Stifling bureaucracy is often blamed for discouraging scientists and businesses from participating in the research programmes of the European Commission (EC). But the commission’s notoriously cumbersome procedures and rigid control mechanisms have apparently not prevented a criminal syndicate from conducting a brazen fraud that has siphoned off millions in EC grant funds.

Italian authorities and the European Anti-Fraud Office (OLAF) in Brussels, Belgium, have confirmed that they are prosecuting members of a large network accused of pocketing more than €50 million (US$72 million) in EC grants for fake research projects.

Read more here: http://www.nature.com/news/2011/110615/full/474265a.html

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What key changes does it make?

•  Personal data breaches will now have to be notified to the Information Commissioner;  
• Stronger enforcement provisions; and  
• Consumers will now have to give their consent for the import of cookies on to their machines

Beyond more obvious data protection provisions, like the definition of a ‘personal data breach’ (and according duty to notify the Information Commissioner and the victim – backed by a £1,000 fine, reduced to £800 if paid within 21 days), they also force service providers to take proportionate measures to protect personal data stored or transmitted against accidental or unlawful destruction, accidental loss or alteration. If your webmail was deleted, for example, this may give rise to a breach of statutory duty by the service provider. It does away with allowance for implied consents largely throughout communications law insofar as it relates to businesses using user data or monitoring user usage of services (express consent is now king).

Regulation 10 makes provision to allow police and the security services to have access to personal data of users of public electronic communications networks and services. It also makes provision to compel service providers to establish and maintain procedures to allow access to that data.

Fines for noncompliance with the regulations are now considerably more severe, as they now reflect Data Protection Act fines (of up to £500,000 for grave breaches).

* The three implementing statutory instruments to look out for are:

1. The Electronic Communications (Universal Service) (Amendment) Order 2011;
2. The Electronic Communications and Wireless Telegraphy Regulations 2011; and
3. The Communications Act 2003 (Maximum Penalty for Contravention of Information Requirements) Order 2011

NB: Be aware that, rather unhelpfully, the UK’s main store of legislation (legislation.gov.uk) does not update the text of secondary legislation (such as these Regulations) when they get amended, so it’s unlikely that when browsing the official register of such laws, you’re actually getting an accurate picture of the law. Just saying.

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“Many users of infringing sites may be unaware that the sites they are viewing carry content unlawfully, and they may find it useful for such unlawful sites to be less readily available.”

Just… wow. Orwell would be proud of such a literary creation. I thought previous New Labour governments were Big Nanny, but this is just absurd. A website owner does not have full rights to the words on the website. Please, Mr ISP, take an active and detailed concern in what websites I visit, and save me from the commercial horror!

Full letter available from its eventual recipient, Matthew Temple (http://www.mattytemple.com/)

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On this issue, we disagree.

—-

Tim – I feel this misses Google’s point almost entirely. How does cheaper dispute resolution help a business that argues that it the reason it could build a billion-dollar business based on creating value for users is that the US doesn’t grant as far-reaching intellectual monopolies as the UK does. It thrives, and employs tens of thousands of people, without relying so heavily on monopoly-backed scarcity, whereas the harder our industries try to do so (no videos on YouTube, unfair, draconian DRM, paywalls, even rootkits), the harder the market has punished them.

I’ll return to this, but I feel it’s only fair to address your suggestion more head-on, first.

If ADR is the solution, we already (post Woolf reforms) have CPR costs biases in favour of parties that want to pursue cheaper alternatives to lawsuits (see this important bit of our litigation rules, the Civil Procedure Rules’ Pre-Action Protocol). So far as I know, this includes copyright, so what can be added? Why is it not working (if indeed it isn’t?)

Would a singular ADR mechanism be better than the free choice of ADR given to parties at the moment? I don’t think it will.

The copyright industries have so far proven themselves to be tremendously capable and ardent lobbyists. A single ADR ‘choke point’ is a wonderful opportunity for focused and (cost-) effective lobbying – especially when, as you suggested, it should be staffed by industry practitioners (and where are the representatives of institutions, academics and other noncommercial/non-market users?). This allows the straightforward corrupting influence of the ‘revolving door’ effect into an ADR process, whereas other ADR is usually overseen by barristers or off-duty judges. I can’t help but allege that other forms of corruption would also find purchase in this suggested system, all the more so because (presumably) the RCP would be protected from legal liability from its decisions, so systematic misrepresentations of the law would go unpunished.

–

Now, to return to the part about the UK’s overstrong copyright system. As I said, Google built a billion-dollar, 20,000-staff-strong business because it wasn’t overly restricted by intellectual monopoly. So pointing them to ADR doesn’t really help, when it says that such monopolies / IP rights are too strong in the UK.

But what ADR suggestions also totally, totally miss is the fact that the once-professional copyright arena is now swamped with millions upon millions of non-market participants. The digital era has made everyone with an email account or an iPhone a publisher. Copyright law *has* to evolve to match the revolution in who it binds. And only block exemption and DRM, not ADR, can meet that need.

I am not going to pay hundreds of pounds to ask a Pearson-staffed panel whether I can send my mum one paragraph or two of an FT article that talks about me. WhatDoTheyKnow is not a business – so it has no business model into which in can fit/attenuate the cost of ADR when a council relies on copyright to prevent WDTK from publishing/publicising FOI returns.

There is no conceivable way in which non-market copyright actors can stomach the cost of either ADR or full-on litigation. Either nonmarket uses are granted appropriate block exemption, or they must be asked to remove themselves from the copyright arena – hand in any device capable of copying text, images, sound or video (or have it taken from you after three strikes).

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The whole complaint will leave your jaw on the floor, but the casual use of the English language by the AG who asked for the Judge to be punished will make you wince when you read what sanction he demands:

(read the whole complaint)

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Copyright (CC-BY-NC) Santanu Vasant

There’s very simple but well-delivered blog post by Rob Weir doing the rounds at the moment that counterattacks a recent position adopted by the BSA (Business Software Alliance – a lobby for traditional software providers).

The UK Cabinet Office (a core unit of the government here) declared that it was in everyone’s interests if royalty-free, open technology standards were adopted (encouraging, as they do, interoperability and ease of migration between competing providers, without having to pay royalties just to use certain file formats).

The BSA lobby insists: by preferring technologies “publicly available at zero or low cost” and that have “intellectual property made irrevocably available on a royalty-free basis” (the UK Cabinet Office’s words), the BSA claims that the government “will inadvertently reduce choice, hinder innovation and increase the costs of e-government”. Such courage and brazen ballsiness is rare today, so the BSA’s lack of sanity can only be saluted. They clearly are bold explorers of alternate realities, pioneering a potent melange of absurdity and conviction.

So, back to the blogpost. Luddismm and monopoly are actually pretty old-school. The post revives a clever, ironic piece by Bastiat that reaches through the ages to elegantly skewer the BSA. It dates back from 1845, 5 years before his death. It is an open letter to the French Parliament entitled A PETITION From the Manufacturers of Candles, Tapers, Lanterns, sticks, Street Lamps, Snuffers, and Extinguishers, and from Producers of Tallow, Oil, Resin, Alcohol, and Generally of Everything Connected with Lighting.

Plus ca change…

To the Honourable Members of the Chamber of Deputies.

Gentlemen:

You are on the right track. You reject abstract theories and have little regard for abundance and low prices. You concern yourselves mainly with the fate of the producer. You wish to free him from foreign competition, that is, to reserve the domestic market for domestic industry.

We come to offer you a wonderful opportunity for your — what shall we call it? Your theory? No, nothing is more deceptive than theory. Your doctrine? Your system? Your principle? But you dislike doctrines, you have a horror of systems, as for principles, you deny that there are any in political economy; therefore we shall call it your practice — your practice without theory and without principle.

We are suffering from the ruinous competition of a rival who apparently works under conditions so far superior to our own for the production of light that he is flooding the domestic market with it at an incredibly low price; for the moment he appears, our sales cease, all the consumers turn to him, and a branch of French industry whose ramifications are innumerable is all at once reduced to complete stagnation. This rival, which is none other than the sun, is waging war on us so mercilessly we suspect he is being stirred up against us by perfidious Albion (excellent diplomacy nowadays!), particularly because he has for that haughty island a respect that he does not show for us.

We ask you to be so good as to pass a law requiring the closing of all windows, dormers, skylights, inside and outside shutters, curtains, casements, bull’s-eyes, deadlights, and blinds — in short, all openings, holes, chinks, and fissures through which the light of the sun is wont to enter houses, to the detriment of the fair industries with which, we are proud to say, we have endowed the country, a country that cannot, without betraying ingratitude, abandon us today to so unequal a combat.

Be good enough, honourable deputies, to take our request seriously, and do not reject it without at least hearing the reasons that we have to advance in its support.

First, if you shut off as much as possible all access to natural light, and thereby create a need for artificial light, what industry in France will not ultimately be encouraged?

If France consumes more tallow, there will have to be more cattle and sheep, and, consequently, we shall see an increase in cleared fields, meat, wool, leather, and especially manure, the basis of all agricultural wealth.

If France consumes more oil, we shall see an expansion in the cultivation of the poppy, the olive, and rapeseed. These rich yet soil-exhausting plants will come at just the right time to enable us to put to profitable use the increased fertility that the breeding of cattle will impart to the land.

Our moors will be covered with resinous trees. Numerous swarms of bees will gather from our mountains the perfumed treasures that today waste their fragrance, like the flowers from which they emanate. Thus, there is not one branch of agriculture that would not undergo a great expansion.

The same holds true of shipping. Thousands of vessels will engage in whaling, and in a short time we shall have a fleet capable of upholding the honour of France and of gratifying the patriotic aspirations of the undersigned petitioners, chandlers, etc.

But what shall we say of the specialities of Parisian manufacture? Henceforth you will behold gilding, bronze, and crystal in candlesticks, in lamps, in chandeliers, in candelabra sparkling in spacious emporia compared with which those of today are but stalls.

There is no needy resin-collector on the heights of his sand dunes, no poor miner in the depths of his black pit, who will not receive higher wages and enjoy increased prosperity.

It needs but a little reflection, gentlemen, to be convinced that there is perhaps not one Frenchman, from the wealthy stockholder of the Anzin Company to the humblest vendor of matches, whose condition would not be improved by the success of our petition.

We anticipate your objections, gentlemen; but there is not a single one of them that you have not picked up from the musty old books of the advocates of free trade. We defy you to utter a word against us that will not instantly rebound against yourselves and the principle behind all your policy.

Will you tell us that, though we may gain by this protection, France will not gain at all, because the consumer will bear the expense?

We have our answer ready:

You no longer have the right to invoke the interests of the consumer. You have sacrificed him whenever you have found his interests opposed to those of the producer. You have done so in order to encourage industry and to increase employment. For the same reason you ought to do so this time too.

Indeed, you yourselves have anticipated this objection. When told that the consumer has a stake in the free entry of iron, coal, sesame, wheat, and textiles, “Yes,” you reply, “but the producer has a stake in their exclusion.” Very well, surely if consumers have a stake in the admission of natural light, producers have a stake in its interdiction.

“But,” you may still say, “the producer and the consumer are one and the same person. If the manufacturer profits by protection, he will make the farmer prosperous. Contrariwise, if agriculture is prosperous, it will open markets for manufactured goods.” Very well, If you grant us a monopoly over the production of lighting during the day, first of all we shall buy large amounts of tallow, charcoal, oil, resin, wax, alcohol, silver, iron, bronze, and crystal, to supply our industry; and, moreover, we and our numerous suppliers, having become rich, will consume a great deal and spread prosperity into all areas of domestic industry.

Will you say that the light of the sun is a gratuitous gift of Nature, and that to reject such gifts would be to reject wealth itself under the pretext of encouraging the means of acquiring it?

But if you take this position, you strike a mortal blow at your own policy; remember that up to now you have always excluded foreign goods because and in proportion as they approximate gratuitous gifts. You have only half as good a reason for complying with the demands of other monopolists as you have for granting our petition, which is in complete accord with your established policy; and to reject our demands precisely because they are better founded than anyone else’s would be tantamount to accepting the equation: + x + = -; in other words, it would be to heapabsurdity upon absurdity.

Labour and Nature collaborate in varying proportions, depending upon the country and the climate, in the production of a commodity. The part that Nature contributes is always free of charge; it is the part contributed by human labour that constitutes value and is paid for.

If an orange from Lisbon sells for half the price of an orange from Paris, it is because the natural heat of the sun, which is, of course, free of charge, does for the former what the latter owes to artificial heating, which necessarily has to be paid for in the market.

Thus, when an orange reaches us from Portugal, one can say that it is given to us half free of charge, or, in other words, at half price as compared with those from Paris.

Now, it is precisely on the basis of its being semigratuitous (pardon the word) that you maintain it should be barred. You ask: “How can French labour withstand the competition of foreign labour when the former has to do all the work, whereas the latter has to do only half, the sun taking care of the rest?” But if the fact that a product is half free of charge leads you to exclude it from competition, how can its being totally free of charge induce you to admit it into competition? Either you are not consistent, or you should, after excluding what is half free of charge as harmful to our domestic industry, exclude what is totally gratuitous with all the more reason and with twice the zeal.

To take another example: When a product — coal, iron, wheat, or textiles — comes to us from abroad, and when we can acquire it for less labour than if we produced it ourselves, the difference is agratuitous gift that is conferred up on us. The size of this gift is proportionate to the extent of this difference. It is a quarter, a half, or three-quarters of the value of the product if the foreigner asks of us only three-quarters, one-half, or one-quarter as high a price. It is as complete as it can be when the donor, like the sun in providing us with light, asks nothing from us. The question, and we pose it formally, is whether what you desire for France is the benefit of consumption free of charge or the alleged advantages of onerous production. Make your choice, but be logical; for as long as you ban, as you do, foreign coal, iron, wheat, and textiles, in proportion as their price approaches zero, how inconsistent it would be to admit the light of the sun, whose price is zero all day long!

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“All of your messages with someone will be together in one place, whether they are sent over chat, email or SMS. You can see everything you’ve discussed with each friend as a single conversation.

I’m intensely jealous of the next generation who will have something like Facebook for their whole lives. They will have the conversational history with the people in their lives all the way back to the beginning: From “hey nice to meet you” to “do you want to get coffee sometime” to “our kids have soccer practice at 6 pm tonight.” That’s a really cool idea.”

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It would be interesting to know what more the world of software development could teach the law profession. Without further ado, I re-post the following summary of the principles of Unix Programming:

• Rule of Modularity: Write simple parts connected by clean interfaces.

• Rule of Clarity: Clarity is better than cleverness.

• Rule of Composition: Design programs to be connected to other programs.

• Rule of Separation: Separate policy from mechanism; separate interfaces from engines.

• Rule of Simplicity: Design for simplicity; add complexity only where you must.

• Rule of Parsimony: Write a big program only when it is clear by demonstration that nothing else will do.

• Rule of Transparency: Design for visibility to make inspection and debugging easier.

• Rule of Robustness: Robustness is the child of transparency and simplicity.

• Rule of Representation: Fold knowledge into data so program logic can be stupid and robust.

• Rule of Least Surprise: In interface design, always do the least surprising thing.

• Rule of Silence: When a program has nothing surprising to say, it should say nothing.

• Rule of Repair: When you must fail, fail noisily and as soon as possible.

• Rule of Economy: Programmer time is expensive; conserve it in preference to machine time.

• Rule of Generation: Avoid hand-hacking; write programs to write programs when you can.

• Rule of Optimization: Prototype before polishing. Get it working before you optimize it.

• Rule of Diversity: Distrust all claims for “one true way”.

• Rule of Extensibility: Design for the future, because it will be here sooner than you think.

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In 2008, economists Richard Thaler and Cass Sunstein made waves with a book called Nudge. It advocated the idea that socially beneficial policy could be implemented without forcing anyone to behave a particular way. All you had to do was make the socially optimal option the default; e.g. saving a certain percentage of your monthly wages.

Anybody not happy with that could opt out and do something different. No freedom or choice is taken away from anyone: you’re just nudged in the right direction.

Well, could nudges help something as ‘far out’ as copyright?

Advocates of the copyleft movement think that in this day and age, more of culture should be in the commons: free to be shared, remixed and disseminated. Scarcity business models are completely out of touch with a world where copy, paste, share & remix is such a ubiquitous feature of cultural participation.

So why not nudge creative works into the commons? I’m talking about default public licensing of copyrighted works (not to be confused with – illiberal and paternalistic – compulsory licensing).

The idea is that by default, new published work would be licensed to the public for non-commercial sharing and remixing (those familiar with the Creative Commons will recognise this as a CC Attribution-NonCommercial-ShareAlike licence).

The author would still be free to override that with any other licence. Copyright it would still fully apply to works; the rights “castle” is still there from day zero of a work. But by default, a non-commercial share/remix “drawbridge” is let down.

You would still have to go to the artist and negotiate a deal (or at least, ask for permission) if you intended to make money from the work or a from remix of it. And she would always be credited, and so the more you share, the more famous the artist would get.

I am posting this because it surely can’t be a new idea, but my googling hasn’t thrown anything up yet. I have a dozen questions/ideas, and so was hoping you either could refer me to existing discussions, or give me your own thoughts (in the comments below, or contacting me directly).

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Wonderful.

Was the current piracy regime so badly broken that this needed to happen?

The Anti-Counterfeiting Trade Agreement (ACTA), the Gallo report, the UK’s Digital Economy Act, and in particular, the brand Combating Online Infringement and Counterfeits Bill, will all:

a) seem completely warranted, and yet

b) will make even moderates presently optimistic about Spotify making copyright enforcement hardening unnecessary, despair

c) finally, the awful copyright policy we’ve seen pushed in 2010 (see above) will seem inadequate to all, and even harsher measures will be necessary. “Throw the safe harbour / intermediary immunity out the window, allow wanton monitoring, consider making wilful downloading of infringing content illegal, bring back DRM, etc… Three strikes? Let’s make it two!! Children are in danger in this Somalia of unregulated theft and piracy*.

And if Mulve had never come along? people would just learn how to conduct their business online with greater discretion. Privacy, anonymity, encryption, closed communities, being selective about which computers you let your PC connect to – hardly a bad schooling?

If it ain’t badly broke, don’t fix it. This is a step backwards for all concerned, not least the freetards that will gorge themselves on a service that seems too good to be true. As an acquaintance recently pointed out, if you don’t know who the free lunch is, there’s a good chance you’re it.

*yes, Lord Andrew Lloyd-Webber really is that cock-mouthed. Children in danger – what a hammy line to trot out, and in the House of Lords. I mean really. And a ‘Somalia of unregulated theft’? As opposed to what, a Somalia of regulated theft? A Wales of unregulated theft? What on Earth does that mean??

How tragic that a legislator can admit that “I do not come equipped with the answers; frankly, they are way beyond my world of musical theatre” in Parliament, then gets so widely lauded (for a rhetoric and bad stat-laden tragic, melodramatic pantomime of a speech) as to be able to kick start the horrifying fisting of the Digital Economy Act (by which I mean hijacking a good bill that was about boosting Britain’s digital telecoms infrastructure, and filling it with copyright enforcement measures so draconian they would have derailed the bill completely but for the use of the ‘wash up’ subterfuge).

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Thing is, with all the press and moaning that DRM (Digital Rights Management; a.k.a locks on mp3 files, DVDs, software and so on) has received, it strikes me that not one person has ever used the catchily-named “Remedy where effective technological measures prevent permitted acts”.

There’s a whole host of stuff you’re allowed to do with content under UK copyright law. I tried to find a good list online where someone explains them, but oddly, I couldn’t (I’d love a pointer to one though!). The best I could find was this, on the UK IPO website.

If DRM or any other technology stops you, you can report them to the Secretary of State, who can slap them around as much as he considers necessary in order to give you your rights.

I just thought that this should be more widely known. Feel free to pass this info on if you think so too.

*”The Relationship Between Copyright and Contract Law report, 2010”

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The case was part of the ongoing Bratz versus Barbie legal saga – where Mattel is trying to effectively take control of the Bratz dolls empire, developed in a rogue Mattel employee’s spare time. Mattel got first blood in a very significant 2008 victory. To quote the judge (p7): “In effect, Barbie captured the Bratz”.

At the heart of the issue was the rogue’s contract, in which he agreed to Mattel owning all his ‘inventions’ developed at any time during his employment with Mattel. The term

‘includes, but is not limited to, all discoveries, improvements, processes, developments, designs, know-how, data computer programs and formulae, whether patentable or unpatentable’

– and the lower court concluded that this included his ideas for Bratz dolls. Ideas are commercial property, even if not copyrightable, patentable or otherwise protectable.

Justice Kozinski held that the wording didn’t include ideas. The legal reasoning he uses to fall the other side of what is a rather fine line, playing on ambiguity and opting for narrow interpretation, is not wholly convincing (even if tenable), and arguably speaks more to his general views – see p9 of the judgement. But it’s sensible and equitable adjudication. But it isn’t crucial, because he then turns his guns on the remedy imposed by the lower court even if he were wrong.

He later undoes the work of previous courts that concluded that “at any time during his employment” included evenings, weekends and time off, deciding that it was so ambiguous, it should go to a jury, not be decided by judges.

To impose a constructive trust on the Bratz trademark portfolio (effectively, to say that Mattel’s ownership effectively reaches through the entirety of all parties’ efforts, investment and inventiveness in developing the Bratz brand) is grossly inequitable. It’s not wrong for the property subject constructive trusts to be handed back to the victor plus what rise in value has occurred naturally – you prevent a fraudster/thief from getting unjustly enriched using an asset that’s yours. But the line should be drawn, says Kozinski, at value added to the constructive trust assets by the hard labour of the loser. You avoid taking the defendant’s clothes along with the pound of flesh.

Further, after displaying an admirable if slightly bizarre familiarity with dolls and cartoon characters* (covering Japanese anime to Betty Boop), and discussing the utility of dolls clothes (“Dolls don’t feel cold or worry about modesty. The fashions they wear have no utilitarian function”) he finds that Mattel is only entitled to a limited standard of protection, that of virtual identity, since there is a limited range of expression of the idea:

‘Mattel [is not] entitled to broad protection because there are many ways one can depict an exaggerated human figure. It’s true that there’s a broad range of expression for bodies with exaggerated features: One could make a fashion doll with a large nose instead of a small one, or a potbelly instead of a narrow waist. But there’s not a big market for fashion dolls that look like Patty and Selma Bouvier. Little girls buy fashion dolls with idealized proportions—which means slightly larger heads, eyes and lips; slightly smaller noses and waists; and slightly longer limbs than those that appear routinely in nature. But these features can be exaggerated only so much: Make the head too large or the waist too small and the doll becomes freakish, not idealized.’

And so to the third and final, and possibly most instructive, part of the judgement, addressing the question are the Bratz dolls substantially similar to the mock-up dolls which the rogue made during his Mattel employment? If yes, the after-hours mock-ups (which would hypothetically be owned by Mattel) would have been copyrighted works infringed by the dolls. Kozinski says: no. The reason, he explains, is that an idea (for bratty dolls) is not copyrightable. Only the unique expression of the bratty doll concept is copyrightable. Once you strip away all obviously un-copyrightable features: nose, hair, eyes, etc, the sole remaining ground for the lower court’s finding of copyright infringement withers under Kozinski’s gaze – because of the idea/expression dichotomy so crucial to copyright law:

Mattel can’t claim a monopoly over fashion dolls with a bratty look or attitude, or dolls sporting trendy clothing—these are all unprotectable ideas.

Nice to know that a pernicious and bratty lawsuit over pernicious and bratty dolls can have intelligent, informative high brow dividends. It’s a victory for common sense and good, equitable justice, founded on a solid grasp of IP law and policy; the title of this piece is taken verbatim from the final words of the judgement.

*From a judge who got into hot water for ‘hacking’ into the judicial IT system to disable the ‘anti-porn’ web filter!

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