Just back from the third instalment of GikIII, exhausted, flu-ridden and exhilarated. Horrible to puff one's own baby, but I continue to be staggered at people's inventiveness, cleverness and sheer powerpoint bravado when they pull the stops out for GikIII. Best quote I've seen so far from virgin attendee, machinima geek and Twitter blogger Hugh H:
"What's fascinating about this conference - well, one of the things - is the level of showmanship. It's like a very lawyerly open-mic night."
I think that really sums it up :-)
More coherence soon , when I am over my man-flu (and decided it really isn't leprosy. Andrea, I expect my eye patch to be in the e-post).
Powerpoints will also I imagine be up very shortly as soon as Andres has got over his hangover, er jetlag. (Actually some of them are already here.)
Many thanks to the as ever consummately efficient Ian Brown for chairing this year (while organising a few million pound grants on the side in teabreaks) and the attendees and participants for as ever putting their and soul into this conference. Next year: possibly in Amsterdam! and certainly earlier in September to avoid start-of-term clashes which kept a few regulars away. Watch this space! Also please let me know if you blog GikII and I might conceivably have missed it.
Friday, September 26, 2008
Wednesday, September 17, 2008
Still Not The End of the World: No Britains Dead
Wired blog reports on a remarkable recent example of hacking, in no less a venue than the Large Hydron Collider in Geneva at CERN :
"Shortly after physicists activated the Collider on Wednesday, hackers identifying themselves as Group 2600 of the Greek Security Team accessed computers connected to the Compact Muon Solenoid detector, one of four key subsystems responsible for monitoring the collisions of protons speeding around the 18-mile track near Geneva, Switzerland.
According to the Telegraph, the hackers were "one step away" from the computer control system of one of the huge detectors of the machine, a vast magnet that weighs 12,500 tons, measuring around 21 metres in length and 15 metres wide/high.
Fun as it might be to speculate on whether hackers could have generated The End of the World (movie rights opending, surely) it's very clear that the worst that could have been done would have been the derailing or contamination of the experiemental results. But considering that £4.4 billion was spent on the LHC, even that would have been somewhat more serious than hax0r tricks.
If the US wants to sentence Gary McKinnon to life, what would they do to these guys if they get hold of them? Luckily for them if they ever get caught, the jurisdiction would presumably fall to the Swiss or Greek courts!
"Shortly after physicists activated the Collider on Wednesday, hackers identifying themselves as Group 2600 of the Greek Security Team accessed computers connected to the Compact Muon Solenoid detector, one of four key subsystems responsible for monitoring the collisions of protons speeding around the 18-mile track near Geneva, Switzerland.
A few scientists had worried that the experiment could inadvertently create a planet-swallowing black hole. Physicists called this impossible, or at least extraordinarily unlikely. But the hack raises a different sort of worst-case scenario: the largest and most complicated science experiment in history, intended to reveal basic information about the composition of matter, derailed by malevolent intruders."
According to the Telegraph, the hackers were "one step away" from the computer control system of one of the huge detectors of the machine, a vast magnet that weighs 12,500 tons, measuring around 21 metres in length and 15 metres wide/high.
Fun as it might be to speculate on whether hackers could have generated The End of the World (movie rights opending, surely) it's very clear that the worst that could have been done would have been the derailing or contamination of the experiemental results. But considering that £4.4 billion was spent on the LHC, even that would have been somewhat more serious than hax0r tricks.
If the US wants to sentence Gary McKinnon to life, what would they do to these guys if they get hold of them? Luckily for them if they ever get caught, the jurisdiction would presumably fall to the Swiss or Greek courts!
ICO Speaks Total, Utter Sense
No irony meant, honest.
OUT-LAW again say: "Organisations must not use the Data Protection Act as a smokescreen for not giving out information, privacy regulator the Information Commissioner's Office (ICO) has warned.The ICO has identified the most common data protection myths which it says are used to avoid transparency or that have just developed through ignorance of the actual law.
Deputy Commissioner David Smith said that "The Data Protection Act does not impose a blanket ban on the release of personal information. What it does do is require a common sense approach," he said. "It should not be used as an excuse by those reluctant to take a balanced decision."
Too bloody true. Unfortunately the examples given by the ICO are mainly related to the public sector: universities refusing to send results to anyone but the students themselves, schools refusing to let people take photos of children in school plays. In Pangloss's experience these bodies are usually fairly reasonable; eg there are often good reasons not related to DP law to reveal results to no-one but students in person, to do with confidentiality, trust and over demanding relatives, and as a bright line it still seems the best policy. Most universities will however send results to a student's home address on request, which deals with the "student off abroad and parents desperate to know" problem.
Those who really choose to use the DPA as the Don't Tell Anyone Anything Act are notoriously not non profits like schools, but the commercial sector and in particular, communications, banking and utility companies who cynically use the slice of lime factor of " it's against DP law" to cynically get rid of annoying customers and minimise customer service. Pangloss, eg, has spent many an unhappy hour trying to pay money INTO various accounts to pay for TV, cable, Internet and other bills and been told this wasn't possible "because of the data protection act". What possible release of personal data to the payer need this involve?
Another problem is what happens when one member of a couple has set up an account eg for telephone, and they then split up acrimoniously. It is hardly sensible, and potentially even dangerous, to advise the other partner that they cannot later acces or alter the details of their account without getting the estranged partner to ring. Indeed in some seperations, communication may have entirely broken down and it may be vital to change details eg if the matrimonial home is rented to a new tenant. All utility and similar companies should have sensible procedures in place to deal with such situations (an, crucially, which are trickled down to call centre level).
Should using the DPA to repel honest enquiries or non-privacy-invasive transations be regarded as a kind of corporate fraud? So long as there is effectively no real hard infringement of DPA law, large companies will continue to use the DP as a stonewalling excuse, because the nature of bureacracy is to gather as much data and reveal as little of it to others as possible. the evaporation of personal service in favouir of anonymised call centres with pre written scripts also has a great deal to answer for.
OUT-LAW again say: "Organisations must not use the Data Protection Act as a smokescreen for not giving out information, privacy regulator the Information Commissioner's Office (ICO) has warned.The ICO has identified the most common data protection myths which it says are used to avoid transparency or that have just developed through ignorance of the actual law.
Deputy Commissioner David Smith said that "The Data Protection Act does not impose a blanket ban on the release of personal information. What it does do is require a common sense approach," he said. "It should not be used as an excuse by those reluctant to take a balanced decision."
Too bloody true. Unfortunately the examples given by the ICO are mainly related to the public sector: universities refusing to send results to anyone but the students themselves, schools refusing to let people take photos of children in school plays. In Pangloss's experience these bodies are usually fairly reasonable; eg there are often good reasons not related to DP law to reveal results to no-one but students in person, to do with confidentiality, trust and over demanding relatives, and as a bright line it still seems the best policy. Most universities will however send results to a student's home address on request, which deals with the "student off abroad and parents desperate to know" problem.
Those who really choose to use the DPA as the Don't Tell Anyone Anything Act are notoriously not non profits like schools, but the commercial sector and in particular, communications, banking and utility companies who cynically use the slice of lime factor of " it's against DP law" to cynically get rid of annoying customers and minimise customer service. Pangloss, eg, has spent many an unhappy hour trying to pay money INTO various accounts to pay for TV, cable, Internet and other bills and been told this wasn't possible "because of the data protection act". What possible release of personal data to the payer need this involve?
Another problem is what happens when one member of a couple has set up an account eg for telephone, and they then split up acrimoniously. It is hardly sensible, and potentially even dangerous, to advise the other partner that they cannot later acces or alter the details of their account without getting the estranged partner to ring. Indeed in some seperations, communication may have entirely broken down and it may be vital to change details eg if the matrimonial home is rented to a new tenant. All utility and similar companies should have sensible procedures in place to deal with such situations (an, crucially, which are trickled down to call centre level).
Should using the DPA to repel honest enquiries or non-privacy-invasive transations be regarded as a kind of corporate fraud? So long as there is effectively no real hard infringement of DPA law, large companies will continue to use the DP as a stonewalling excuse, because the nature of bureacracy is to gather as much data and reveal as little of it to others as possible. the evaporation of personal service in favouir of anonymised call centres with pre written scripts also has a great deal to answer for.
Suicide is Painful (If You're an ISP?)
The government has announced it is legislating to clamp down on suicide websites (a good vote getter while the electorate panics alternately about theur savings, their mortgage and when Brown wil resign? says Pangloss, who has her mortgage with IF aka HBOS and is having a stiff drink..)
"The law on "suicide websites" is to be rewritten to ensure people know they are illegal, the government has said.
Pretty clearly this is not new law at all, but mainly a sop to worried parents after the blanket publicity around the WElsh village of ABridgend as a suicide hot spot.
"Justice Minister Maria Eagle said "Updating the language of the Suicide Act, however, should help to reassure people that the internet is not a lawless environment and that we can meet the challenges of the digital world."
One wonders what relation this law will have to the familiar ECD Art 14 hosting immunities. Will ISPs be given a specific time limit for notice and take down, as in the E-Commerce Directive terrorism regulations? I'd gamble yes.
Will the IWF add suicide websites to their encrypted cleanfeed blocklist despite the acknowledged difficulties in spotting the difference between a site promoting suicide and one providing support to the suicidal? Yes again, I'd say.
Will the change in law be enforced against sites hosted abroad? Hmm - With great difficulty, and..
Will the legislature remember suicide law is different in Scotland and that there is not only no statute but no clear common law on the illegality of assisting or promoting suicide? I do hope so, otherwise we might see an upsurge in suicide websites hosted on Scottish servers!
We now return you to your regularly scheduled panic-stricken watching of Newsnight...
"The law on "suicide websites" is to be rewritten to ensure people know they are illegal, the government has said.
It follows concerns people searching for information on suicide are more likely to find sites encouraging the act than offering support.
It is illegal under the 1961 Suicide Act to promote suicide, but no website operator has been prosecuted.
The law will be amended to make clear it applies online and to help service providers police the sites they host."Pretty clearly this is not new law at all, but mainly a sop to worried parents after the blanket publicity around the WElsh village of ABridgend as a suicide hot spot.
"Justice Minister Maria Eagle said "Updating the language of the Suicide Act, however, should help to reassure people that the internet is not a lawless environment and that we can meet the challenges of the digital world."
One wonders what relation this law will have to the familiar ECD Art 14 hosting immunities. Will ISPs be given a specific time limit for notice and take down, as in the E-Commerce Directive terrorism regulations? I'd gamble yes.
Will the IWF add suicide websites to their encrypted cleanfeed blocklist despite the acknowledged difficulties in spotting the difference between a site promoting suicide and one providing support to the suicidal? Yes again, I'd say.
Will the change in law be enforced against sites hosted abroad? Hmm - With great difficulty, and..
Will the legislature remember suicide law is different in Scotland and that there is not only no statute but no clear common law on the illegality of assisting or promoting suicide? I do hope so, otherwise we might see an upsurge in suicide websites hosted on Scottish servers!
We now return you to your regularly scheduled panic-stricken watching of Newsnight...
More Scottish info privacy news
While we're making Scotocentric comments on HBOS meltdown day, another snippet, slightly late, from OUT-LAW on 12/9/08:
The Scottish Government has asked a panel of experts to produce rules for public bodies to follow so that personal information and privacy is better protected. The move follows a series of UK-wide data breaches involving public authorities.
The panel will produce guidance for public bodies to ensure that they are treating personal information properly. That guidance will be subject to public consultation before any adoption by the Scottish Government.
The group of experts includes representatives from the public and private sectors and includes Rosemary Jay, a privacy law expert at Pinsent Masons, the law firm behind OUT-LAW.COM.
The group also includes Gus Hosein of Privacy International, Scottish Government director of corporate services Paul Gray, assistant information commissioner for Scotland Ken Macdonald, Edinburgh University honorary fellow Charles Raab and Jerry Fishenden, Microsoft's lead technology advisor for the UK.""
Pangloss notes with approval this list of luminaries but feels slightly sad they didn't ask her, just when she's (sort of) moved back to Edinburgh. Ah, hubris!
Sunday, September 14, 2008
Tweets! (and RSSs)
Ok, should you wish to subscribe to notifications of updates to this blog via Twitter you now can: just log into Twitter and subscribe to Panglossle at https://twitter.com/panglossle .
Pangloss herself is not quite sure of the point of this (but somone suggested it as a good idea): you'd have to go to the web to read the full thing anyway so why not just subscribe to Pangloss's RSS feed and see updates via whatever you read RRS feeds in (PG herself uses LiveJournal as her RSS reader but knows that isn't very professional - it works though)? Perhaps someone can enlighten me.
However this does remind me that I should publicise the RSS feed, which I will do once I get round to revamping the template which requires wholesale change since the Blogger upgrade (oh god, life is just so complicated..)
Atom link:
http://blogscript.blogspot.com/feeds/posts/default
RSS link:
http://blogscript.blogspot.com/feeds/posts/default?alt=rss
On that note, I'm worn out!
Pangloss herself is not quite sure of the point of this (but somone suggested it as a good idea): you'd have to go to the web to read the full thing anyway so why not just subscribe to Pangloss's RSS feed and see updates via whatever you read RRS feeds in (PG herself uses LiveJournal as her RSS reader but knows that isn't very professional - it works though)? Perhaps someone can enlighten me.
However this does remind me that I should publicise the RSS feed, which I will do once I get round to revamping the template which requires wholesale change since the Blogger upgrade (oh god, life is just so complicated..)
Atom link:
http://blogscript.blogspot.com/feeds/posts/default
RSS link:
http://blogscript.blogspot.com/feeds/posts/default?alt=rss
On that note, I'm worn out!
Wednesday, September 03, 2008
Law Blawging UK OK
Slightly belatedly, via Binary Law:
TimesOnline does the round up of the usual suspects (no Pangloss, helas!) on the UK blawging circuit. As Nick Holmes comments, the scene is really rather rosier than both the article and the comments seem to indicate.. in fact if you look at Charon QC's enormously usual single page of UK blawgers, there are many many blawgs I've never heard of or sadly never get the time to look at..
Actualy IMHO I am quite staggegered how many laws practitioners (as opposd to we feeble academics) find time to maintain decent readable blawgs. Where do they put it in time billing one wonders?
TimesOnline does the round up of the usual suspects (no Pangloss, helas!) on the UK blawging circuit. As Nick Holmes comments, the scene is really rather rosier than both the article and the comments seem to indicate.. in fact if you look at Charon QC's enormously usual single page of UK blawgers, there are many many blawgs I've never heard of or sadly never get the time to look at..
Actualy IMHO I am quite staggegered how many laws practitioners (as opposd to we feeble academics) find time to maintain decent readable blawgs. Where do they put it in time billing one wonders?
Burning Chrome
I've now seen in a few places (and been asked to comment) on this extract from Google's new browser Chrome's EULA: (see eg http://www.theregister.co.uk/2008/09/03/google_chrome_eula_sucks/)
The part people are worried about is
11.1 You retain copyright and any other rights that you already hold in Content that you submit, post or display on or through the Services. By submitting, posting or displaying the content, you give Google a perpetual, irrevocable, worldwide, royalty-free and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content that you submit, post or display on or through the Services. This licence is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.
My opinion FWIW (without prejudice etc) is that this is harmless. The part in bold is the important bit. Yes Google are getting a (non exclusive) license to your content but ONLY to show off and advertise theur toy. This is a very common clause: in fact I'm told Google have it as a standard clause in all their contracts and I'm sure they do and it's bothered nobody.
I remember Hugh Hancock from machinama land asking me about a very similar clause in (I think) a MS machinima license. Basically if someone provides a free cool web service, they want to use your cool content to show off in demos to clients, on the web etc etc. And they don't want to have to come ask you for copyright permision. In return for a free service, this doesn't seem unreasonable to me.
There is also a very outside chance that Google are protecting *themselves* against a claim of copyright violation for their browser being used to make a copy of someone site who then claims he didn't give permission for that. In other words, normal uses of a web browser.
What it does *not* mean is that Google are grabbing the right to steal your entire video blogsite accessed via their browser, package it into a Richard and Judy bestseller book, turn that into a best selling film and retire on your profits :)
Rest easy kids.
EDIT: Google are apparently going to retrospectively clarify the issue.
EDIT 2: and apparently already have : " As of 2 p.m. PT, it looks like the terms have changed. Section 11 now reads simply: "11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services."
The part people are worried about is
11.1 You retain copyright and any other rights that you already hold in Content that you submit, post or display on or through the Services. By submitting, posting or displaying the content, you give Google a perpetual, irrevocable, worldwide, royalty-free and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content that you submit, post or display on or through the Services. This licence is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.
My opinion FWIW (without prejudice etc) is that this is harmless. The part in bold is the important bit. Yes Google are getting a (non exclusive) license to your content but ONLY to show off and advertise theur toy. This is a very common clause: in fact I'm told Google have it as a standard clause in all their contracts and I'm sure they do and it's bothered nobody.
I remember Hugh Hancock from machinama land asking me about a very similar clause in (I think) a MS machinima license. Basically if someone provides a free cool web service, they want to use your cool content to show off in demos to clients, on the web etc etc. And they don't want to have to come ask you for copyright permision. In return for a free service, this doesn't seem unreasonable to me.
There is also a very outside chance that Google are protecting *themselves* against a claim of copyright violation for their browser being used to make a copy of someone site who then claims he didn't give permission for that. In other words, normal uses of a web browser.
What it does *not* mean is that Google are grabbing the right to steal your entire video blogsite accessed via their browser, package it into a Richard and Judy bestseller book, turn that into a best selling film and retire on your profits :)
Rest easy kids.
EDIT: Google are apparently going to retrospectively clarify the issue.
EDIT 2: and apparently already have : " As of 2 p.m. PT, it looks like the terms have changed. Section 11 now reads simply: "11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services."
Tuesday, August 19, 2008
And meanwhile...
.. while Pangloss continues its summer hiatus and if you want some light reading, you might be interested to know that many of my recent and even not so recent articles are now available in pre-print form on SSRN .
Many thanks to Nadine Ericksson-Smith for doing the admin involved in getting these there!
Happy soggy summer to all, ho ho ho..
Also to whet your appetite for the autumn, upcoming places to see Pangloss.. (gosh , it's just like the Edinburgh Fringe comedy tours!)
Scottish SCL Meeting, September 3rd - Edinburgh, Faculty of Advocates, Mackenzie Building (behind Fringe Office) High Street, Edinburgh - Facebook and the Law: CyberStalking Paradise 2.0?
SCL 3rd Annual Policy Forum 2008 : Legislating for Web 2.0 – Preparing for the Communications Act? 22 & 23 September 2008 , London
GikIII 24th-25 September, Oxford: Data Protection 2.0: This Time It's Personal (Data?)
Practical Law Seminar, 30 September, London : Social Networking, privacy and Other Legal Issues
QMIPRI-SIIA Conference: Digital Publics - 2 October, London
Tel Aviv University, Israel, invited lecture - December 4th
Many thanks to Nadine Ericksson-Smith for doing the admin involved in getting these there!
Happy soggy summer to all, ho ho ho..
Also to whet your appetite for the autumn, upcoming places to see Pangloss.. (gosh , it's just like the Edinburgh Fringe comedy tours!)
Scottish SCL Meeting, September 3rd - Edinburgh, Faculty of Advocates, Mackenzie Building (behind Fringe Office) High Street, Edinburgh - Facebook and the Law: CyberStalking Paradise 2.0?
SCL 3rd Annual Policy Forum 2008 : Legislating for Web 2.0 – Preparing for the Communications Act? 22 & 23 September 2008 , London
GikIII 24th-25 September, Oxford: Data Protection 2.0: This Time It's Personal (Data?)
Practical Law Seminar, 30 September, London : Social Networking, privacy and Other Legal Issues
QMIPRI-SIIA Conference: Digital Publics - 2 October, London
Tel Aviv University, Israel, invited lecture - December 4th
Monday, August 11, 2008
Important Contact News and SCRIPT-Ed conference
Pangloss has temporarily moved back to lovely Auld Reekie pending resettlement at her new job as Professor of Internet Law at Sheffield University. I am currently looking for nice rented accommodation with garden for homeless cyberprof and two well (honest :-) behaved kitties should you know any useful slum landlords in the area (or, indeed, be one) ..
IMPORTANT: From September 1 2008 l.edwards@soton.ac.uk will CEASE TO OPERATE. (Rather unlike,it has to be said, lovely ed.ac.uk which two years on is still faithfully forwarding the odd email..)
My new email is lilian.edwards@sheffield.ac.uk . You can start using this as of now but it will become vital after September 1. Please note the odd spelling of my first name :)
I am also stepping down as Director of ILAWS. I remain Associate Director of SCRIPT/the AHRC Centre for Intellectual property and Technology at Edinburgh.
Talking of which , one of my happiest jobs in that capacity is to still act as a Managing Editor of SCRIPT-ed, the online journal of the AHRC Centre, whose remit is very broadly the interaction between law and technology. The most recent issue (Vol 5 No 1) includes papers on topics as varied as trade mark dilution, user attitudes to P2P services and the ethical issues surrounding 'bionic' athletes. We are always interested in prospective contributions for SCRIPTed, and we are also keen to hear from suitably-qualified referees to help peer-review submissions. One of the key strengths of SCRIPT-ed I think is that in a field as dynamic as IT and IP law we can usually guarantee swift publication, while retaining the rigour of peer-review.
IMPORTANT: From September 1 2008 l.edwards@soton.ac.uk will CEASE TO OPERATE. (Rather unlike,it has to be said, lovely ed.ac.uk which two years on is still faithfully forwarding the odd email..)
My new email is lilian.edwards@sheffield.ac.uk . You can start using this as of now but it will become vital after September 1. Please note the odd spelling of my first name :)
I am also stepping down as Director of ILAWS. I remain Associate Director of SCRIPT/the AHRC Centre for Intellectual property and Technology at Edinburgh.
Talking of which , one of my happiest jobs in that capacity is to still act as a Managing Editor of SCRIPT-ed, the online journal of the AHRC Centre, whose remit is very broadly the interaction between law and technology. The most recent issue (Vol 5 No 1) includes papers on topics as varied as trade mark dilution, user attitudes to P2P services and the ethical issues surrounding 'bionic' athletes. We are always interested in prospective contributions for SCRIPTed, and we are also keen to hear from suitably-qualified referees to help peer-review submissions. One of the key strengths of SCRIPT-ed I think is that in a field as dynamic as IT and IP law we can usually guarantee swift publication, while retaining the rigour of peer-review.
Not content with running a journal, the managing committee are now organising the SCRIPTed Conference, to take place at the University of Edinburgh from 29-31 March 2009. Taking as its theme 'the Governance of New Technologies', it will focus on evolving and emerging technologies and new-technology-driven practices and their impact on the overlapping fields of healthcare, information technology and intellectual property. The Call for Papers is open until 15 November, whilst an outline programme is available. Dan Hunter is one of the special guests whom Panglos herself wil be very eager to meet again - Dan is one of the foremost experts in both the US and Australia on virtual worlds and the law.
So, why not make a date in your diaries for what promises to be a fascinating and enjoyable three days in the beautiful city of Edinburgh?
So, why not make a date in your diaries for what promises to be a fascinating and enjoyable three days in the beautiful city of Edinburgh?
Saturday, August 09, 2008
Ongoing Trends in Open Source Statistics
I was going to send this to my esteemed colleague Technollama and then I thought, no, everyone deserves to see this!!
I don't know whether this says more about the development of open source, the obesity epidemic, or both!!
(Via Andrew Ducker.)
Tuesday, August 05, 2008
And Another Depressing Copyright Post..
Bill Thompson has an excellent summing up ofthe state of play as UK ISPs like Virgin move towards helping the music industry "re-educate" its users and resist the move to 21st century business models.
"We need a space for experimentation, where we can test the limits of old laws and explore how they might be altered in future, but once ISPs decide that they are no longer neutral carriers of bits and choose to ally themselves with the content industry then we lose another sliver of freedom.
"We need a space for experimentation, where we can test the limits of old laws and explore how they might be altered in future, but once ISPs decide that they are no longer neutral carriers of bits and choose to ally themselves with the content industry then we lose another sliver of freedom.
At the moment it's hard to use BitTorrent anonymously, although since the service itself is entirely legal and legitimate there should be no need to do so.
The moves by Virgin and other ISPs will simply spur the development of new ways of sharing files, just as the clampdown on Napster lead directly to the development of the current generation of peer to peer networks.
Virgin has just given its thousands of users an incentive to explore these new tools in order to confuse their administrators."The Stae of Modern Copyright..
Via many people, a quote from William Patry on why he's closing his blog:
"Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty Dumpty,the copyright law we used to know can never be put back together again:multilateral and trade agreements have ensured that, and quite deliberately."
"Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty Dumpty,the copyright law we used to know can never be put back together again:multilateral and trade agreements have ensured that, and quite deliberately."
Saturday, July 26, 2008
Something topical!
Batman or Bush?
Random American citizens try to tell who said it: Batman or Bush
Hey I'm sure it says at least enough about images of regulation to be a Law and Society paper
Random American citizens try to tell who said it: Batman or Bush
Hey I'm sure it says at least enough about images of regulation to be a Law and Society paper
Friday, July 25, 2008
Just another silly season Friday..
In the immortal words of John MacEnroe..
It'd be good if it had the IT Crowd in it too :) (So hey, Judith, are they infringing personality rights too? is there an exception in the German law of personality for parody or comment)
Sez OUT_LAW:
"The Court looked into the degree to which the pursuit of artistic freedom interfered with the personality rights of Meiwes. It found that artistic freedom was not so powerful a right that it allowed for someone's life to be made into a horror film.
Meiwes advertised online for someone to be killed and eaten by him. Bernd Jürgen Brandes responded to his advert and tried to join Meiwes in eating his own severed penis before being killed and eaten."
But his life *IS * A HORROR FILM!!!
Wow it's a great time to be a privacy lawyer. Nazi orgies (allegedly). German cannibals. Any guesses on what next?
EDIT: Ok, this next. But hey, haven't all the cool kids given up playing Scrabulous anyway?
Well that took a full ten minutes..
Also this, about which I can say little other than that it's about time they started selling close-target limited tactical nuclear strikes on eBay.
I think I'll go back to bed! :)
Thursday, July 24, 2008
Meanhile after Mosley.. a privacy and libel round up
For a change, something privacy related.
So what do we think of the Mosley case? In many ways this is absolutely nothing new let alone "landmark". We have had a long string of cases which support the idea that press intrusion into the firmly private lives of celebrities will be regarded as a serious breach of privacy. This wasn't even a difficult case: the events took place in private behind closed and locked doors, not in the more contested world of the outdoors (cf Rowling (Murray v Big Picture)); the case wasn't contaminated as in Douglas by the existence of a threatened connected revenue stream. It wasn't a contested kiss and tell dispute as in Ash where opposing rights of freedom of expression and privacy of non-press parties clashed. This really was a pure privacy and reputation case, about as intimately private a matter as you can get, an exotic sex life, where the incentive of the newspaper was to sell lots of newspapers. It doesn't seem surprising therefore that the damages award was so high, or that the judge was so critical of the paper involved.
Nor is there really anything very new on the tabloid side. It's clear if there really had been a "public right to know" here, the case would have gone the other way. But the Nazi allegations were never proven and the NotW botched its defence. Frankly , Pangloss remains bemused how even if Mr Mosley did spend every Tuesday goosestepping in jackboots and lederhosen singing Tomorrow Belongs To Me, this would have much to do with his "public" role, the handling of Formula 1 racing. But perhaps this is one of these sporty things we females are not privy to. (I don't understand why footballers are expected to have faithful marriages either, or why the public should care either way.)
Still, as my colleague Judith Rauhofer wrote to me triumphantly to say, this case certainly affirms the aphorism from earlier cases, that even if the public is "interested", it won't necessarily be "in the public interest" for the details to be disclosed.
The much bigger issue is how far will the flowering emergence of UK post HRA privacy jurisprudence go. Almost everyone except the tabloids thinks the UK's tabloid press needs restrained, by privacy case law in the absence of legislation.
But what if it is not the press but me or you who had blown the gaffe on Mosley? We live in the web 2.0 world after all. What if I had spilled it in my blog.? What if someone had set up a fake Mosley Facebook profile in which his interests were claimed to be the Luftwaffe, iron crosses and Eva Braun, his sexuality was described as Random Play with Whips, and his politics as Neo-Fascist?
This isn't altogether a hypothetical. Oddly enough today someone also got successfully sued for 15K damages for libel, and £2K for privacy, for setting up a fake profile on Facebook in an attempt to embarrass and belittle his former mate from school. (he sounds quite a horrible person, but that's not the point really.)
The fake FB profile actually involved lies about the alleged subject, or it wouldn't have lead to a libel award. But the next case , after Mosley and the rest, could easily only involve private and damaging, but not false, details.
One clear example that clarifies where this might lead is one Judith and I debated at the Law and Society conference in Montreal - is there now a human right not to be "outed"? Tonight I've watched a documentary in which John Barrowman explained in copious detail how glad he is to be gay. But not everyone feels that way. Indubitably, outing can cause damage - everything from loss of job to loss of friends and emotional distress to suicide in some cases. Shouldn't it be actionable?
But - Do I , an individual have the ethical duty not to harm my fellow man, if I do not lie? Maybe I do , but that is still a long way from a legal duty. The judge in the Mosley case stated:
"The law now affords protection to information in respect of which there
But don't I too , as part of my rights of autonomy and personality and self esteem, have a right to describe the world how I see it, as long as I don't lie, defame or negligently misstate? These are`my duties of care, the traditional limits of freedom of speech. I am not required in general to protect and sustain the image my friends and enemies want to project - to be part of their personal PR agency. Nor should I be.
Of course if I out my friends, they are unlikely to stay my friends and I might well be ostracised in my social group. Shouldn't these social norms and sanctions suffice? Yet it is hard to see exactly where to draw the line between the next Facebook case, the one about privacy not defamation, and the outing example. There is also surely a societal interest in truth, and critique, as well as in privacy.
Do we really want the whole world to be a giant self fulfillment and image protection arcade? or do we want the right to say, "but look - the Emperor has no clothes." Or perhaps even, in today's case, no jackboots.
So what do we think of the Mosley case? In many ways this is absolutely nothing new let alone "landmark". We have had a long string of cases which support the idea that press intrusion into the firmly private lives of celebrities will be regarded as a serious breach of privacy. This wasn't even a difficult case: the events took place in private behind closed and locked doors, not in the more contested world of the outdoors (cf Rowling (Murray v Big Picture)); the case wasn't contaminated as in Douglas by the existence of a threatened connected revenue stream. It wasn't a contested kiss and tell dispute as in Ash where opposing rights of freedom of expression and privacy of non-press parties clashed. This really was a pure privacy and reputation case, about as intimately private a matter as you can get, an exotic sex life, where the incentive of the newspaper was to sell lots of newspapers. It doesn't seem surprising therefore that the damages award was so high, or that the judge was so critical of the paper involved.
Nor is there really anything very new on the tabloid side. It's clear if there really had been a "public right to know" here, the case would have gone the other way. But the Nazi allegations were never proven and the NotW botched its defence. Frankly , Pangloss remains bemused how even if Mr Mosley did spend every Tuesday goosestepping in jackboots and lederhosen singing Tomorrow Belongs To Me, this would have much to do with his "public" role, the handling of Formula 1 racing. But perhaps this is one of these sporty things we females are not privy to. (I don't understand why footballers are expected to have faithful marriages either, or why the public should care either way.)
Still, as my colleague Judith Rauhofer wrote to me triumphantly to say, this case certainly affirms the aphorism from earlier cases, that even if the public is "interested", it won't necessarily be "in the public interest" for the details to be disclosed.
The much bigger issue is how far will the flowering emergence of UK post HRA privacy jurisprudence go. Almost everyone except the tabloids thinks the UK's tabloid press needs restrained, by privacy case law in the absence of legislation.
But what if it is not the press but me or you who had blown the gaffe on Mosley? We live in the web 2.0 world after all. What if I had spilled it in my blog.? What if someone had set up a fake Mosley Facebook profile in which his interests were claimed to be the Luftwaffe, iron crosses and Eva Braun, his sexuality was described as Random Play with Whips, and his politics as Neo-Fascist?
This isn't altogether a hypothetical. Oddly enough today someone also got successfully sued for 15K damages for libel, and £2K for privacy, for setting up a fake profile on Facebook in an attempt to embarrass and belittle his former mate from school. (he sounds quite a horrible person, but that's not the point really.)
The fake FB profile actually involved lies about the alleged subject, or it wouldn't have lead to a libel award. But the next case , after Mosley and the rest, could easily only involve private and damaging, but not false, details.
One clear example that clarifies where this might lead is one Judith and I debated at the Law and Society conference in Montreal - is there now a human right not to be "outed"? Tonight I've watched a documentary in which John Barrowman explained in copious detail how glad he is to be gay. But not everyone feels that way. Indubitably, outing can cause damage - everything from loss of job to loss of friends and emotional distress to suicide in some cases. Shouldn't it be actionable?
But - Do I , an individual have the ethical duty not to harm my fellow man, if I do not lie? Maybe I do , but that is still a long way from a legal duty. The judge in the Mosley case stated:
"The law now affords protection to information in respect of which there
is a reasonable expectation of privacy, even in circumstances
where there is no pre-existing relationship giving rise of itself to an
enforceable duty of confidence. That is because the law is concerned to
prevent the violation of a citizen's autonomy, dignity and self-esteem."
But don't I too , as part of my rights of autonomy and personality and self esteem, have a right to describe the world how I see it, as long as I don't lie, defame or negligently misstate? These are`my duties of care, the traditional limits of freedom of speech. I am not required in general to protect and sustain the image my friends and enemies want to project - to be part of their personal PR agency. Nor should I be.
Of course if I out my friends, they are unlikely to stay my friends and I might well be ostracised in my social group. Shouldn't these social norms and sanctions suffice? Yet it is hard to see exactly where to draw the line between the next Facebook case, the one about privacy not defamation, and the outing example. There is also surely a societal interest in truth, and critique, as well as in privacy.
Do we really want the whole world to be a giant self fulfillment and image protection arcade? or do we want the right to say, "but look - the Emperor has no clothes." Or perhaps even, in today's case, no jackboots.
3 Strikes and You're Um Crawling to a Halt??
Pangloss hates to seem so one track minded on this, but well, things just keep happening. In this case, potentially pretty bad things.
After months of rumours, behind the scene talks, stealth tactics at the European Parliament (maybe), and denials that the UK and indeed, Carphone Warehouse would ever ever have anything to do with nasty French stuff like 3 strikes and you're out, today we have two somewhat interesting developments: a voluntary, and so far, rather worryingly vague, Memorandum of Understanding between the music industry, BERR and the 6 leading UK ISPs which between them account for 90% of UK traffic : BT, Tiscali, Virgin ("absolutely no possibility of disconnection"), Orange, BSkyB and oh suprise, Carphone Warehouse :)
Plus a consultation on what primary legislation should be brought in by BERR as a "backstop": the idea being presumably that if the other 10% of ISPs don't fall into line with the MoU - or if some of the above 6 pull out depending on how bad the PR fall out is and what the MoU actually compells them to do - they can then all be compelled still to "do something" about file sharing.
So what does the MoU say? Well basically for 3 months, the industry aided by the 6 ISPs involved are going to send out letters to suspected filesharers. Lots and lots of letters. 80,000 or so over 12 weeks. But hang on. If 67% of the UK have admitted to filesharing - even only once - that's 35 million letters that need sending out. Quite a bit of scaling up there to be done after the pilot. Eco-wise let's hope they're all emails:)
But letters is only stage 1 (after all the BPI could have sent them themselves, tho this way they do aparently get ISPs to pay for half of them.) Stage 2 is what do you do next, when presumably they compare them all on a big spreadsheet, and find that eg Mr A of Aberystwyth got 220 letters from 5 ISPs? What gets done to persuade Mr A to abandon his bad ways if the shock of 220 letters isn't enough?
Here the MoU gets vaguer. There will be discussion of "technical measures", for "repeat" or "the worst" offenders. This seems to involves three possible sanctions:
Pangloss doesn't want to restate the (very tired and flat) wheel but this raises all the same problems I've gone though before plus more.
What will happen if the repeat offender is a child and the whole household loses access or has it slowed to unacceptable levels? "Traffic slowing" to an accountholder sounds better than disconnection, but I cannot see, having asked some tech experts, how it is substantially less damaging.
This is about music remember, not, so far, films. Supposed Little Johnny downloads several hundred tracks, and as a result the account to their home is restricted to a crawl. (It's likely to happen automatically after the account's bandwidth limit is reached.) If you can't manage to get a fast enough connection to download an MP3, or even 12 constituting an album, can Johnny still manage to download his course reading materials from the uni or school website?? can Mum run her small business? can Dad tele commute? can Sis run her small business on eBay? can ma and pa even manage to download programmes from iViewer, their legal right as a BBC license payer! It seems unlikely.
What if the infringer is really someone using your wi fi , or visiting your house, or a crook who's zombified your machine unbeknownst to you?
What if the music people have just got the IP address or look up to real life ID wrong? (well we should at least get to see the correct target hit rate - or the failure`rate - over the next three months.
What if you're making fair use of coyright materials eg review, journalism, education?
All these crucial points of evidence and standard of proof and exceptions remain right now (a) vague and (b) aparently to be determined and adjudicated by industry and ISPs - not courts, judges or even policemen.
The good news here is that the regulator Ofcom is to be involved in drafting codes with industry relating to "evidence .. repeat offenders..incorrect allegations... routes of appeal" (p 48).
Good. Very good even. But it will still be the music industry as prosecutor and judge and the ISP as cop and enforcer, with the onus on the consumer to challenge after the sanction has already been ordered: Pangloss still feels deeply unhappy about all this.
There is a better alternative though, and it's option A3 in the BERR consulation. (p 35).
"Rights holders would identify infringing IP addresses and pass evidence and
details to a 3rd party body, which would take responsibility for assessing the evidence that file-sharing of copyright material had taken place. If the evidence was judged sufficiently robust, the body would then direct the ISP to take appropriate action or do so itself. Such a body would also be able to hear appeals and complaints from
consumers and may also be responsible for developing and administering or overseeing
any required code of practice for ISPs and rights holders."
This is a win win solution. It could meet ECHR and UK standards of fairness, due process and transparency, while still cutting down on actual piracy (as is right and proper, we should not forget this).
It might also be seen as slow and expensive and the industry will not like it. But it doesn't have to be.
We already have a model , in the IP world, of a speedy cheap and effective, yet legally rigorous tribunal for on line wrong doing. It's the ICANN UDR dispute resolution procedure for dealing with cybersquatters - people who register domain names in apparent disregard of the rights of trademark holders. It works, it's seen 1000s of cases over a number of years and broadly industry - and the IP industry - has found it effective and satisfactory. In previous work for the EU, myself and my colleague Caroline Wilson held up the UDRP as a possible model for resolution of online consumer-related disputes. It can involve lawyers or technologists or even musicians so long as they are trained as arbiters who actually understand the relevant law, technology and business. It need not have the kind of time and cost constraints of the courts. Cases could mainly be conducted online, with electronic written pleadings, again already a tried and tested standard approach in the UDRP.
It could make the UK look like a world leader in dealing with the consumer piracy problem, as opposed to the freakshow of Europe.
What other alternatives does BERR suggest?
A1 suggests that ISPs be required to automatically reveal the personal identity of an alleged filesharer identified by IP address to music industry, on demand, with no need to go to court.
Currently ISPs refuse to do this because it would be breach of data protection law and also a breach of confidentiality to custoner without court order. It would, one imagines, be disastrous for ISP customer relations, but as US already has it in DMCA, it is likely to appeal to BERR as already working.
The problem is really how far this can be used to invade personal provacy and make groundless threats (as in so-called cyber-slapp libel litigation.) People are however extremely touchy about personal data revelation without consent right now, post HMRC. so Panlgoss suspects this one is likely to go down like a lead balloon.
A4, finally, (no there is no A2 - well not really) suggests that if we are all very very bad boys indeed, then ISps will be asked _ sorry ordered - to install filtering. THis would probably mean that the rightsholder would say "here is the list of tracks we hold cooyright in" and if Mr A in Aberystwth was detected downloading or uploading one of them, it would be filtered out (and he would no doubt get a letter too).
Secueity and technical experts say this is so unlikely to work correctly across all traffic, all users and all ISps, that it's like believing in fairies. How do you tell a Lily Allen track that's been illegally copied from a P2P site from one that's been legally downloaded as part of a BBC TV show from iViewer or one that's freely available on MySpaced as apromo? It's the same track.
It is also a blank ticket for unrestricted censorship with no public accountability or transparency. It's the kind of tactic which has been declared an unconstututional interference with the free expression rights of adults repeatedly in the US courts. Filtering might - just - be aceptable to stamp out child porn downloading - but not in the context of music where many people have quite legitimate rights to listen to much oif the material.
This is more than a hammer to crack a nut - it's an imaginary hammer cracking all the fruit in the world as well as the nut. (Yeh maybe the metaphors are getting out of hand.)
Think about it. If you like A3, do write to BERR (or do anyway) - the consultation closes on October 30.
Write to Michael Klym / Adrian Brazier
Communications & Content Industries
Department for Business, Enterprise & Regulatory Reform
UG28-30
1 Victoria Street
London SW1H 0ET
Tel: 020 7215 4165 / 1295 Fax: 020 7215 5442
Email: mike.klym@berr.gsi.gov.uk / adrian.brazier@berr.gsi.gov.uk
After months of rumours, behind the scene talks, stealth tactics at the European Parliament (maybe), and denials that the UK and indeed, Carphone Warehouse would ever ever have anything to do with nasty French stuff like 3 strikes and you're out, today we have two somewhat interesting developments: a voluntary, and so far, rather worryingly vague, Memorandum of Understanding between the music industry, BERR and the 6 leading UK ISPs which between them account for 90% of UK traffic : BT, Tiscali, Virgin ("absolutely no possibility of disconnection"), Orange, BSkyB and oh suprise, Carphone Warehouse :)
Plus a consultation on what primary legislation should be brought in by BERR as a "backstop": the idea being presumably that if the other 10% of ISPs don't fall into line with the MoU - or if some of the above 6 pull out depending on how bad the PR fall out is and what the MoU actually compells them to do - they can then all be compelled still to "do something" about file sharing.
So what does the MoU say? Well basically for 3 months, the industry aided by the 6 ISPs involved are going to send out letters to suspected filesharers. Lots and lots of letters. 80,000 or so over 12 weeks. But hang on. If 67% of the UK have admitted to filesharing - even only once - that's 35 million letters that need sending out. Quite a bit of scaling up there to be done after the pilot. Eco-wise let's hope they're all emails:)
But letters is only stage 1 (after all the BPI could have sent them themselves, tho this way they do aparently get ISPs to pay for half of them.) Stage 2 is what do you do next, when presumably they compare them all on a big spreadsheet, and find that eg Mr A of Aberystwyth got 220 letters from 5 ISPs? What gets done to persuade Mr A to abandon his bad ways if the shock of 220 letters isn't enough?
Here the MoU gets vaguer. There will be discussion of "technical measures", for "repeat" or "the worst" offenders. This seems to involves three possible sanctions:
- traffic management (slowing the offender's email til it's too slow to downlaod an MP3);
- filtering out tagged-as-copyright traffic to that offender's IP address;
- and possibly, maybe, not quite stated-as-such, disconnection??
Pangloss doesn't want to restate the (very tired and flat) wheel but this raises all the same problems I've gone though before plus more.
What will happen if the repeat offender is a child and the whole household loses access or has it slowed to unacceptable levels? "Traffic slowing" to an accountholder sounds better than disconnection, but I cannot see, having asked some tech experts, how it is substantially less damaging.
This is about music remember, not, so far, films. Supposed Little Johnny downloads several hundred tracks, and as a result the account to their home is restricted to a crawl. (It's likely to happen automatically after the account's bandwidth limit is reached.) If you can't manage to get a fast enough connection to download an MP3, or even 12 constituting an album, can Johnny still manage to download his course reading materials from the uni or school website?? can Mum run her small business? can Dad tele commute? can Sis run her small business on eBay? can ma and pa even manage to download programmes from iViewer, their legal right as a BBC license payer! It seems unlikely.
What if the infringer is really someone using your wi fi , or visiting your house, or a crook who's zombified your machine unbeknownst to you?
What if the music people have just got the IP address or look up to real life ID wrong? (well we should at least get to see the correct target hit rate - or the failure`rate - over the next three months.
What if you're making fair use of coyright materials eg review, journalism, education?
All these crucial points of evidence and standard of proof and exceptions remain right now (a) vague and (b) aparently to be determined and adjudicated by industry and ISPs - not courts, judges or even policemen.
The good news here is that the regulator Ofcom is to be involved in drafting codes with industry relating to "evidence .. repeat offenders..incorrect allegations... routes of appeal" (p 48).
Good. Very good even. But it will still be the music industry as prosecutor and judge and the ISP as cop and enforcer, with the onus on the consumer to challenge after the sanction has already been ordered: Pangloss still feels deeply unhappy about all this.
There is a better alternative though, and it's option A3 in the BERR consulation. (p 35).
"Rights holders would identify infringing IP addresses and pass evidence and
details to a 3rd party body, which would take responsibility for assessing the evidence that file-sharing of copyright material had taken place. If the evidence was judged sufficiently robust, the body would then direct the ISP to take appropriate action or do so itself. Such a body would also be able to hear appeals and complaints from
consumers and may also be responsible for developing and administering or overseeing
any required code of practice for ISPs and rights holders."
This is a win win solution. It could meet ECHR and UK standards of fairness, due process and transparency, while still cutting down on actual piracy (as is right and proper, we should not forget this).
It might also be seen as slow and expensive and the industry will not like it. But it doesn't have to be.
We already have a model , in the IP world, of a speedy cheap and effective, yet legally rigorous tribunal for on line wrong doing. It's the ICANN UDR dispute resolution procedure for dealing with cybersquatters - people who register domain names in apparent disregard of the rights of trademark holders. It works, it's seen 1000s of cases over a number of years and broadly industry - and the IP industry - has found it effective and satisfactory. In previous work for the EU, myself and my colleague Caroline Wilson held up the UDRP as a possible model for resolution of online consumer-related disputes. It can involve lawyers or technologists or even musicians so long as they are trained as arbiters who actually understand the relevant law, technology and business. It need not have the kind of time and cost constraints of the courts. Cases could mainly be conducted online, with electronic written pleadings, again already a tried and tested standard approach in the UDRP.
It could make the UK look like a world leader in dealing with the consumer piracy problem, as opposed to the freakshow of Europe.
What other alternatives does BERR suggest?
A1 suggests that ISPs be required to automatically reveal the personal identity of an alleged filesharer identified by IP address to music industry, on demand, with no need to go to court.
Currently ISPs refuse to do this because it would be breach of data protection law and also a breach of confidentiality to custoner without court order. It would, one imagines, be disastrous for ISP customer relations, but as US already has it in DMCA, it is likely to appeal to BERR as already working.
The problem is really how far this can be used to invade personal provacy and make groundless threats (as in so-called cyber-slapp libel litigation.) People are however extremely touchy about personal data revelation without consent right now, post HMRC. so Panlgoss suspects this one is likely to go down like a lead balloon.
A4, finally, (no there is no A2 - well not really) suggests that if we are all very very bad boys indeed, then ISps will be asked _ sorry ordered - to install filtering. THis would probably mean that the rightsholder would say "here is the list of tracks we hold cooyright in" and if Mr A in Aberystwth was detected downloading or uploading one of them, it would be filtered out (and he would no doubt get a letter too).
Secueity and technical experts say this is so unlikely to work correctly across all traffic, all users and all ISps, that it's like believing in fairies. How do you tell a Lily Allen track that's been illegally copied from a P2P site from one that's been legally downloaded as part of a BBC TV show from iViewer or one that's freely available on MySpaced as apromo? It's the same track.
It is also a blank ticket for unrestricted censorship with no public accountability or transparency. It's the kind of tactic which has been declared an unconstututional interference with the free expression rights of adults repeatedly in the US courts. Filtering might - just - be aceptable to stamp out child porn downloading - but not in the context of music where many people have quite legitimate rights to listen to much oif the material.
This is more than a hammer to crack a nut - it's an imaginary hammer cracking all the fruit in the world as well as the nut. (Yeh maybe the metaphors are getting out of hand.)
Think about it. If you like A3, do write to BERR (or do anyway) - the consultation closes on October 30.
Write to Michael Klym / Adrian Brazier
Communications & Content Industries
Department for Business, Enterprise & Regulatory Reform
UG28-30
1 Victoria Street
London SW1H 0ET
Tel: 020 7215 4165 / 1295 Fax: 020 7215 5442
Email: mike.klym@berr.gsi.gov.uk / adrian.brazier@berr.gsi.gov.uk
Monday, July 07, 2008
Result of IMCO vote
For those who have been following this saga, the pretty much expected news was that all the amendments went through. They now get voted on with the rest of the package on I think Sept 7.
The good news, as far as Pangloss is concerned, is that the drafter, Malcolm Harbour, got interviewed at same time as me by the Beeb, and reiterated, as he had in return emails to voters throughout the day, that it was absolutely not the intention of the amendments to lay the foundations for legitimising member states introduction of "3 strikes and you're out". Pangloss is relieved to hear this.
Harbour added that if the amendments could be so interpreted, were too wide basically, then he'd be happy to accept other amendments making it clear this wasn't intended to be the case.
Pangloss thinks this an excellent way to proceed, and hopes there is an opportunity in the remaining legislative process to tighten these provisions up in a way that retains their public interest intent (eg public education about child pornography) but could not be subsequently misinterpreted as legitimising 3 strikes legislation.
Harbour and I may be on R4 later depending what else happens in the news - it will definitely apparently be on Radio 5Live later, and online, and a full version of the interviews may be on iPM , the online version of the Radio 4 show which podcasts on Saturday.
It's been an interesting couple of days. I am now going to back to writing Law and the Internet!
UPDATE: You can hear the debate between Malcolm Harbour MEP and myself here, including his concession re future amendments.
The good news, as far as Pangloss is concerned, is that the drafter, Malcolm Harbour, got interviewed at same time as me by the Beeb, and reiterated, as he had in return emails to voters throughout the day, that it was absolutely not the intention of the amendments to lay the foundations for legitimising member states introduction of "3 strikes and you're out". Pangloss is relieved to hear this.
Harbour added that if the amendments could be so interpreted, were too wide basically, then he'd be happy to accept other amendments making it clear this wasn't intended to be the case.
Pangloss thinks this an excellent way to proceed, and hopes there is an opportunity in the remaining legislative process to tighten these provisions up in a way that retains their public interest intent (eg public education about child pornography) but could not be subsequently misinterpreted as legitimising 3 strikes legislation.
Harbour and I may be on R4 later depending what else happens in the news - it will definitely apparently be on Radio 5Live later, and online, and a full version of the interviews may be on iPM , the online version of the Radio 4 show which podcasts on Saturday.
It's been an interesting couple of days. I am now going to back to writing Law and the Internet!
UPDATE: You can hear the debate between Malcolm Harbour MEP and myself here, including his concession re future amendments.
Something completely different
As a break from all this changing the world, the wonderful Lex Ferenda has drawn my attention to this:
. when is a crisp not a crisp? When it's a Pringles!
See Procter & Gamble v HMRC [2008] EWHC 1558 (Ch) and in particular the glorious write up here.
Food gets a 0% VAT rate. But potato chips and potato crisps get 17.5% VAT food as "snack food", the case explains. Where do Pringles fall? According to Pringles, they are zero rated, because unlike crisps, they come in a tin and contain potato flour as well as potatoes! ((And also unlike crisps, are horrible and smell, says Pangloss - but without prejudice..)
This might make you think, says Daithi, that that " the intention was to classify food like potato crisps as non-zero for policy reasons. But the judge says (perhaps with tongue in junk-filled cheek), in dismissing Revenue’s policy arguments (that the idea of denying the zero rate to potato crisps was an anti-junk food policy):
Daithi is of course, Irish and thus inherently pro-potatoes. He is also emerging as the Charlie Brooker of IT law:-)
. when is a crisp not a crisp? When it's a Pringles!
No this isn't IPKat
See Procter & Gamble v HMRC [2008] EWHC 1558 (Ch) and in particular the glorious write up here.
Food gets a 0% VAT rate. But potato chips and potato crisps get 17.5% VAT food as "snack food", the case explains. Where do Pringles fall? According to Pringles, they are zero rated, because unlike crisps, they come in a tin and contain potato flour as well as potatoes! ((And also unlike crisps, are horrible and smell, says Pangloss - but without prejudice..)
This might make you think, says Daithi, that that " the intention was to classify food like potato crisps as non-zero for policy reasons. But the judge says (perhaps with tongue in junk-filled cheek), in dismissing Revenue’s policy arguments (that the idea of denying the zero rate to potato crisps was an anti-junk food policy):
Indeed, extracted from the judgement (summarised by me, actual listing in appendix to judgement), we can see that Pringle-buyers are also likely to buy other zero-rated products such as KP Skips (no longer with potato ingredients), Doritos, Quaker Snack-a-Jacks, Jacobs Twiglets and Mini Cheddars (biscuits) or standard-rated products such as Monster Munch (no potatoes but content made from “swelling cereal” which attracts standard rate); McCoys (conventional potato crisps); KP Hula Hoops (because of potato flour); Walkers’ Quavers (potato flour); Walkers’ Potato Heads (with actual potato)."[The Tribunal below accepted] that in general the intention of Parliament was to standard-rate food that was not purchased primarily for the purpose of nutrition. However, one must be very careful about reading too much into the statutory provisions. It cannot, in my view, be said that the legislation shows a clear policy to tax “junk food”. What difference, one might ask, is there between a turnip crisp and a potato crisp in terms of its “junkiness” or otherwise? One might think that the answer is very little and yet the former is zero-rated and the latter standard rated. It is not difficult to multiply examples of that sort. There are plenty of “junk foods” which do not fall within any of the exceptions from zero-rating for food; there are also examples of healthy foods which are standard rated, for instance freshly squeezed orange juice available in supermarkets which falls within excepted item 4.
Daithi is of course, Irish and thus inherently pro-potatoes. He is also emerging as the Charlie Brooker of IT law:-)
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