually every aspect of the material in question, it seems to me that he would have had a very strong case indeed for asserting fair dealing.
As noted in this OUT-LAW podcast on the subject though, we’ll never know as Ben Goldacre has taken down the recording on the basis that he cannot afford to test the issue in court. This is understandable but unfortunate, as it means we will have to wait either for someone to be in a position to defend a test case or for legislative clarification (and given that there has just been a round of reviews of copyright exemptions, I don’t expect another one any time soon). But LBC’s victory has been an extremely hollow one, for, as described here, this row brought more publicity to a matter LBC likely wanted buried than Ben Goldacre could ever have hoped to achieve if LBC had ignored the matter. Copies and transcripts of the item abound (go and have a look, unless you suffer from high blood pressure; this level of wilfully wrong-headed arrogant ignorance is breathtaking.) To quote Robert Walker LJ in the Pro Sieben case, “an author's remedy for malicious and unjustified criticism lies (if it lies anywhere) in the law of defamation, not copyright.” To which I would add that in today’s world of blogs, wikis and torrents, attempts to suppress criticism via copyright action are all too likely to rebound, as LBC has just found out.
(*A fictitious garment I imagine as being in some way akin to a smoking jacket; I welcome suggestions as to its attributes.)
Anyway, on to law. Fair use, or fair dealing as it is more properly called in the UK, has been in the news again in respect of a dispute between radio station LBC and Ben Goldacre, writer of the Bad Science column for The Guardian and author of the associated (very good) book. As recounted here Ben Goldacre took exception to a lengthy segment of LBC presenter Jeni Barnett’s show in which she uncritically trotted out just about every ridiculous and discredited claim about the alleged link between the MMR vaccine and autism. Now, when you disagree with what someone has written you can direct people to the original article and even TV and radio features are often available via iPlayer or similar ‘listen again’ services. But LBC does not, so it seems, make its programmes so available, and so in order to protect himself against accusations that he was ‘cherry-picking’ parts of the programme, Ben Goldacre posted an audio file of all 44 minutes of the discussion, out of a total of 3 hours of Jeni Barnett’s programme.
At which point, LBC’s lawyers threatened him with an action for copyright infringment.
Now, it’s not in dispute that LBC are the rightful owners of copyright in Jeni Barnett’s programme. Similarly, Mr Goldacre has clearly made available a copy of a significant part of that programme (almost a quarter of it). So his action was clear infringement – or was it?
Section 30 of the CDPA 1988 provides for fair dealing in copyright material for purposes of criticism, review or news reporting. Ben Goldacre’s comments on the MMR programme were certainly critical, but how much of the original material was he entitled to reproduce in order to criticise it? One common complaint about fair dealing laws is that they provide no hard-and-fast rule as to what comprises reasonable use, although given the enormous variety of circumstances such borrowing can take place in, it’s almost inevitable that it has to be assessed on a case-by-case basis. Rather, we have to look at judicial guidance from cases such as Hubbard v Vosper [1972] 2 QB 84, where it was held that in matters of significant public interest then there may be good justification for extensive reproduction, especially if that is the only way that the material in question can be exposed for analysis and comment. Furthermore, in Pro Sieben Media v Carlton [1999] 1 WLR 605 the Court of Appeal held that for matters of ongoing public concern any journalistic coverage, not just pure ‘news’, may comprise reporting for the purposes of s.30 fair dealing.
Under the circumstances, where Ben Goldacre had no text or copy of the MMR segment of the programme to refer readers to, where he reasonably sought to avoid accusations of selective quotation, and where he had serious and detailed critical comment on virtually every aspect of the material in question, it seems to me that he would have had a very strong case indeed for asserting fair dealing.
As noted in this OUT-LAW podcast on the subject though, we’ll never know as Ben Goldacre has taken down the recording on the basis that he cannot afford to test the issue in court. This is understandable but unfortunate, as it means we will have to wait either for someone to be in a position to defend a test case or for legislative clarification (and given that there has just been a round of reviews of copyright exemptions, I don’t expect another one any time soon). But LBC’s victory has been an extremely hollow one, for, as described here, this row brought more publicity to a matter LBC likely wanted buried than Ben Goldacre could ever have hoped to achieve if LBC had ignored the matter. Copies and transcripts of the item abound (go and have a look, unless you suffer from high blood pressure; this level of wilfully wrong-headed arrogant ignorance is breathtaking.) To quote Robert Walker LJ in the Pro Sieben case, “an author's remedy for malicious and unjustified criticism lies (if it lies anywhere) in the law of defamation, not copyright.” To which I would add that in today’s world of blogs, wikis and torrents, attempts to suppress criticism via copyright action are all too likely to rebound, as LBC has just found out.
Tuesday, 2 December 2008
Sir Hugh Laddie, 1946-2008
Like many students and practitioners of intellectual property law, I am deeply saddened to learn of the death of Sir Hugh Laddie, formerly Mr Justice Laddie and one of the most influential IP judges of the last few decades. I was tempted to write a more lengthy review of his life, but I see that William Patry has temporarily returned from his blog exile to post a more fulsome and heartfelt tribute than I could ever manage.
I will, however, add a personal note. I became interested in law through supporting my wife in a court case over a very messy inheritance dispute. Such cases, especially where the estate is substantial, are tried by Chancery Division judges of the High Court, the branch of the judiciary that includes the Patent Court and its judges. So, as it happened, the judge who heard our case was none other than Mr Justice Laddie. I was later to read that one of the reasons he resigned from the bench was his discomfort at hearing cases outside what he felt to be his area of specialist expertise. If that was the case here then he showed no sign of it; indeed, as the central legal issue (undue influence) was one where the law is simple but weighing of the evidence is paramount, his incisive mind and firm grip upon proceedings served him well. As, for that matter, did his sense of humour during what was at times a distressing and unpleasant case for all concerned. (I fondly recall his anecdote to counsel regarding the difference between dementia and that common condition, 'male middle-aged inattention'.)
We won our case. It feels odd to say that I am grateful to Sir Hugh for that, as I feel we won because our cause was right. But I am grateful to him for approaching it in a manner that did full justice to our cause, and for igniting in me the spark of interest that led me to start studying law. As my technical background led me to IP, I soon discovered his wider claim to fame. But I'll always remember him best for his decision in Bradshaw v Hardcastle [2002] EWHC 2816 (QB).
I will, however, add a personal note. I became interested in law through supporting my wife in a court case over a very messy inheritance dispute. Such cases, especially where the estate is substantial, are tried by Chancery Division judges of the High Court, the branch of the judiciary that includes the Patent Court and its judges. So, as it happened, the judge who heard our case was none other than Mr Justice Laddie. I was later to read that one of the reasons he resigned from the bench was his discomfort at hearing cases outside what he felt to be his area of specialist expertise. If that was the case here then he showed no sign of it; indeed, as the central legal issue (undue influence) was one where the law is simple but weighing of the evidence is paramount, his incisive mind and firm grip upon proceedings served him well. As, for that matter, did his sense of humour during what was at times a distressing and unpleasant case for all concerned. (I fondly recall his anecdote to counsel regarding the difference between dementia and that common condition, 'male middle-aged inattention'.)
We won our case. It feels odd to say that I am grateful to Sir Hugh for that, as I feel we won because our cause was right. But I am grateful to him for approaching it in a manner that did full justice to our cause, and for igniting in me the spark of interest that led me to start studying law. As my technical background led me to IP, I soon discovered his wider claim to fame. But I'll always remember him best for his decision in Bradshaw v Hardcastle [2002] EWHC 2816 (QB).
Friday, 28 November 2008
The Telecoms Package: What Now and Where Next?
Following on from my previous post about the EU Telecoms Package, the vote in question took place this morning. Monica Horten, who is far more au fait with the minutiae of EU legislative procedure than I am, has given a very good write-up of what happened.
So, this isn't the end of the process. We now have the Council's view of what the Telecoms Package should be, as well as the Commission's view and the EU Parliament's view. All three bodies will now have to try to hammer out a compromise, and it's clear from Monica's report that there is much unease at the Council (i.e. national) as well as Parliament (direct representatives) level as to the way in which both Amendment 138 and its sibling Amendment 166 - which was dropped by the Council some time back - have been expunged. As I noted earlier, Recital 14a remains in the Universal Service Directive to urge proper due process via national legal systems, so with any luck questions will be asked as to why, if the Council is content to leave it in, there isn't some accompanying Article to ensure compliance with it?
As I see it, there are definitely further opportunities for lobbying and action. The Telecoms Package will have to finish its passage through the EU legislative process - Monica suggests this will probably be over the next few months - and the resulting amended Directives will have to be transposed into UK law over the subsequent two or three years. Our MEPs, MPs and Ministers are not off the hook yet.
So, this isn't the end of the process. We now have the Council's view of what the Telecoms Package should be, as well as the Commission's view and the EU Parliament's view. All three bodies will now have to try to hammer out a compromise, and it's clear from Monica's report that there is much unease at the Council (i.e. national) as well as Parliament (direct representatives) level as to the way in which both Amendment 138 and its sibling Amendment 166 - which was dropped by the Council some time back - have been expunged. As I noted earlier, Recital 14a remains in the Universal Service Directive to urge proper due process via national legal systems, so with any luck questions will be asked as to why, if the Council is content to leave it in, there isn't some accompanying Article to ensure compliance with it?
As I see it, there are definitely further opportunities for lobbying and action. The Telecoms Package will have to finish its passage through the EU legislative process - Monica suggests this will probably be over the next few months - and the resulting amended Directives will have to be transposed into UK law over the subsequent two or three years. Our MEPs, MPs and Ministers are not off the hook yet.
Wednesday, 26 November 2008
Whatever Happened to Amendment 138?
A couple of weeks ago I posted about my pro bono project for the Open Rights Group, analysing proposed changes to EU Telecoms law that might allow a 'Three Strikes' sanction against alleged file-sharers without recourse to due process of law. As became clear in preparing our final report, a key measure was Amendment 138, inserted by the EU Parliament in an effort to apply the rule of law to such measures. The EU Council is voting tomorrow on the Telecoms Package, but confusion has now arisen about whether Amendment 138 is still in play. What seems to have happened is that there has (in true EU style) been a lot of horse-trading going on as to the final text of the Telecoms Package that the EU Council is going to vote on tomorrow.
It's worth remembering that EU legislation is made in a complex and not very transparent way and that voting by MEPs in the EU Parliament is only part of the process. The final vote at the EU Council is by representatives of member state governments, all of which have their own agendas. Furthermore, it's not as if individual elements such as Amendment 138 get voted on line-by-line; instead, the final text (including amendments made by the EU Parliament) is argued over behind closed doors before a compromise is voted on by the Council. If you think this bears more resemblance to trying to pass a rule change through your local football club committee than getting a Bill through Parliament, you might not be wrong.
Looking at the final versions of the five amended EU Directives that form the Telecoms Package, it seems that yes, Amendment 138 (which made sanctions against 'unlawful content' subject to due process of law) has indeed disappeared. But so have some elements of another part of the Package that said that national telecoms regulators should regulate lawful and unlawful content. What was particularly worrying about those provisions was that they referred to another part of the Package that mandated co-operation between national regulators and telecoms industry providers - i.e. ISPs and the big telecoms carriers.
So, what we were looking at until now was a set of provisions buried within the Telecoms Package that said:
a) National regulators must promote lawful content.
b) National regulators must co-operate with ISPs.
c) Measures to do this must be by due process of law. (Amendment 138)
In the latest version, (c) is gone - but so is (a), leaving (b) more as a general mandate that regulators and the telecoms industry must work together, but not with a set 'stop unlawful content' agenda. In fact, the end result of the latest round of changes is to put much of the underlying legislation back to its current state, as first passed in 2002.
So does the Telecoms Package say anything at all now about due process? Actually, yes. At this point it should be noted that EU Directives work not by making law directly (well, not generally, but for EU law experts I am simplifying here) but instead by giving a template that each member state must then turn into national law. It does this by means of Articles, which must be turned straight into local law, and Recitals, which are more like explanatory notes of what the new law is meant to do. In theory a Directive should contain a list of Recitals explaining what the Directive is trying to do, followed by a set of Articles that lay down the laws to be made that will do it.
Here though, the relevant Articles have been amended or deleted so there is no specific one saying 'make a law guaranteeing due process for telecoms disconnection'. But the related Recital, inserted by the EU Parliament, is still there:
"In the absence of relevant rules of Community law, content, applications and services are deemed lawful or harmful in accordance with national substantive and procedural law. It is a task for the relevant authorities of the Member States, not for providers of electronic communications networks or services, to decide, in accordance with due process, whether content, applications or services are lawful or harmful or not."
In other words, EU member states, when implementing the Telecoms Package, are strongly guided to do so in a way that relies on the rule of law and due process rather than delegating the whole thing to ISPs.
Where are we left after all this? If the current Telecoms Package passes on Thursday, it will have the desired safeguards removed, but it will also be rather watered-down. Instead of clearly laying down a Three Strikes policy, it now gives guidance to say that such measures must be subject to due process. Now this won't on the face of it stop a particular country from passing its own Three Strikes law if it wants to, although it will give a heavy hint that any such law must allow for due process. My own opinion is that the Three Strikes battle hasn't been won or lost this week - instead it's been moved to each EU member state to be fought locally.
But what this whole mess does highlight is the very opaque and convoluted process by which EU law is made. The EU is often described as suffering from a 'Democratic Deficit', with law-making processes that, as I noted above, more resemble those of a club than a nation. Given that the EU started out as a club, albeit of countries, that is not surprising - but if it is now acting like a super-state setting telecoms laws governing the net access of half a billion people, is this really a good way to carry on?
Finally, I'd like to thank Monica Horten at IPtegrity.com for essential and insightful analysis of the latest changes.
It's worth remembering that EU legislation is made in a complex and not very transparent way and that voting by MEPs in the EU Parliament is only part of the process. The final vote at the EU Council is by representatives of member state governments, all of which have their own agendas. Furthermore, it's not as if individual elements such as Amendment 138 get voted on line-by-line; instead, the final text (including amendments made by the EU Parliament) is argued over behind closed doors before a compromise is voted on by the Council. If you think this bears more resemblance to trying to pass a rule change through your local football club committee than getting a Bill through Parliament, you might not be wrong.
Looking at the final versions of the five amended EU Directives that form the Telecoms Package, it seems that yes, Amendment 138 (which made sanctions against 'unlawful content' subject to due process of law) has indeed disappeared. But so have some elements of another part of the Package that said that national telecoms regulators should regulate lawful and unlawful content. What was particularly worrying about those provisions was that they referred to another part of the Package that mandated co-operation between national regulators and telecoms industry providers - i.e. ISPs and the big telecoms carriers.
So, what we were looking at until now was a set of provisions buried within the Telecoms Package that said:
a) National regulators must promote lawful content.
b) National regulators must co-operate with ISPs.
c) Measures to do this must be by due process of law. (Amendment 138)
In the latest version, (c) is gone - but so is (a), leaving (b) more as a general mandate that regulators and the telecoms industry must work together, but not with a set 'stop unlawful content' agenda. In fact, the end result of the latest round of changes is to put much of the underlying legislation back to its current state, as first passed in 2002.
So does the Telecoms Package say anything at all now about due process? Actually, yes. At this point it should be noted that EU Directives work not by making law directly (well, not generally, but for EU law experts I am simplifying here) but instead by giving a template that each member state must then turn into national law. It does this by means of Articles, which must be turned straight into local law, and Recitals, which are more like explanatory notes of what the new law is meant to do. In theory a Directive should contain a list of Recitals explaining what the Directive is trying to do, followed by a set of Articles that lay down the laws to be made that will do it.
Here though, the relevant Articles have been amended or deleted so there is no specific one saying 'make a law guaranteeing due process for telecoms disconnection'. But the related Recital, inserted by the EU Parliament, is still there:
"In the absence of relevant rules of Community law, content, applications and services are deemed lawful or harmful in accordance with national substantive and procedural law. It is a task for the relevant authorities of the Member States, not for providers of electronic communications networks or services, to decide, in accordance with due process, whether content, applications or services are lawful or harmful or not."
In other words, EU member states, when implementing the Telecoms Package, are strongly guided to do so in a way that relies on the rule of law and due process rather than delegating the whole thing to ISPs.
Where are we left after all this? If the current Telecoms Package passes on Thursday, it will have the desired safeguards removed, but it will also be rather watered-down. Instead of clearly laying down a Three Strikes policy, it now gives guidance to say that such measures must be subject to due process. Now this won't on the face of it stop a particular country from passing its own Three Strikes law if it wants to, although it will give a heavy hint that any such law must allow for due process. My own opinion is that the Three Strikes battle hasn't been won or lost this week - instead it's been moved to each EU member state to be fought locally.
But what this whole mess does highlight is the very opaque and convoluted process by which EU law is made. The EU is often described as suffering from a 'Democratic Deficit', with law-making processes that, as I noted above, more resemble those of a club than a nation. Given that the EU started out as a club, albeit of countries, that is not surprising - but if it is now acting like a super-state setting telecoms laws governing the net access of half a billion people, is this really a good way to carry on?
Finally, I'd like to thank Monica Horten at IPtegrity.com for essential and insightful analysis of the latest changes.
Monday, 24 November 2008
The Onward March of Technology...
... applies even to misconduct in the jury room. Ouija boards (as in R v Young (Stephen) [1995] QB 324) are clearly old hat, as the lazy or delinquent juror now has recourse to Facebook.
Leaving aside the fact that this person now faces the prospect of being charged with Contempt of Court, this once again highlights the way in which Facebook is so often used without any regard to the privacy settings available. My friend Pangloss has many a time lamented the way in which students in particular post all manner of personal details to social networking sites without considering who might see them - either now, or down the road when they're looking for jobs, and prospective employers are liable to make use of Google.
But what happens if and when we have security-conscious web users and genuinely anonymous net access? The current laws on jury process evolved when the only opportunity a juror had to seek outside advice was to go down the pub. How well will they work when user randomjuror53234 posts a query on an anonymised discussion board?
Leaving aside the fact that this person now faces the prospect of being charged with Contempt of Court, this once again highlights the way in which Facebook is so often used without any regard to the privacy settings available. My friend Pangloss has many a time lamented the way in which students in particular post all manner of personal details to social networking sites without considering who might see them - either now, or down the road when they're looking for jobs, and prospective employers are liable to make use of Google.
But what happens if and when we have security-conscious web users and genuinely anonymous net access? The current laws on jury process evolved when the only opportunity a juror had to seek outside advice was to go down the pub. How well will they work when user randomjuror53234 posts a query on an anonymised discussion board?
Monday, 17 November 2008
Caught in the Middle
via The Register - which runs the story under the by-line 'Magazine faces legal action for bowing to legal action' - news of how The New Statesman is being threatened with a libel suit via whistle-blowing site Wikileaks for removing, under legal threat, a link to a WikiLeaks article.
This sounds a rather odd course of action to me. For starters, removing a link to a story is a long way short of saying, or even clearly implying, that it is inaccurate. Furthermore, The New Statesman was presumably acting under legal advice and quite possibly in response to an interim injunction, in which case it would have been anything from inadvisable to illegal for it not to take down the link.
If Wikileaks does file a claim, I can see another court hearing coming up - an application for summary judgment and/or striking out.
This sounds a rather odd course of action to me. For starters, removing a link to a story is a long way short of saying, or even clearly implying, that it is inaccurate. Furthermore, The New Statesman was presumably acting under legal advice and quite possibly in response to an interim injunction, in which case it would have been anything from inadvisable to illegal for it not to take down the link.
If Wikileaks does file a claim, I can see another court hearing coming up - an application for summary judgment and/or striking out.
Friday, 14 November 2008
Opening Up the Telecoms Package for the Open Rights Group
My posting record has continued to be a bit thin of late thanks to the pressures of the Bar Vocational Course. (And if you're reading this in the UK, BBC 2's new series 'The Barristers' starts tonight, featuring the joys of the BVC). However, part of my work of late has been a pro bono project that came my way from the Open Rights Group, via Prof Lilian Edwards (aka Pangloss).
Detailed accounts of the background are given by ORG here and Prof Edwards here, but in a nutshell I was asked to review the latest batch of amendments to the core group of Directives governing EU telecoms law. In particular, my remit was to see what had happened to measures inserted by MEPs to ensure that disconnection sanctions - the so-called 'Three Strikes' measures - could only be implemented via due process of law. I was very helpfully assisted by Monica Horten of IpTegrity.com, whilst Judith Rauhofer at UCLAN provided useful advice and of course Prof Edwards oversaw the whole effort; I'm especially grateful to her for comments on the text as it developed and for putting together a very clear and forceful summary for our final report.
Our findings? Yes, there are elements of the Telecoms Package as it stands that raise serious concerns. In particular, some of the measures explicitly inserted by MEPs to ensure due process have disappeared, although it does seem that there are efforts being made to keep at least one in place. Also, some of the definitions of the sort of content or threat that would give grounds for communications providers to read traffic (with associated privacy concerns) are potentially very broad.
I feel I should make my own position clear. As an aspiring IP lawyer I think that copyright protection is a good thing - so long as it is properly regulated, clear in scope and applied under the aegis of the courts. To take an analogy with land law, the law of 'real' property, we regulate land ownership under a system that protects land-owners whilst at the same time recognising rights-of-way, providing for boundary disputes and setting legal constraints on how we deal with land-owners. I don't agree with those who scoff at the whole idea of IP, any more than I'd go along with ideas to allow anyone to do what they wanted on anyone else's land. But equally, nor would I support a proposal to allow large land-owners to take over all responsibility for controlling access to their estates, including the power to decide for themselves if a right-of-way or easement existed and to eject with extreme force anyone they considered might be trespassing. The proposed measures could well lead to providers flagging legitimate peer-to-peer filesharing or fair-dealing use of copyright material as being illicit, whilst denying those affected recourse to the courts to prove their legal rights.
From here on, it's over to the ORG to take this matter forward, and I return to the more mainstream BVC joys of the Civil Procedure Rules, sentencing policy and drafting Particulars of Claim. Oh, and with any luck maybe even posting some IP and technology law stories here - there have certainly been plenty of interest lately. But this has been a fascinating project to be involved with, as well as providing an at times alarming insight into the process by which EU law is made.
Detailed accounts of the background are given by ORG here and Prof Edwards here, but in a nutshell I was asked to review the latest batch of amendments to the core group of Directives governing EU telecoms law. In particular, my remit was to see what had happened to measures inserted by MEPs to ensure that disconnection sanctions - the so-called 'Three Strikes' measures - could only be implemented via due process of law. I was very helpfully assisted by Monica Horten of IpTegrity.com, whilst Judith Rauhofer at UCLAN provided useful advice and of course Prof Edwards oversaw the whole effort; I'm especially grateful to her for comments on the text as it developed and for putting together a very clear and forceful summary for our final report.
Our findings? Yes, there are elements of the Telecoms Package as it stands that raise serious concerns. In particular, some of the measures explicitly inserted by MEPs to ensure due process have disappeared, although it does seem that there are efforts being made to keep at least one in place. Also, some of the definitions of the sort of content or threat that would give grounds for communications providers to read traffic (with associated privacy concerns) are potentially very broad.
I feel I should make my own position clear. As an aspiring IP lawyer I think that copyright protection is a good thing - so long as it is properly regulated, clear in scope and applied under the aegis of the courts. To take an analogy with land law, the law of 'real' property, we regulate land ownership under a system that protects land-owners whilst at the same time recognising rights-of-way, providing for boundary disputes and setting legal constraints on how we deal with land-owners. I don't agree with those who scoff at the whole idea of IP, any more than I'd go along with ideas to allow anyone to do what they wanted on anyone else's land. But equally, nor would I support a proposal to allow large land-owners to take over all responsibility for controlling access to their estates, including the power to decide for themselves if a right-of-way or easement existed and to eject with extreme force anyone they considered might be trespassing. The proposed measures could well lead to providers flagging legitimate peer-to-peer filesharing or fair-dealing use of copyright material as being illicit, whilst denying those affected recourse to the courts to prove their legal rights.
From here on, it's over to the ORG to take this matter forward, and I return to the more mainstream BVC joys of the Civil Procedure Rules, sentencing policy and drafting Particulars of Claim. Oh, and with any luck maybe even posting some IP and technology law stories here - there have certainly been plenty of interest lately. But this has been a fascinating project to be involved with, as well as providing an at times alarming insight into the process by which EU law is made.
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