Top Gear, Privacy and Identity

.. not a set of three things I ever expected to string together!!

Fascinating story of the week is that Top Gear's famous pet racing driver, The Stig ("some say he is the bastard child of Sherlock Holmes and Thierry Henri") wants to break his contractual and confidential obligations of silence as to his true identity imposed by his (presumably lucrative) BBC contract, so that he can reveal his name and make big $$$ out of his autobiography, in the style of his fellow presenters Clarkson et al, all of whom have reportedly made millions out of parlaying their popularity from the show.

It's a cracker this, in a week when the headlines are already full of a half hint that the Con_Dem government are thinking of having a bash at Eady J's judge-made law on privacy, breach of confidence and press freedom. The general tone of the hints in press has been that the balance has shifted too far in favour of protecting celebrity privacy, and too far from allowing the press to make lots of money out of kiss and tell tittle tattle, sorry," fulfil their public investigative duties".

So we already have an extensive debate about how far celebrities should be able to preserve their privacy even where they live their lives to some extent in public; but till now we've rarely had a debate about whether the "right to respect for private life" (Art 8 of the ECHR, which founds the recent line of English cases on privacy and confidence) also covers the right to disclose as well as hide your secrets.

From one perspective, the right to assert your "nymic" identity seems clearly like something that should be an intrinsic part of private life. In more modern instruments than the ECHR, such as the UN Convention on the Rights of the Child, a right to a name and an identity is explicit. In the ECHR, case law has extended the right to family life to something very similar, with numerous cases on the rigt to a name, to a state affiliation qand to an immigration or domicile status. These cases are complex and go both ways but the underlying notion that private life includes identity is one which most scholars would I think acknowledge.

But another way to look at it - and one I am sure the BBC lawyers are quite keen on - is that this was a simple commercial transaction where the Stig was paid for silence. Non disclosure agreements (contracts) or NDAs are of course ubiquitous. As with the general domain of privacy and personal data online, the question then becomes the more controversial one of how far should you be able to sign away your basic rights by contract. Adopting the language of restrictive covenants, it would be surely be unreasonable if The Stig was not allowed to use his own name in any walk of life, or with any employer. But is it reasonable that be be bound indefinitely by his consent even by the BBC? The question also arises of what remedy would be reasonable here if the BBC were say to seek an injunction to prevent any name-attached autobiography of The Stig being published. In libel law, , the common aphorism is that common law courts prefer not to grant allow prior restraint of speech on allegations of defamation, but to impose damages subsequent to publication if damage to reputation then ensued: "publish and be damned". In pure contract or confidence actions, such a bright line does not pertain. Should The Stig have the right to assert his name and pay the BBC if they suffer loss as a result? Or should he be stoppable by injunction as is possible in the ordinary law of breach of contract?

I'd love to see this go to court but I strongly suspect it'll settle .

IGF: upcoming

I'll be speaking on this workshop at the upcoming Internet Governance Forum in Vilnius and will also be speaking on a panel on online human rights and state responsibilities representing the Council of Europe. I'm very much looking forward to my first IGF:-)

IGF Workshop on "The Role of Internet Intermediaries in Advancing Public Policy Objectives"

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The goal of the Workshop is to discuss and identify lessons learned from experience to date of Internet intermediaries in helping to advance public policy objectives. The workshop will introduce the concept of “Internet intermediaries”, the categories of actors considered, their role, and the three ways in which intermediaries can take on a policy role: through responses to legal requirements; through their business practices; and through industry self-regulation. It will discuss the roles and responsibilities of Internet intermediaries for actions by users of their platforms, their nature and extent and the implications. The workshop is part of a stream of work being conducted by the OECD.

The workshop will take place on September 16 from 14.30 to 16.30, in Room 1.

Social networks, 2010 vn

As someone whose last book used the original,wonderful xkcd cartoon as its cover, it seems only right to bring you the updated version! (NB NOT by Randall Munroe, though glad to see they acknowledge him.)

ps but shouldn't that be "sunken island of Google Buzz?"

Do robots need laws? : a summer post:)

I can so use this for the EPSRC Robotics Retreat I am going to in September!! (via io9 with thanks to Simon Bradshaw)



Another slightly more legal bit of robotics that's been doing the rounds, is this robots.txt file from the last.fm site. Robots.txt for the non techies are small text files which give instructions to software agents or bots as to what they are allowed to do on the site. Most typically, they do or don't tell Google and other search engines whether they are allowed to make copies of the site or not ("spider" it). No prize at all for the first person to realise what famous laws the last three lines are implementing:-)

User-Agent: *
Disallow: /music?
Disallow: /widgets/radio?
Disallow: /show_ads.php

Disallow: /affiliate/
Disallow: /affiliate_redirect.php
Disallow: /affiliate_sendto.php
Disallow: /affiliatelink.php
Disallow: /campaignlink.php
Disallow: /delivery.php

Disallow: /music/+noredirect/

Disallow: /harming/humans
Disallow: /ignoring/human/orders
Disallow: /harm/to/self

Allow: /

This all raises a serious underlying question (sorry) which is, how should the law regulate robots? We already have a surprising number of them. Of course it depends what you call a robot: Wikipedia defines them as "an automatically guided machine which is able to do tasks on its own, almost always due to electronically-programmed instructions".

That's pretty wide. It could mean the software agents or bots that as discussed above, spider the web, make orders on auction sites like eBay, collect data for marketing and malware purposes, learn stuff about the market, etc - in which case we are already awash with them.

Do we mean humanoid robots? We are of course, getting there too - see eg the world's leading current example, Honda's ASIMO, which might one day really become the faithful, affordable, un-needy helpmate of our 1950's Campbellian dreams . (Although what happens to the unemployment figures then?? I guess not that much of the market is blue collar labour anymore?) .But we also already live in a world of ubiquitous non humanoid robots - such as in the domestic sector, the fabulous Roomba vacuum cleaner, beloved of geeks (and cats); in industry, automated car assembly robots (as in the Picasso ads) ; and, of course, there are emergent military robots.

Only a few days ago, the news broke of the world's alleged first robot to feel emotions (although I am sure I heard of research protypes of this kind at Edinburgh University's robotics group years back.) Named Nao, the machine is programmed to mimic the emotional skills of a one-year-old child.

"When the robot is sad it hunches its shoulders forward and looks down. When it is happy, it raises its arms, looking for a hug.

The relationships Nao forms depend on how people react and treat it

When frightened, it cowers and stays like that until it is soothed with gentle strokes on the head.The relationships Nao forms depend on how people react and treat, and on the amount of attention they show."

Robots of this kind could be care-giving companions not only for children, but perhaps also in the home or care homes for lonely geriatrics and long term invalids, whose isolation is often crippling. (Though again I Ludditely wonder if it wouldn't be cheaper just to buy them a cat.)

Where does the law come into this? There is of course the longstanding fear of the Killer Robot: a fear which Asimov's famous first law of robotics was of course designed to repel. (Smart bombs are of course another possibility which already, to some extent exist - oddly they don't seem to create the same degree of public distrust and terror, only philosophical musings in obscure B-movies.) But given the fact that general purpose ambulant humanoid artificially intelligent robots are still very much in the lab, only Japan seems so far to have even begun to think about creating rules securing the safety of "friendly AIs" in real life, and even there Google seems to show no further progress since draft guidelines were issued in 2007.

But the real legal issues are likely to be more prosaic, at least in the short term. If robots do cause physical harm to humans (or, indeed, property) at the moment the problem seems more akin to one for the law of torts or maybe product liability than murder or manslaughter. We are a long away away yet from giving rights of legal personality to robots. So there may be questions like how "novel" does a robot have to be before there will be no product liability because of the state of the art defense? How much does a robot have to have a capacity to learn and determine its own behaviours before what it does is not reasonably foreseeable by its programmer?? Do we need rules of strict liability for robot behaviour by its "owners" - as Roman law did and Scots law still does for animals, depending on whether they are categorised as tame or wild? And should that liability fall on the designer of the software, the hardware, or the "keeper" ie the person who uses the robot for some useful task? Or all three?? Is there a better analogy to be drawn from the liability of master for slave in the Roman law of slavery, as Andrew Katz brilliantly suggsted at a GikII a while back??

In the short(er) term, though, the key problems may be around the more intangible but important issue of privacy. Robots are likely as with NAO above to be extensively used as aids to patients in hospitals, homes and care homes; this is already happening in Japan and S Korea and even from some conference papers I have heard in the US. Such robots are useful not just because they give care but because they can monitor, collect and pass on data. Is the patient staying in bed? Are they eating their food and taking their drugs and doing their exercises? Remote sensing by telemedicine is already here; robot aides take it one step further. All very useful but what happens to the right to refuse to do what you are told, with patients who are already of limited autonomy? Do we want children to be able to remotely surveille their aged parents 24/7 in nursing homes, rather than trek back to visit them, as we are anecdotally told already occurs in the likes of Japan?

There are real issues here about consent, and welfare vs autonomy which will need thrashed out. More worryingly still, information collected about patients could be directly channeled to drug or other companies - perhaps in return for a free robot. We already sell our own personal data to pay for web 2.0 services without thinking very hard about it - should we sell the data of our sick and vulnerable too??

Finally robots will be a hard problem for data protection. If robots collect and process personal data eg of patients, are they data controllers or processors? presumably the latter; in which case very few obligations pertain to them except concerning security. This framework may need sdjusting as the ability of the human "owner" to supervise what they do may be fragile, given leearning algorithms, bugs in software and changing environments.

What else do we need to be thinking about?? Comments please :-)

Reforming privacy laws

The videos are up from the recent very successful ORGcon on digital rights; and here is the vid of the panel Pangloss appeared on (all speakers v good - I appear about 9 mins in).

[ORGCon] Reforming Privacy Laws from Open Rights Group on Vimeo.

Note that since this event in July the Commission has announced the draft reform proposal for the DPD will be delayed till probably the second half of 2011 (sigh!)

For those interested, the recent Wall Street Journal spread on privacy threats from a US perspective is also well worth perusing (follow links at end for related stories - there are 6 or so)

The Sunday Times are supposed to be publishing a UK follow up today (August 8) in which Pangloss should be quoted - but since its behind paywall I haven't been able to check :-)

Google Makes TM Changes to Adwords Across EU

Google have issued an interesting press release today about changes they are making to follow up on the recent ECJ Adwords decision.

We defended our position in a series of court cases that eventually made their way up to the European Court of Justice, which earlier this year largely upheld our position. The ECJ ruled that Google has not infringed trade mark law by allowing advertisers to bid for keywords corresponding to third party trade marks. Additionally, the court ruled that advertisers can legitimately use a third party trademark as a keyword to trigger their ads

Today, we are announcing an important change to our advertising trademark policy. A company advertising on Google in Europe will now be able to select trademarked terms as keywords. If, for example, a user types in a trademark of a television manufacturer, he could now find relevant and helpful advertisements from resellers, review sites and second hand dealers as well as ads from other manufacturers.

This new policy goes into effect on September 14. It brings our policy in Europe into line with our policies in most countries across the world. Advertisers already have been able to use third party trademarked terms in the U.S. and Canada since 2004, in the UK and Ireland since 2008 and many other countries since May, 2009.

The most interesting bit for Pangloss is that what accompanies this is a new type of notice and takedown procedure.

In the affected European countries after September 14, 2010, trademark owners or their authorized agents will be able to complain about the selection of their trademark by a third party if they feel that it leads to a specific ad text which confuses users about the origin of the advertised goods and services. Google will then conduct a limited investigation and if we find that the ad text does confuse users as to the origin of the advertised goods and services, we will remove the ad. However, we will not prevent use of trademarks as keywords in the affected regions.

This is an interesting way of implementing the caveats in the ECJ decision. Google have generally sought to automate all their processes as far as possible, whereeas this will create a lot of manual work in processing what will no doubt be a storm of cease and desist notices - compare the Content ID approach on YouTube where take down exists and is faithfully followed, but there is also a push towards persuading IPholders to submit their own works for pre emptive filtering. However in this case they clearly think the work involved in implementing this new scheme will make more money for them in advertising revenue, than it will lose in costs of manual take down. And take down should fend off most future litigation, though not, I suspect, all. For businesses , a harmonised policy through all EU is always a boon.

It would be interesting to see some empirical data emerging on how this affects the choice of keywords, click-through and text of AdWords ads in future, and how this does or not benefit the public interest in access to information in advertising. Google's usual approach to open data should be helpful here. (Will takedown notices under this scheme go to Chilling Effects website, as linking-to-content take down requests do? I hope so.)

We are not amused? Jokes, twitter and copyright

Q. Why did the comedian Tweeter cross the road?..

A. .. to steal someone else's joke posted on Twitter??

The Grauniad reports today on the latest spat in the turf war that is developing on Twitter between comedians trying out jokes and material, and passing other parties quietly re using thus material, sometimes explicitly under their own name.

It seems that Keith Chegwin, now no longer for some while the fresh faced lad of Saturday morning TV, has hit rock bottom and resorted to passing off jokes gathered on Twitter as his own "old" material.

Chegwin decided to use his account, where he has more than 36,000 followers (no, me neither), to broadcast a whole load of gags and one-liners. He claimed that these were either his own work, or traditional gags minted by long-dead comics.

Unfortunately, they weren't. Among the gags retold by the one-time player of pop were identifiable jokes written by a number of contemporary standup stars, including Milton Jones, Lee Mack and Jimmy Carr. And what Cheggers presumably envisaged as a warm-hearted bit of fun has stirred up a sizeable amount of bad feeling within the comedy community. One comedian, Ed Byrne, even took Chegwin to task on Twitter, telling him he was wrong not to credit "working comics" for the jokes he was using.

This is not the first occasion of such, er, lack of amusement, emerging. My esteemed colleague @loveandgarbage tells me that this is a common source of disquiet. Comedians like to test and work on their material and Twitter with its potential for response and re-tweeting is a prfect venue for this. But the real question is, does anyone own a joke? Should they? Isn't this common cultural property? Where would society be if the first person to invent a "knock knock " job had asserted copyright in it?

Jokes - and especially tweeted jokes - are often quite short, vaguely familiar variations on a theme, and don't look much like the public conception of a "literary work", which is the applicable category of copyright (for written down jokes anyway). But the law as usual is not as simple as ordinary common sense.

Copyright exists only in works which are "original literary works". But case law has set a very low bar on such protection. A "literary" work has been held to include a long list of extremely unexciting written-down "things", eg, exam papers, football coupon forms, and a large number of meaningless five letter words used as codes. Looking at rather short literary works, it is generally acknowledged, eg, that some particularly pithy headlines might well engage copyright, though slogans are more contested, and usually protected by trade mark. There is the famous Exxon case, Exxon Corp. v. Exxon Insurance Consultants International Ltd [1982] Ch. 119, in which the English court held one word was too short to be a literary work. But 140 characters is somewhat longer and there is an interesting quote in the Exxon case from University of London Press Ltd. v University Tutorial Press Ltd. [1916] 2 Ch. 601 in which Peterson J. said, at pp. 609-610:

The objections with which I have dealt do not appear to me to have any substance, and, after all, there remains the rough practical test that what is worth copying is prima facie worth protecting.

Copying jokes certainly seems to be a worthwhile economic activity. But are jokes "original"? There is surely an argument that, like recipes, every joke that exists has already been invented in some fundamental form - and therefore can be freely copied and adapted. Yet jobbing comedians do put a great deal of work into, and base their income on, inventing "new" jokes - and as the Grauniad note, the culture has shifted since the 80s to a point where comedians now regularly claim to "own" their jokes (I've also just been referred to this fascinating piece):

The idea that a comedian had outright ownership of his material seems to have taken root in this country once Manning et al gave way to the Ben Elton generation. For the original alternative comedians, simple gag-telling was far less important than presenting a fully-formed original perspective on the world. And if you were trying to offer an audience something distinctive (with all the added hard work that involves) then it became crucial to ensure that your gags were wholly your own....In recent years, the main victims of plagiarism in standup have been those comics who rely heavily on one-liners and quickfire jokes. For gag thieves, these present the perfect opportunistic crime: they're easy to lift and contain fewer hallmarks of the originator's personality.

So maybe there is copyright in the jokes in question, and poor Cheggers is a copyright pirate. (Appealing to Technollama here to insert a Photoshop mock up pic!) But there is a serious point here, of which the Twitter joke is (paradoxically) a good example.

Is there copyright generally in any tweet? If so, what happens to re-tweeting? Passing around tweets by re-tweeting them is, for most tweeters, welcome : both providing an ego boost and allowing the community to share useful and amusing information at lightning speed. Yet if copyright exists in tweets, such activity is prima facie copyright infringing.

Again, there is a strong argument that by writing in an unprotected, open to the public, Twitter account, you are granting an implied license to copy. (Twitter itself seems to recognise this by providing no re-tweet button where the tweet is a friends-only one.) However the "implied license" argument has been frequently repelled on the Net generally: it is now very well accepted that simply posting something on a website, like a photo, or a story, does not in any way grant permission to all and large to reproduce it (cf a thousand spats over fans downloading pictures of their heroes from official media websites). Why should Twitter be any different? As usual, this would very much be on a case by case basis and depend on intentions, if litigation was ever to occur.

So we are left in a dilemma. If comedians are to get protection, we may prejudice perhaps the fundamental mechanism by which Twitter adds value to its community: the re-tweet.

But that's not the only problem. Presumptively granting copyright to tweets would allow particular tweets to be easily suppressed from distribution on threat of legal action, something that migt have serious chilling effects on freedom of speech.

Most recently, eg, take the Ben Goldacre/ Gillian McKeith spat, over whether Ms McKeith had called Mr Goldacre a liar on Twitter. Conveniently for the Goldacre side, someone had taken a screen cap of the incriminating tweets by McKeith, before she sensibly and fairly quickly deleted them. I wondered at the time if these tweets were not her copyright, and thus illicitly copied and distributed - as clearly she had not given permision, or if she had, had withdrawn it by deleting the tweets on her own account. And copyright can be so much easier a way to suppress speech than libel since it does not involve any enquiry over whether what was said was a lie or detrimental to anyone's reputation.

Of course, again (as with yesterday's FOI post) in copyright, there are exceptions for news reporting and public interest elements. But these are untested for social media and particularly for amateur tweeters rather than professional journalists. (It is interesting in the two pieces linked to above, that the Guardian themselves link directly to the screen-capped tweets, but Goldacre, a clever careful man, does not. :) Most lay people receiving a cease and desist on copyright grounds would probably delete a re-published tweet without demur. This could be the next way to suppress speech on a vigorous liberal forum like Twitter for everyone from Ms McKeith to the Church of Scientology.

Turning into a bit of a bad joke, eh? :-)

When does information not want to be free?

Apparently, when it's been released under a freedom of information (FOI) request!

This is not, I imagine, the answer you, gentle reader, expected:)

Pangloss was recently asked by an acquantance, X, if he ran any legal risk by publishing on a website some emails he had obtained from the local council, as part of a local campaign against certain alleged illicit acts by that council. According to X, the emails could destroy the reputation of certain local councillors involved, and that they had had great difficulty extracting the emails, but finally succeeded. Obviously the value to the public in terms of access to the facts - surely the whole point of FOI legislation - would be massively enhanced if the obtained emails could be put on the campaign website.

My advice was that I was no FOI expert but since data cannot be released under FOI when it reates to a living person, DP and breach of confidence were not likely to be problems (though the latter was not impossible), and the main danger was surely libel, in which case truth was a complete defence. There would of course be a risk that councillor A might be lying about councillor B to the detriment of their reputation; in which case there was a danger of re publishing a libel. But that didn't seem all that germane and a public interest defence (though not one Pangloss would like to depend on, if it was her money) would certainly be possible.

I was wrong. Asking more people (and many thanks here to the wonderful ORG-legal list, especially Technollama, Victoria McEvedy, Simon Bradshaw, Daithi MacSithigh and Andrew Katz)) revealed the main weapon for gagging publication of FOI requests: that useful, all purpose, font of legal restraint - copyright.

In my innocence, I would have expected that a document obtained under FOI could be automatically republished by the recipient. Not so. The Office of Public Sector Information (OPSI)'s website reminds us that :

Information listed in Publication Schemes, which can be disclosed under FOI, will be subject to copyright protection. The supply of documents under FOI does not give the person who receives the information an automatic right to re-use the documents without obtaining the consent of the copyright holder. Permission to re-use copyright information is generally granted in the form of a licence.[italics added]

As with most legal issues, the devil is in the detail here. Why should permission to republish only be "generally granted"? Why is it not compulsory to grant a license (though not necessarily for no consideration)? In the example at hand, the copyright holders have fought to prevent disclosure and have every reason to refuse to grant copyright permission. This seems both immoral and against the whole point of FOI.

Technollama advises me that where information is Crown copyright, there are indeed generally obligations under the Public Sector Information Directive (PSID) to release that information under some open licensing scheme. Currently this is Click-Use, but will soon be Creative Commons. An "open licensing" scheme does not necessarily mean you get to publish for free either, but it should mean copyright could not be used to gag publication. This all sounds good and right. The general reasoning behind the PSID obligations is that public money pays for public data, so the public should be able to access it and re-use it to create both economic and creative public benefits .

A similar reasoning lies behind the recent acclaimed open data.gov initiatives involving Tim Berners-Lee and Nigel Shadbolt's Web Science team. Various campaigns such as the Guardian's Free our Data calls have influenced UK public opinion to the point where the UK government seems to have acknowledged that public data should be able to be - well - published - and then re-used for public benefit.

However Crown copyright only applies in general to works generated by central not local government. And in any case it is more than possible that emails of this kind might be the copyright of the individual senders themselves, not the council, especially given the lack of a contract of employment.

(There are plenty of public bodies subject to FOI whose works are not Crown copyright, including eg the BBC and the ICO - see a selected OPSI list here - so this is going to be a common problem.) Of course it is possible the emails might not qualify for copyright at all - but given the low level of orginality test etc usually applied nowadays, this is pretty unlikely.

So here is a case where the law has already agreed that there is a public benefit in being able to scrutinise the activities of public officials (in this case, local councillors) yet there is no obligation to allow re-publication, merely a suggestion. In this case, the incentive to allow public republication is ethical and moral, not economic. Should that make any difference? I don't think so: perhaps the reverse.

Copyright of course has exceptions. Even if the council or councillors in question refused to license republication, it might be claimed that well known defences like news reporting or public interest might apply to allow copyright to be trumped. The OPSI site acknowledges this (see para 2). But we all know that the chilling effect of the threat of expensive litigation is likely to be an effective muzzle for most members of the lay public, if only vague and untested defences lie between them and big legal debts.

Would it not be far, far more sensible simply to require that where copyright materials are released under FOI (perhaps after a decent interval if necessary to allow for appeals) then a licesne to republish MUST be granted? Reasonable commercial conditions could apply depending on the value of licensing the information; which would be zero for scurrilous emails, but would stop people using FOI as a back door to getting free copies of expensive information. (Though as noted, the trend is for free release of public data anyway.)

The UK is not the only country to allow this under its FOI law In Canada, in 2008, Michael Geist discovered that the Vancouver BC government were asserting copyright over released by FOI materials. He wrote:

The notion that the media may not inform readers of harms to the public interest without first pleading for the state's permission and paying a copyright fee is deeply troubling.

I could not agree more. The current situation is an appalling (and little known) travesty of what FOI is all about. It needs changed.

gIKii Programme

Should have put up this sooner!! But read and weep if you're not going to be there..

Monday 28 June

09:30-5.30 Day One

9.30 Intro
9.45-11.15 Cloudy with a Chance of Legal Issues? Augmented and clouded platforms

• Andres Guadamuz, "We Can Tag It for You Wholesale: Augmented Reality and the User-Generated World".
• Martin Jones, "Human! We used to be exactly like them. Flawed. Weak. Organic. But we evolved to include the synthetic. Now we use both to attain perfection".
• Miranda Mowbray, "What the Moai know about Cloud Computing: Stone-age Polynesian technology and the hottest trend in computing today".

11.15 Coffee

11.30-13.15 We.Vote, You.Gov, She.Lurks? Social networks, politics, participation

• Lilian Edwards, "The Revolution will not be Televised: Online Elections and the Future of Democracy?"
• Judith Rauhofer, "The Rainbow Connection - of geeks, trolls and muppets".
• Caroline Wilson,"Is it Politic? Policy-makers' use of SNSs in policy-formation".
• Hugh Hancock, "Stories for Laws: the narratives behind the Digital Economy Bill, which ones worked, and most importantly: why?"
  

13.15-14.00 LUNCH

14.00-14.20 Apres lunch entertainment: Ray Corrigan - Maths for the Terrified (and lawyers)

14.20pm-15.40 Rip, mix, share, tweet?: Current IP/ Music Issues

• Dinusha Mendis, "If Music be the food of Twitter – then tweet on, tweet on . . . An evaluation of copyright issues on Twitter".
• Nicolas Jondet, "The French Copyright Authority (HADOPI), the graduated response and the disconnection of illegal file-sharers".
• Nicola Osborne, "Dammit! I'm a Tech (the "Services" or "Site") Punter (the "User" or "Member") not a Lawyer!"
• Megan Carpenter, "Space Age Love Song: The Mix Tape in a Digital Universe".

15.40 Tea

16.00-17.30 pm Crime and Punishment Privacy

• Andrea Matwyshyn, "Authorized Access".
• Rowena Rodrigues, "Identity and Privacy: Sacred Spice and All that's Nice".
• Andrew Cormack, "When a PET is a Chameleon".

19:30 Sponsored conference diner.
The Apex City Hotel, 61 Grassmarket, EH1 2JF

Tuesday 29 June

9.30-11.00 Just Google It, Already!

• Daithi Macsithigh, "What We Talk About When We Talk About Google".
• Trevor Callghan, "GOOGLE WANT FREND!"
• Wiebke Abel, Burkhard Schafer and Radboud Winkels, "Watching Google Streets through a Scanner Darkly".

11.00 Coffee

11.15-13.00 Just Artistic Temperament? IP law and theory

• Steven Hetcher, "Conceptual Art, Found Art, Ephemeral Art, and Non-Art: Challenges to Copyright's Relevance".
• Chamu Kappuswamy, "Dancing on thin ice - Discussions on traditional cultural expression (TCE) at WIPO".
• Gaia Bernstein, "Disseminating Technologies".
• Chris Lever, "Netizen Kane: The Death of Journalism, Artificial Intelligence & Fair Use/Dealing".

13.00 Lunch

2.15-16.00 One World is Not Enough: law and the virtual / game

• Simon Bradshaw and Hugh Hancock, "Machinima: Game-Based Animation and the Law".
• Ren Reynolds (& Melissa de Zwart), "Duty to Play".
• Abbe Brown, "There is more than one world...."
• Michael Dizon, "Connecting Lessig's dots: The network is the law".

Huge news - You Tube wins on safe harbor vs Viacom

YouTube wins case against Viacom

"

Today, the court granted our motion for summary judgment in Viacom’s lawsuit with YouTube. This means that the court has decided that YouTube is protected by the safe harbor of the Digital Millenium Copyright Act (DMCA) against claims of copyright infringement. The decision follows established judicial consensus that online services like YouTube are protected when they work cooperatively with copyright holders to help them manage their rights online.

This is an important victory not just for us, but also for the billions of people around the world who use the web to communicate and share experiences with each other. We’re excited about this decision and look forward to renewing our focus on supporting the incredible variety of ideas and expression that billions of people post and watch on YouTube every day around the world.

UPDATE: This decision also applies to other parties to the lawsuit, including the Premier League".


Commentary at TechDirt and hopefully, from me in next few days. This is big.

A Day in Paris (Is Like a Year In Any Other Place.)

Pangloss just spent a very intense, very challenging day at the OECD Workshop on the Liability of 0nline Intermediaries, sadly curtailed by the need to rush off on a plane to Estonia (of which more anon). The idea was to kick off a major programme of work in this area and the great and good were assembled in force, with pithy comments and insights coming thick and fast.

Danny Weitzner, who was a fresh faced freedom fighter for the CDT when I first met him, transmogrified into a rising star at the WWW and MIT, and is now an adviser to Obama (ah, why doesn’t UK academe provide this kind of career path!) lead the forces favouring, by and large, US-style industry self regulation, but noted that even in 1731, Benjamin Franklin had recognised need for intermediary immunities by presenting an “apology for printers” (of the human, not inkjet, kind) lest they be persuaded by criticism to print only texts they were personally convinced by.

Peter Fleischer, chief privacy counsel for Google, made the political decidedly personal, by commencing his intervention on privacy and intermediaries with anecdotes about being a convicted criminal who could no longer enter Italy (prompting mildly irascible responses from various Italians trying to make it plain they were not exactly the new China). Gary Davis from Ireland, perhaps a tad controversially for a data protection deputy commissioner, noted that there seemed to be emerging agreement on trading personal data for free web 2.0 services, but the question was, how much data was too much data; and Bruce Schneier (no link needed!) created the biggest stir of the day (to Pangloss’s silent cheers) by mentioning almost casually that, at least in relation to security, he had never had much time for user education. An unnamed EU Commission person made the sign of the cross and quoted liberally from the EC’s Safer Social Networking principles. Lightning did not however smite the infidel Schneier.

Jean Bergevin, in charge of the EC Commission’s much delayed but upcoming review of the E-Commerce Directive (ECD) (expect a consultation soon) took ferocious notes and reminded those present that although copyright and criminal liability may steal the headlines, the exclusion of gambling from the ECD gives a case study of how these things pan out (clue: not well) when safe harbours for intermediaries are not in place. The response seemed to be for the actual gambling hosting websites to move safely offshore, leading to undue pressure from states against payment intermediaries, so as to starve the unauthorised gambling sites of funds; yet, on the whole, these strategies merely multiplied bureaucracy and were still unsuccessful, since the grey market found ways round them (as it did, I noted, when similar strategies were applied to stimey offshore illegal music sites like AllofMP3.com in Russia). Later Mr Bergevin finally enlightened me as to why the ECD excludes data protection and privacy from its remit, as famously was publicised during the Google Italy case; not some abstract academic justification, but just that “that belonged to another Directive”. Time to raise the issue of intermediary liability in the ongoing DPD reform process then, methinks?

My own main contribution came in the first scene-setting session, where Prof. Mark MacCarthy of Georgetown University kicked off discussion on whether the OECD (which is also soon to review its longstanding and much applauded privacy guidelines) could conceivably come up with similar global guidelines on intermediary liability acceptable to all states, all types of intermediaries (ISPs, search engines, social networking sites, domestic hosts, user generated content sites?) and all types of content related liability (copyright, trademark, porn, libel, privacy, security??)? Everyone agreed that once upon a time a rough global consensus on limited liability, based around the notice and takedown (NTD) paradigm, had been achieved c 2000, with the standout exception of the US’s CDA s 230(c), which provided total immunity to service providers in relation to publication torts, but which was seen in the EU at least as something of a historical accident.

Since then, however, twin pressures from both IP rightsholders seeking solutions to piracy, and states keen to get ISPs to police the incoming vices of online child pornography, pro-terror material and malware, had converged to drive some legislatures, and some courts, towards re-imposing liability on online intermediaries (graduated response laws and ISPs being one of the most obvious case studies) and even moving tentatively from a post factum NTD paradigm to an ex ante filtering duty (SABAM, some Continental eBay counterfeit goods cases, the projected Australian mandatory filtering scheme for adult content). While the “top end” of the market might sort its own house out in the negotiable world of IP without further regulation (see the protracted Viacom v YouTube saga, which could be seen as a very expensive game of blind negotiator’s bluff) other areas were (still) less amenable to self regulation.

Privacy was identified very early on as an outstanding example of this: getting sites like Facebook and Google, which live off the profits of selling their client’s personal data, to take the main responsibility for policing those clients’ privacy was, as one speaker said, like getting the wolf to guard the sheep. Ari Schwartz of the CDT interestingly noted the new-ish difficulty of getting businesses like Facebook to take responsibility vis a vis their own users for third party apps using their platform. Apple however were piloting a new model of responsibility by careful selection of apps allowed to use their platforms, while Google Android were doing it differently again (I want to come back to this fascinating discussion in a separate post).

My own points circled around the idea that increasingly, the current idea of “one size fits all” enshrined in the ECD does not really work; more in relation to types of liability though (copyright vs libel , for example, with very diifferent balances of rights and public policy at work) than in relation to types of intermediaries (did search engines really need a special regime, of the kind the DMCA has and the ECD doesn’t, I was asked? My answer, given the fact that the two most troublesome EC Google cases – Italy and Adwords – have actually related to hosting not linking – was probably no (though that still leaves Copiepresse to sort out).)

However there was also room for thinking about different regimes for different sizes of intermediaries – small ISPs and hosts, eg, will simply crumble under the weight of any potential monitoring obligations, jeopardising both freedom of expression and innovation, while in a similar bind, Google can afford to build a Content ID system for YouTube which lets filtering become, effectively, a monetising opportunity. All this of course still avoided the main problem, of how complicit or “non neutral” (in the words of the ECJ Adwords case) an intermediary has to be in relation to illegal or infringing behaviour or content (cf eBay, YouTube, Google etc) before it should lose any special immunities. On that point, even the EU let alone the OECD is going to have to work very, very hard to find consensus.

Security provided the best example (and the best panel) of the day on how market-driven self regulation cannot always provide an optimum solution in the Internet intermediary world, given the prevalence of what became known by shorthand as “misaligned incentives”. Put simply, this refers to the situation where A causes harm to B (or to everyone) but does not suffer the costs of those harms themselves and so has no or few incentives to correct/avoid them. So one of the most obvious ways to reduce malware spread, botnet threats, etc would be to ask ISPs to monitor users on their networks, isolate them if they became apparently infected by malware, and refuse to allow them to rejoin the Internet until they had submitted to “decontamination” and perhaps mandatory reloading of anti-virus protection plus automatic patching. In fact however ISPs mostly don’t do this; partly because there’s no extra money in it for them, but rather a possibility of years of wearying customer care; partly because many ISPs still think (probably wrongly, the Prodigy years are over) that taking any active steps may lead to them being held legally liable to the customer or for bad content. The bad effects meanwhile are felt by (a) society and (b) sometimes though not always, the customer: so misaligned incentives all round. Notwithstanding this, we heard heartening tales of newly launched voluntary initiatives in Germany and Australia for local ISP industry to take part in isolation and decontamination – so hurrah for that, and let us hope the OECD takes this on board as an important if not “traditional” part of the intermediary liability issue.

(This was where the Bruce Schneier quote on user education came in – and I have to say I absolutely agree. If you want a safer Internet for all – a societal aggregate good of security - you do not leave complex choices to be made by domestic users, who not only don’t understand either the risks or the options, but will never be interested enough, or continually educated enough, to do so. But this is not the same as when you talk about privacy; which is primarily an individual not a social good, and where society views the individual making an informed choice as a key element of their autonomy as a subject of human rights. But talking about consent to giving up personal data on SNSs took us into the world of age verification for kids and its impact on privacy, an even nastier can of worms, and no-one’s going to convince me you can get kids to use anonymous digital signatures when it’s hard enough to persuade lawyers to do this).

In short, a day with so much to chew on, my jaw ached by the end. Very sorry I had to miss the last two sessions: if anyone reading has notes on any preliminary conclusions reached, I’d be pleased to see them. Thanks to Karine Perset of the OECD especially for organising the day. Meanwhile I hope myself to stay involved both with this OECD work, and the revision of the ECD; as I often say, watch this space.

The European Digital Agenda

Pangloss has finished her marking so things may now get back to some semblance of normal:)

It's a hard time, as ever, for the hardworking EU Internet lawyer to keep on top of developments. With the proposal for reform of the DPD due for the end of 2010 (which I have been very pleased to play a small part in lately as an international expert on the Impact report) and the moves towards ACTA have been hogging the headlines, less attention has been paid to the EU's new Digital Agenda programme: but on a quick look it is chock full of goodies. Pangloss's interest fell particularly on the Trust and Security section which promises:

• in 2010 measures aiming at a reinforced and high level Network and Information Security Policy, including legislative initiatives such as a modernised European Network and Information Security Agency (ENISA), and measures allowing faster reactions in the event of cyber attacks, including a CERT for the EU institutions;
• measures, including legislative initiatives, to combat cyberattacks against information systems by 2010, and related rules on jurisdiction in cyberspace at European and international levels by 2013;
• Establish a European cybercrime platform by 2012;
• Examine the feasibility by 2011 to create a European cybercrime centre;
• Work with global stakeholders notably to strengthen global risk management in the digital and in the physical sphere and conduct internationally coordinated targeted actions against computer-based crime and securityattacks;
• Support EU-wide cyber-security preparedness exercises,from 2010;
• As part of the modernisation of the EU personal data protection regulatory framework to make it more coherent and legally certain, explore the extension of security breach notification provisions;
• Give guidance by 2011 for the implementation of new Telecoms Framework with regard to the protection of individuals' privacy and personal data;
• Support reporting points for illegal content online (hotlines) and awareness campaigns on online safety for children run at national level and enhance pan-European cooperation and sharing of best practice in this field;
• Foster multi-stakeholder dialogue and self-regulation of European and global service providers (e.g. social networking platforms, mobile communications providers), especially as regards use of their services by minors.

More than these named action items though, what is heartening is that after the usual litany of threats to the information society, of crime, spam, child protection issues, fraud and even cyber attacks, comes this:

The right to privacy and to the protection of personal data are fundamental rights in the EU which must be – also online - effectively enforced using the widest range of means: from the wide application of the principle of "Privacy by Design" in the relevant ICT technologies, to dissuasive sanctions wherever necessary.

It is good to see privacy given the same attention as security in a document of thus kind, and it's something I'll be reporting to the the CCDCOE Conference on Cyber Conflict in Tallinn next week when I speak of what law can and can't (or shouldn't) do in the fight against cyber attacks in Europe.

If you want to have your say in the Digital Agenda programme by the way, go here: the form appears to be open to all.

My Inugural, encore

For those who wish, the audio recording plus slides of "Anti Social Networking" are now available.

Normal service will resume when the exam marking season is over :-)

ps I hope to sneak in an assessment of the new draft Ofcom Code on the DEA.

Apres la Deluge: Privacy, DP and the New Politics

Wow, I've been gone a long time haven't I? There was quite a lot of Real Life to catch up on after the DEB/DEA, y'know :-) Also an election, and some real everyday work to do!

Breaking my silence however, I've just blogged over at the ORG-blog on Welcome to the Former Big Brother House - considering the new programme of rolling back the surveillance state and bolstering civil liberties in the Lib/Con coalition document; and wondering what more concessions to better privacy we might get in the ongoing process of reforming the Data Protection Directive, where a first draft proposal is expected by end 2010. Pangloss is involved in one part of the process (the impacy assessment, as an external expert) and so far is feeling cautiously hopeful about it.

Also on upcoming events:

THIS! Friday May 21st is my inaugural lecture, free for all comers:

Anti-Social Networking

This lecture will look at the exponential growth of social networking sites (SNSs) eg Facebook, Twitter, over the last few years and ask what the social and legal impacts have been. The first half will cover the well trodden litany of threats and risks associated with SNSs eg privacy impacts, inadvertent data disclosure, targeted advertising, fraud, malware and spam, child protection etc, and ask what progress is being made in these areas, with particular emphasis on privacy. The second half however will turn to the bright side and ask, especially in the wake of the Digital Economy Bill/Act debacle, if SNSs present an opportunity to move from an outmoded and geography-limited 19th century version of representational democracy, towards a new electronic agora, which might in particular re-attract the young towards political participation.

St George's Church, Mappin Street, Sheffield
at 5pm, 21st May 2010. Reception after at ICOSS building adjacent. Email: g.hague@sheffield.ac.uk for info.

June 1: Arcadia seminar at the Cambridge Univerity Library, 6pm, Old Combination Room (OCR) at Wolfson College.

Death 2.0: What Becomes of Digital Assets after Death?

Death seems to be discussed in web 2.0 circles only when it is tragic (eg internet suicide clusters) or in some other newsworthy (eg the Lori Drew online harassment case ). Yet if Facebook alone claim some 400 million subscribers, then it stands to reason that some of them will be reaching their final end as I write in quite ordinary ways. Yet the law is vague in the extreme (and varies from jurisdiction to jurisdiction) on who would "own" a user's Facebook profile in that sad event; and more significantly, what rights either the deceased or the heirs might have against Facebook to demand that the profile be deleted, maintained as a going concern , exported or preserved ("memorialised"). Nor is this problem confined to Facebook. Digital assets will be increasingly important as items in succession - and as cultural heritage - as the web 2.0 generation ages ; and might include not only profiles on social networking sites, but also reputations and identities on money-making sites like eBay, photos on sites like Flickr and even user preferences on sites like Last.fm. Yet so far little or no attention has been paid to the legal nature and transmission of digital assets, except within the limited (if glamorous) domain of virtual property in virtual worlds and MMORPGs. Neither are all digital assets likely to fall into categories of recognisable intellectual property (IP) protection. This paper seeks to investigate this domain, having regard to the interests of user, relatives, platform and especially, the public interest in preservation of online cultural heritage.

16 June, OECD Workshop on Internet intermediaries, Paris; closed meeting.

17 -18 June, CCD COE Conference on Cyber Conflict 2010, Tallinn, Estonia (speaking on state attribution and domestic legsl remedies for preventing cyberattacks, with Russell Buchan , Sheffield University)

28-29 June GikII V, Edinburgh, final programme up very shortly.

Hitler's response to the EC proposing mandatory ISP blocking of porn sites

Ok, actually no Hitler at all, but a usefully cynical video:-)

Hitler reacts to the Hitler parodies being removed from YouTube

Yes I know this is last week's news, but I'm pleasantly surprised to find this hilarious commentary on take down vs fair use is still available (though for how much longer?) (And given all the swearing, can I get away with showing it to the students??)



Of course, You Tube appears to have responded to Hitler's plaint: by providing a "put back, it's fair use honest guv" button. However note this only applies where take down has been automated by You Tube's Content ID system: so it wouldn't apply to the video above.. However, it's a step in the right direction (even if it has, say YT, been available since 2007, only no one noticed! ) so hurrah, say we all (even though I like cat videos too..)

There is of course currently no copyright exemption for parody in the UK (see current Gowers consultation, paras 16ff, indicating no prospect of change on this) - so if a video is streamed/watched in the UK, having been uploaded in the US, taken down via Content ID (or via overt notification), but then put back for fair use in US - quid iuris? or more accurately, what of You Tube and their claim to be exempt from liability under art 14 of the E Commerce Directive? have they received "notice"?? arguably yes, via their automated system or otherwise and yet they are still publishing a copyright infringing item. Can Google UK then block the video even though it remains available on the US site? and can the automation software deal with this? Google has, I'm sure, thought of this. Individual copyrights being inherently territorial, we are in deep waters for Pangloss. Comments welcome!

Law and sausages: How Not to Legislate for the Digital Economy

The audio of this talk at Sheffield Cafe Scientitfique (an hour long, sorry!) is now here for those who wish at http://www.radio4all.net/index.php/program/42040&63509 along with the powerpoint slides.

The slides are also available on Slideshare.

Deb Act Talk April 2010

View more presentations from lilianedwards.

If it's tomorrow it must be Embra..

Another talk by me on the #debill, plus, more excitingly, Simon Frith!!

21 April 2010: Digital Economy Bill: Professors Simon Frith and Lilian Edwards (Universities of Edinburgh and Sheffield)

Speakers will address issues of copyright, plus “The Good, the Bad and the Ugly”, including abnegation of due process, “three strikes and you are out”, site blocking and EU issues, net censorship and so on in what is anticipated to be a very lively discussion. Lilian Edwards, currently speaking on the Bill at events across the UK, is also known for her blog Pangloss. Simon Frith is known for his ESRC Research Programme on Media Economics and Media Culture. . Iain Mitchell QC FRSA, who, it is anticipated may well enliven the debate from the floor. is Chairman of the Scottish Society for Computers and Law and has been Joint Editor of the E-Law Review. Join us and contribute to the debate! (£10 a head I'm afraid).

From ORG-list, useful update on Viviane Reding's progress on data protection directive reform . First stage of consulting is over and response being considered.


"Data Protection" [I have italicised most interesting parts]

On privacy and data protection I have initiated the process leading up
to the reform and modernisation of the 1995 Directive. In line with
the legal prerequisite introduced by Lisbon we have now a specific
provision (Article 16) to develop a comprehensive and coherent
framework for the protection of personal data. The new legal framework
should address new challenges of the information age, such as
globalisation, development of information technologies, the internet,
online social networking, e-commerce, cloud computing, video
surveillance, behavioural advertising, data security breaches, etc.

The Commission is currently analysing the over 160 responses to the
public consultation. I will present a legislative proposal reforming
the Directive before the end of the year and I will consider
establishing the principle of "privacy by design."

This is by no means an exhaustive list of the novelties I intend to
propose, but one thing is clear: reinforcing the confidence of both
citizens and businesses in data systems will lead to better protection
for individuals, as well as to trust and confidence in new services
and products. This will in turn have a positive impact on the
economy."

Life is very strange lately..

.. Pangloss, still detoxing from a week on Twtter, is somewhat flattered to find herself the actual centre of an op piece!! Even one by notorious troll Andrew Orlowski!

Orlowski reports that the BBC has received a complant about the impartiality of a (4 minute, on the hoof, non pre recorded) interview I gave on Radio 2 to Richard Madeley of Judy fame (this has made my mother very happy :-) the day that the Digital Economy Bill cleared House of Commons.

Having looked at his story I'm fairly amazed that any editor let this pass; not because it has scandalous revelations but because absolutely nothng said there is remotely controversial let alone false or deceptive. I'll reproduce in full so we don't up his hit count:)

"The BBC tells us it is to investigate how Richard Madeley told the nation that the Government was going to whisk away his computer last week.

The segment on Monday's Simon Mayo drive time heard Madeley, who is filling in for Mayo, say: "What a pain! I only got computer literate three years ago, just as I get wised up to it, they take it away."

We don't yet know how many car accidents were caused by the news of mass confiscations.

Madeley was following a segment of the show about the Digital Economy Bill (now Act). The sole 'expert' was Professor Lilian Edwards. Edwards was simply billed as "a Professor of Law" at Sheffield University.

Edwards made some curious statements about "disconnections" (not mentioned in the Act) and how libraries might have to put passwords on their PCs. Libraries already operate a pretty strict lock-down regime: requiring password authentication, firewalls, and prohibiting the installation of Third Party software. But she insisted: "Even if you do password protect it, policing it may get very expensive."

The impartial Lilian Edwards

Even this didn't raise any suspicions amongst the show's presenters. But then, why would it - Edwards was an unbiased expert.

Asked why some Twitterers were upset about the Bill, Edwards replied: "I've been thinking about this. It's a hard thing to say on a music station, but the House of Commons thinks most important thing here is the music industry - which is of course important - but these people think the most important thing is the future of the internet, and I tend to agree with them."

The problem for Radio 2 is that the show breached the Corporations' editorial guidelines. Edwards is a member of the Open Rights Group's Advisory Council, and she relentlessly blogs about the coming armageddon - not always accurately - here. As an ORG advisor her duties include to "Fundraise and/or make fundraising introductions" and "Be available for media contact if required".

By failing to declare Edwards' partisan affiliations, the show fell foul of the guideline, which states:

...we should not automatically assume that academics and journalists from other organisations are impartial and make it clear to our audience when contributors are associated with a particular viewpoint

"We are aware of the issues you have raised with us and are currently looking into the matter," a spokesperson told us on Friday.

It's amazing what the title 'Professor' can do. If you can find the right production staff, you can get away with anything. ®"

A few points for legal reasons (if already bored you are quite welcome to stop reading now)

(1) Orlowski has elided the fact that the discussion about the impact on wi fi of the DEB had included small businesses, especally cafes offering free public wi fi, as well as libraries. In all cases, however, I had said , correctly as far as I know, the language of the bill clearly ascribed liability to those who "allow" their Internet connection to be used for infringing acts; then said that of course there were options to minimise risk such as password protection. Then I tried to summarise (in a very short intervew) what is well known: namely that password protection does not remove liability, merely excludes those not allocated passwords and allows tracking of those truely culpable - but this latter would stll requre detailed marrying up of log ins and time stamps wth reports of infringing downloading ("Copyright Infringement Reports in the language of the DEB) from rightsholders.

This is a technical process many small businesses would not be equipped to perform, so they might (as big companies like MacDonalds etc regularly do) feel required to bring in help, from companies like The Cloud who provide wi f hotspots. Unfortunately that would be prohibitively expensive for many cafes etc. leading to a general reduction in the amount of free public wi fi available (password protected or otherwise).

(2) I had nothing to do wth Madeley's comments about them coming to take away hs computer - was already off air by then (or I mght have corrected him!). the fact I've heard nothng about this "BBC investigation" until this piece, makes me suspect (if it even exists - ref please Mr Orlowski) that it is restricted to what Madeley said, not what I did.

(3) I am a bit perplexed at what the inverted comments round "a Professor of Law" and "expert" indicate. I do hold that post. For what it is worth, I prevously held that title at Southampton. These are and were both respected Russell Group Universities; Soton was a 5* law department. Although I do not so self style, yes, within academe I think I am regarded as an expert on the Digital Economy Bll. I also (and this is hardly a surprise or a secret) am on the ORG Advisory Councl (as are several other academics). This fact is on an open web site available via Google (and often mentioned on this blog). They do not pay me or employ me (if only! :-) It would be dfficult to find an academic who was an expert on any subject and of any standng who did not advise external bodies or sit on Advisory Boards - this is part the job of being a senior academic.

(4) Though not really my fight, I note the BBC guidelines and quote the following back :
"we strive to reflect a wide range of opinion and explore a range and conflict of views so that no significant strand of thought is knowingly unreflected or under represented."

Since the BPI's views on the DEB were widely reported in the press and media at the time, while opposing views were largely only reported in the IT trade press and the Guardian tech section at the time, it seems to me the Rado 2 show was gallantly doing its bit to redress the balance as per BBC rules. In any case nothing said above is anything other than a reasonable interpretaton of the legal rules along with a final personal sentiment - which I absolutely stand by.

(5) I suspect the final line may in its implications well be libellous. I was asked to speak on the show and have absolutely no idea who the producers were nor did I have any prior relatonship with them. I have no intention of gettng involved in libel suits under current dreadful UK libel law, but would warn Mr Orlowski (and his publishers) to be careful when messing with someone who is not only an expert on the Digital Economy Bll but started off as an early expert in Internet libel law :-)

(6) Finally is all this alleging of bias one way only? Are we entitled to know if Orlowski is beng paid off by the BPI or other rightsholder groups for his relentlessly dull would-be-scare-stories about ORG? I wonder what the Press Complaints Commission thinks. Ah, reciprocity, doncha love it :->