Libel and Science: Not Happy Bedfellows

(Yes, this is my third blog entry in as many days. You might almost think I'd finished the BVC.)

Since I proclaim this to be an IP and Technology Law blog it might seem odd to talk about Libel. True, libel tends to be seen these days as part of the wider field of Media Law, itself a close cousin to IP. Nonetheless it is not an area I have taken much interest in beyond the curiosity most of us have about an area of law that positively excels in the parties being even ruder about each other than normal.

One case has changed that, however: British Chiropractic Association v Singh. As has been extensively reported, the BCA is suing science writer Simon Singh over an article he wrote for The Guardianlast year, in which he cast doubt in the strongest terms over the BCA's claim that chiropractic - a form of 'complementary medicine' that involves manipulating the spine - could help with childhood diseases such as colic. Now, I came into law from a scientific/engineering background, and perhaps rather naively I tend to assume that they way you settle scientific disputes, as distinct from ones about negligence, contracts or badly-placed hedges, is by rational argument on the basis of the evidence. The BCA beg to differ, and have sued Singh.

Why am I interested? For one thing, I enjoy Singh's writing. For another, I was at Imperial College with Singh back in the late 1980s, and although I can't say we knew one another well I'll confess to a degree of loyalty to a fellow alumnus. Above all though I consider it profoundly wrong that defamation law is being used to substitute for scientific debate.

Much, much more detail about the case than I can go into here has been posted by Jack of Kent; see his blog for updates and links to the now very extensive coverage of this issue in the wider press. I am writing this though because BCA v Singh has been an eye-opener for me as to some of the more disturbing aspects of defamation law. It is strange enough that, unlike in most other causes of action, the burden of proof lies principally on the defendant. It is even more disconcerting when that burden is pushed to almost insurmountable levels by preliminary rulings that can define the scope of the alleged libel in terms that the defendant may be wholly unable to prove. Finally, whilst all litigation can be expensive, the costs of libel cases in England can be positively ruinous; a recent study by the University of Oxford found that a libel trial in England typically costs 140 times the average cost in the rest of Europe.

Whatever the issues with libel trials in general though, it above all remains wholly inappropriate to use this cause of action to stifle scientific debate. A positively stellar list of luminaries has signed a statement to this effect; ten thousand more readers have added their names, myself amongst them. The progress of science and medicine depends on open, frank discussion of the merits and hazards of treatments, be they conventional or complementary. Seeking to suppress such discussion helps no-one.

Singh is currently seeking leave to appeal the preliminary ruling in this case. I am sure Jack of Kent will be first with news whatever happens. In the mean time I earnestly hope for an outcome that is not only good news for Singh but also good news for everyone who writes about contentious aspects of science.

Digital Britain meets Amendment 138

The Government's Digital Britain report came out yesterday (download a copy from here) and has already drawn comment from several of my fellow bloggers (panGloss and Technollama in particular). Given my involvement in ORG's analysis of the Telecoms Package, my particular interest is in how far this report goes in acknowledging the concerns ORG raised, especially in relation to so-called 'Three Strikes' sanctions for alleged copyright infringement.

The first main area of interest is actually from near the end of the report. Chapter 8, on Digital Government, places great store on the extent to which essential government services will increasingly be delivered online. Indeed, the report refers to a 'Digital Switchover' of such services, akin to that already taking place for analogue broadcast. This is relevant because it emphasises just how serious a sanction disconnection from the Internet would be in such a world. As para 8.16 notes, candidates for early switchover include electoral and school registration and debt and redundancy advice; denying access to such services would very much engage human rights concerns. This may be why Chapter 4, relating to creative industries, is not as draconian as some observers may have expected; there may well be growing awareness within government that if 'digital exclusion' is seen as a social ill, it is hardly appropriate to wave it as a potential sanction.

Turning to Chapter 4, other commentators have noted that the report acknowledges rights-holder claims of economic damage through file-sharing. Having said that, it's worth noting that it does not do so uncritically - para 4.17 is careful to use qualifiers such as 'indicated' and 'claim'. Nonetheless, HMG sets out its position firmly in the next paragraph, describing online piracy as a 'serious offence' and stating that a 70-80% reduction should be the government target. It goes on to dismiss the views of the 'minority of the anarchic'; I wonder if this part of the report was written before or after the Swedish Pirate Party got their first MEP? Now, I don't agree with the PP's position, but its electoral success in Sweden (and this report harps on a lot about looking to Scandinavian and Nordic models for IPR reform) does indicate a significant degree of public unhappiness and disengagement with mainstream views of IPR, and I'm not sure such positions should be dismissed rather than engaged with.

As to practical measures, the report calls for an industry body to be set up under legislative oversight to address rights issues. This is in line with proposals in the Telecoms Package to "promote cooperation between undertakings providing electronic communications networks and/or services and the sectors interested in the promotion of lawful content in electronic communication networks and services" (in the Universal Services Directive). What about sanctions, though? Much discussion has been of the 'Three Strikes and you're Out' model proposed by the French Government under the recently-failed HADOPI legislation, that would have an escalating series of notifications and warnings upon allegation of copyright infringement culminating in disconnection. What we see in the Digital Britain report is rather different though. As per the box on page 113, following para 4.31, the proposal seems to be for notification and warning accompanied by collection of evidence to be made available via court order. One might term this 'Two Strikes, Then We Let Someone Sue You'.

The report goes on to list other sanctions that might be brought into play if this approach does not lead to the desired reduction in file-sharing. The first point is that this implies that it is anticipated that legal action will be via conventional channels and sanctions, i.e. damages where infringement is proven in court. Secondly, even the prospective future measures seem to stop short of disconnection. They included throttling, shaping and various targeted blocking approaches that seem aimed at limiting Internet access to certain sites or services rather than stopping it altogether. It's also not clear though whether these sanctions will come as the third 'strike', via court order, or as a consequence of one of the earlier warnings, at the behest of the ISP.

Now, how does this tie in with the successful campaign to save Amendment 138, the EUP-sponsored provision that would require sanctions to be in accordance with due legal process? As passed by the EUP in May, the Amendment incorporates the following text into Article 8(4)(h) of the Framework Directive:

"applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent"

As the late Professor Joad would have put it, it all depends on what you mean by "fundamental rights and freedoms of end-users". If you confine these to the right to have Internet access at all, as hinted at by Chapter 8's discussion of ubiquitous and essential digital services, then Chapter 4's proposals probably are compliant with Amendment 138. There is no suggestion that Internet access would be cut off altogether, even for the most persistent offenders (although they might be sued into penury). However, if you take a wider view, you might argue that the other sanctions discussed such as constraining or blocking certain services might well be an infringement, and given that it seems that these will be 'strike 2', at the ISP's discretion, rather than 'strike 3' after a court order, then on such an interpretation they would not be compliant with Amendment 138.

To summarise, what we have here is a report that seems to acknowledge the folly of threatening total disconnection from the Internet as a sanction for alleged rights infringement, and which puts forward proposals that would, as per Amendment 138, require a judicial ruling before opening up alleged file-sharers to serious sanctions. What is not clear, however, is whether this also applies to other technical measures such as blocking or throttling, and this is a point on which further consultation should concentrate.

Hoffman on Laddie on Trade Marks

I've writter before about the legacy of Sir Hugh (formerly Mr Justice) Laddie, and his contribution to the development of IP law. This evening saw the first Sir Hugh Laddie Lecture at the Institute of Brand and Innovation Law he founded at UCL, featuring Lord Hoffman on the topic of Sir Hugh's dealings with the ECJ on the question of what exactly was the function of a trade mark.

It was a very good talk, and a fitting tribute to Sir Hugh. As Lord Hoffman readily admitted, it did not contain much in the way of radical revelation into trade mark law. Rather, he sought to trace the development of the tension between the English and European courts as to trade mark function via a series of cases in which Laddie J (as he then was) had been involved.

Now, it was clear from this that Lord Hoffman was setting out to tell us a story, and when you are being told a story it's important to bear in mind that the narrator will inevitably be imposing some sort of narrative structure and goal on it, if only to make sure that it is a story. Here, the narrative was very much the doughty English judge defending the traditional view of a trademark purely as a badge of origin against the encroaching European tide of wider trade mark function. This isn't to say that Lord Hoffman is anti-European; rather, he was to an extent telling the story of how a friend of his had done battle to preserve the understanding of what a trade mark was for that had dominated English IP law since the 1938 Trade Mark Act. That Act had made it clear that a trade mark had one role and one role alone: to indicate to a buyer where goods had originated. The 1994 Trade Mark Act, by implementing the common EC Directive on trade mark law, imported a new approach with more than a whiff of the traditional Benelux approach of viewing a trade mark as having aspects more akin to a brand.

Matters came to a head with the famous (or infamous, depending on your point of view) case of Arsenal v Reed. It was clear from Lord Hoffman's summary of the facts where his sympathies lay; as he put it, by selling scarves bearing the word (and trade mark) 'Arsenal', Mr Reed was simply saving his customers from scrawling the club's name on a blank scarf rather than asserting that his goods originated with the Gunners. Laddie J had felt much the same way, but had been obliged to refer the point to the ECJ. The A-G's Opinion had been sympathetic, and the ECJ had seemingly taken it aboard - but then found that in the current case, Mr Reed's actions in fact were trading on the reputation of Arsenal's trade mark. When the case returned to England, Laddie J promptly held that the ECJ had made a finding of fact - which was his job - and for the first and apparently only time anywhere refused to follow the ECJ. The Court of Appeal later took a rather more diplomatic (I've heard other words used) approach, and in the end Mr Reed lost. But Arsenal v Reed - along with cases on repackaging of drugs - brought home how much the 1994 Act had changed trade mark law, and how difficult it was to preserve the traditional narrow interpretation in English law of the function of a trade mark.

So what do we take from this? As I said, Lord Hoffman's narrative was clear. I can imagine of course a corresponding talk by a senior ECJ jurist taking, as its narrative thread, the steady exposure of England's old-fashioned and eccentric interpretation of what a trade mark was for in the face of sensible efforts to harmonise European law in this area. But it's hard to disagree with Lord Hoffman's closing comment that if, in implementing the Trade Marks Directive, Parliament had meant such a fundamental change away from a narrow right towards broader protection of what are in effect brands, then it should have clearly said so. All in all, an interesting and thought-provoking evening, and I hope that the Laddie Lecture goes on the way it started.

Good News on Three Strikes

In one of the more pleasant surprises of the long-running saga of the updates to the EU Telecoms Package (see my earlier posts here, here and here) the EU Parliament has soundly rejected moves to strip out legal protection for users against disconnection without recourse to law. Amendment 138 is back, and more importantly has been put back by the deliberate vote of a large majority of MEPs.

More on the story from Pangloss (thanks for the kind words, but many other people did far more than me!), Technollama and Monica Horten, who provided invaluable assistance to my ORG work regarding the minutiae of EC legislative procedures.

This is not the end of the matter, or even, to quote Churchill, the beginning of the end. But with any luck it is the end of the beginning, especially if there is now wider awareness of the issues among MEPs.

SCRIPTed, Vol 6 No 1, is now online

Yes, SCRIPTed, Edinburgh University's online journal of Law, Technology and Society, has reached its sixth volume, hence the cover picture. If you look hard at the top left corner of the big version, you can just see your humble scribe (look for the blue tie and thinning thatch).

Volume 6 Number 1 features another excellent set of papers and analysis pieces:

Peter S Jenkins on Virtual Worlds As A New Game Theoretic Model For International Law: The Case Of Bilateral Investment Treaties

Philip Leith and Maeve McDonagh on New Technology and Researchers’ Access to Court and Tribunal Information: the need for European analysis

Eddy D Ventose on Patent Protection for Second and Further Medical Uses Under the European Patent Convention

Nigel Waters on The APEC Asia-Pacific Privacy Initiative – A New Route To Effective Data Protection Or A Trojan Horse For Self-Regulation?

Rolf H. Weber and Romana Weber on Social Contract for the Internet Community? Historical and Philosophical Theories as Basis for the Inclusion of Civil Society in Internet Governance?

Wiebke Abel and Burkhard Schafer on The German Constitutional Court on the Right in Confidentiality and Integrity of Information Technology Systems – a case report on BVerfG, NJW 2008, 822

Daniel B. Garrie and Maureen Duffy-Lewis on Conquering the Tower of e-Discovery Babel: New Age Discovery for the 21st Century

Miranda Mowbray on The Fog over the Grimpen Mire: Cloud Computing and the Law

Herbert Zech on Nanotechnology – New Challenges for Patent Law?

plus conference reports and book reviews.

Congratulations to Wiebke, Shawn and everyone else at SCRIPTed for another excellent issue.

Amazon, Twitter, and the Gay Books Purge that Wasn't

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.

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.

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...

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.

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).