A new study commissioned by the UK Intellectual Property Office (IPO) examines whether the criminal sanctions for copyright infringement available under the Copyright, Designs and Patents Act 1988 (CDPA 1988) are currently proportionate and correct, or whether they should be amended.
While the Digital Economy Act 2010 increased financial penalties up to a maximum of £50,000, in broad terms the main ‘offline’ copyright offenses carry sentences of up to 10 years in jail while those carried out online carry a maximum of ‘just’ two.
In 2014, Mike Weatherley MP, then IP advisor to the Prime Minister, said that this disparity “sends all the wrong messages”, a position that was supported by many major rightsholders. The current report examines data from 2006 to 2013 alongside stakeholder submissions, both for and against a change in the law.
“Many industry bodies argue that higher penalties are necessary and
desirable and that there is no justification for treating physical and online crime differently. Other stakeholders suggest that these offenses are in fact different, and raise concerns about a possible ‘chilling effect’ on innovation,” the report reads.One key finding is that court data from 2006-2013 reveals that prosecutions under the CDPA have actually been going down and that online offenses actually constitute “a small, and apparently decreasing, fraction of copyright prosecution activity as a whole.” In fact, the Crown Prosecution Service didn’t bring a single case under the online provisions of the CDPA 1988 during the period examined.
“While there have been prosecutions during recent years, these have either used alternative legislation (such as common law conspiracy to defraud) or been directed at clarifying the civil law position in the European Court,” the report notes.
“It is not clear that alternative legislation provides a satisfactory solution. By definition it does nothing to improve case law or understanding of the copyright issues.”
This lack of case law is seen as problematic by the Federation Against Copyright Theft. In recent years FACT has stepped away from public prosecutions under copyright law in order to pursue private prosecutions under other legislation such as the Fraud Act.
Month: March 2015
The Cartoonist Has No Idea How Net Neutrality Works
Earlier this week, the A Good Cartoon tumblr first posted a bunch of ridiculous and misleadingpolitical cartoons about net neutrality that showed zero understanding of net neutrality. And then the person behind the site remade many of those cartoons, but replaced the words in them with “the cartoonist has no idea how net neutrality works!” For reasons unknown, the original Tumblr post that had all of them has been taken down, but many of the images are still viewable via John Hodgman’s blog, and they’re worth checking out. Here are just a few with some additional commentary (because how can I not provide some commentary…)
Right, so actually, the rules are designed to do the exact opposite of the image above. They’re designed to make sure that the big broadband access players can’t delay things and have to deliver your content faster. The idea that the FCC will be stepping between the content and people who want to see it is completely false.
I don’t even know what the original cartoonist was trying to say here, because it doesn’t even make the slightest bit of sense. The text in the original cartoon was “time’s up, next!” which makes even less sense than the first cartoon. The whole point of the new rules is to prevent broadband providers from putting these types of controls on your internet usage.
Sensing a pattern yet? All of these cartoons are pretending that the new rules insert the FCC between you and the internet. And all of them pretend that the FCC is going to do what the broadband providers themselves have said they want to do — which these rules are designed to prevent. So, yes, the cartoonist has no idea how net neutrality works.
At least this one doesn’t go for the easy (but wrong) joke pretending that the FCC is now watching what you do online. Instead, it’s claiming that there’s no reason for the FCC to “fix” anything because it’s “not broken.” But that’s only true if you ignore the attempts to break neutrality along with how the broadband providers purposely made your Netflix slow in order to get the company to pay its tolls. And, of course, it also means having to ignore what the broadband providers have been saying themselves for a decade now about how they want to double and triple charge internet services to reach end users. If you pretend all of that isn’t true, then maybe the original cartoon makes sense. But, all of it is true, so the cartoonist has no idea how net neutrality works.
Spanish Court Limits Scope Of EU’s Right To Be Forgotten
EU’s ‘right to be forgotten’ is still relatively new — the original ruling was made less than a year ago. Since then, the EU courts and companies have been trying to work out what it means in practice, which has led to some broadening of its reach. But an interesting court ruling in Spain seems to limit its scope. It concerns the following case, reported here by Stanford’s Center for Internet and Society:
The claimant was a Spanish citizen who found that when typing his name on Google Search, the results included a link to a blog with information about a crime he had committed many years ago. While the official criminal records had already been cancelled, the information was thus still findable on the internet.
The Spanish Data Protection Authority (DPA) made two rulings. One was that Google should remove the information from its search engine, and the other was that Google should remove personally identifiable information from a blog hosted on its Blogger platform. When these decisions were reviewed by Spain’s National High Court, it confirmed the first ruling, and clarified that Google needed to remove the link to the criminal records information from its search results. However, it did not confirm the second ruling:
The National High Court reversed that and held that the responsible for the processing is not Google but the blog owner. It further held that the DPA cannot order Google to remove the content within a procedure for the protection of the data subject’s right to erasure and to object.
This is significant, because it says the “controller of the processing” — a key concept in EU data protection law — is the blog owner, not Google, and so the latter cannot be forced to take down a blog post. The Center for Internet and Society post notes:
Arguably, under the rationale that the platform is not the controller of the processing, other user generated content sites such as YouTube or social networking sites might also fall outside the scope of the right to be forgotten.
Well, not entirely outside the scope: presumably, search engines could still be required to remove links to user-generated content, but it would be the creator of that content that would be asked to remove it entirely, not the hosting company. Clearly, further cases will be needed to clarify how exactly this will work in Spain, and whether it applies anywhere else.
FCC Approval Of Zero Rating Shows Companies Can Still Violate Neutrality Under New Rules, They Just Have To Be More Clever About It
We’ve discussed more than a few times the awful precedent set by AT&T’s Sponsored Data effort, which involves companies paying AT&T to have their service be exempt from the company’s already arbitrary usage caps. While AT&T pitches this as a wonderful boon to consumers akin to 1-800 numbers and free shipping, as VC Fred Wilson perfectly illustrated last year, it tilts the entire wireless playing field toward companies with deeper pockets that can afford to pay AT&T’s rates for cap exemption.
So how will the FCC’s new net neutrality rules impact AT&T’s plans? There’s every indication it won’t. The rules are still a few years and a few legal challenges away from becoming tangible, and in the interim, the FCC is telling companies that none of the zero rated efforts currently in play should be impacted. Meanwhile, the Netherlands, Slovenia, Norway, Chile and now Canada all realize the threat posed by zero rated apps and have passed net neutrality rules that outlaw zero rating. The FCC, in contrast, has consistently implied it sees zero rating as “creative” pricing.
That’s given AT&T the justifiable confidence to sally forth with its dangerous precedent. After all, injecting a gatekeeper like AT&T (with a generation of documented anti-competitive abuses under its belt) right into the middle of the wireless app ecosystem won’t hurt anyone, and has nothing whatsoever to do with net neutrality.
Olympics Committee Forces Oregon Restaurant To Change Its Name
In just six years, Portland, Oregon’s Olympic Provisions has gone from a small restaurant with an attached charcuterie facility to a major brand complete with Portlandia immortality and an upcoming cookbook. And now it has to change its name, thanks to a cease-and-desist notice from the International Olympic Committee, the organization that coordinates the Olympic Games. OP co-founder/meat-maker Elias Cairo says OP’s two restaurants (one of which has been a longtime member of the Eater Portland 38) and meat department will soon re-brand into Olympia Provisions, bypassing the trademark dispute by altering one letter.
The former Olympic Provisions says it was caught up in the IOC’s periodic “random sweeps” — which sounds an awful lot like the sort of behavior one district court memorably called out when dealing with a trademark bully.
The owner of a mark is not required to constantly monitor every nook and cranny of the entire nation and to fire both barrels of his shotgun instantly upon spotting a possible infringer.
But that is very much the way of the IOC, and it monitors every nook and cranny of the entire world with its fingers on the trigger. The cease-and-desist it sent to the former Olympic Provisions was so overwrought that the owners first thought it was a joke. But a discussion with its lawyers made it clear it wasn’t. The IOC’s tactics would be laughable if only they weren’t so often successful and damaging to the businesses on the receiving end.
“We start looking around at everything we’ve branded, from packaging to restaurants to delivery trucks,” Cairo says of the costs to change OP’s name. “To put a dollar figure on it would be impossible.”
The IOC doesn’t care about the source of the business names it finds infringing. It will make exceptions for businesses located around geographic features that already carry the name “Olympic,” pretty much limiting US use of the term to the Washington area. And the local arm of the IOC — the United States Olympic Committee — will step in if the marketed goods bearing an Olympic brand are sold outside of that region.
The White House Has Gone Full Doublespeak on Fast Track and the TPP
Sen. Ron Wyden and Sen. Orrin Hatch are now in a stand-off over a bill that would put secretive trade deals like the Trans-Pacific Partnership (TPP) agreement on the Fast Track to passage through Congress. The White House meanwhile, has intensified their propaganda campaign, going so far as to mislead the public about how trade deals—like the TPP and its counterpart, the Transatlantic Trade and Investment Partnership (TTIP)—will effect the Internet and users’ rights. They are creating videos, writing several blog posts, and then this week, even sent out a letter from an “online small business owner” to everyone on the White House’s massive email list, to further misinform the public about Fast Track.
In a blog post published this week, the White House flat out uses doublespeak to tout the benefits of the TPP, even going so far as to claim that without these new trade agreements, “there would be no rules protecting American invention, artistic creativity, and research”. That is pure bogus, much like the other lies the White House has been recently saying about its trade policies. Let’s look at the four main myths they have been saying to sell lawmakers and the public on Fast Track for the TPP.Myth #1: TPP Is Good for the Internet
First, there are the claims that this agreement will create “stronger protections of a free and open Internet”. As we know from previous leaks of the TPP’s Intellectual Property chapter, the complete opposite is true. Most of all, the TPP’s ISP liability provisions could create greater incentives for Internet and content providers to block and filter content, or even monitor their users in the name of copyright enforcement. What they believe are efforts toward protecting the future of the Internet are provisions they’re advocating for in this and other secret agreements on the “free flow of information”. In short, these are policies aimed at subverting data localization laws.
Such an obligation could be a good or a bad thing, depending on what kind of impact it could have on national censorship, or consumer protections for personal data. It’s a complicated issue without an easy solution—which is exactly why this should not be decided through secretive trade negotiations. These “free flow of information” rules have likely been lobbied for by major tech companies, which do not want laws to restrict them on how they deal with users’ data. It is dishonest to say that what these tech companies can do with people’s data is good for all users and the Internet at large.
Give biometrics the FINGER: Horror tales from the ENCRYPT
The FREAK (Factoring RSA Export Keys) flaw allows bad men to exploit those secret intimate moments shared between certain web browsers and HTTPS websites. Just when your copy of Safari begins rubbing the website’s knee and mumbling “you know you want it” in its ear, FREAK allows the hooligan element of the online world to tip-toe unnoticed into the room. By the time Safari has finished sweet-talking the website and is fumbling with its zip before establishing a “safe connection”, the rascals have stolen its johnnies.
The weakness in the connection security at this stage was the result of a governmental directive some 20 years ago that good encryption should not be exported to that dark and dangerous place outside the US known as “the rest of the world” (AKA “terrorists”).
In many cases, security flaws are loopholes left behind due to the complexity of the digital antagonism between trying to enable a thing while preventing that thing. FREAK, on the other hand, was created as a deliberate act of self-sabotage, determined by the Powers That Be in full knowledge of the potential consequences.
Blame politicians for their lack of long-term vision if you like, but this is hardly the point. Politicians come and go and fill their pockets and die: this is what we expect politicians to do and we vote them into office so that they can do it. If there’s any lack of forward-thinking involved, it starts at the ballot box.
But in this instance, lots of people at the time said that relaxing encryption was A Stupid Idea. So the politicians and their advisers knew it was daft and still went ahead.
Consider the Y2K bug or the 2038 bug or whatever. The very fact that these things have names suggests that someone somewhere had the foresight to think about them in advance. They began as oversights and go on to be exploited, and then go on to be fixed.
It strikes me that the IT industry enjoys watching security go titsup time and time again, simply so that it can fix it.
Despite what we already know, not least what we have learnt this FREAK week, someone somewhere is probably still advising the British prime minister that message encryption was invented by Osama bin Laden and should be zero-dark-thirtied at the first opportunity. National security, he is being advised, can only be achieved by criminalising er… security. Duh.
I blame these same advisors for the reckless re-emergence of biometric checks as a form of authentication. Surely it’s obvious to everyone that the fingerprint login on iPhones 6 and iPad Air devices is just a bit of fun, not a serious stab at effective security. Yet RBS and NatWest banks are introducing fingerprint access for accounts via mobile devices, and the scary bit is that they’re not laughing.
Biometrics are bollocks. Some El Reg readers may recollect Steve Jobs years ago demonstrating VoicePrint verification in Mac OS 9: “My name is my password”. It was just a little joke, though: a laugh, a trick to delight the kids. It certainly wasn’t secure.
By the way, if you do remember this short-lived feature, well done: most long-time Mac users have already forgotten this turd of biometric nonsense.
In sci-fi action films, when a retina scan or a fingerprint is required to gain access to the high-security lab of an evil genius, the hero plucks out or hacks off that item from an unsuspecting minion in a lab coat and simply waves the relevant bloodied body part in front of the clichéd scanner thingy. For voice-activation, I wouldn’t be surprised to see a cinematic hero trying to blow though the vocal cords he’d ripped out of the chief scientist’s neck.
Of course, for voice activation, all you’d need to do is to hire a voice actor for your crack team, or invite that bloke down the pub who can do impersonations. Just imagine if James Earl Jones had voice activation on his bank account: you could break into it using a Darth Vader voice-changer from a toy shop.
It turns out the Village People recorded a punk song in 1981
I came across this punk rock masterpiece on one of my very favorite blogs, Dangerous Minds.
Now, look, I’m going to warn you: it’s the longest 2:27 of your life, and the video is sort of the ancient progenitor to a looping .gif, likely due to budget constraints, and the possibility that the band involved wasn’t particularly into recording a punk song because the band was THE VILLAGE PEOPLE.
Yes, those Village People.
BEHOLD:
Mississippi Attorney General Jim Hood Demands $2,100 To Reveal The Emails He’s Had With The MPAA
As you may know, we’ve been covering the story of Mississippi Attorney General Jim Hood and his campaign against Google. A few years ago, we noted how bizarre it was that Hood and other state Attorneys General seemed to be blaming Google for all kinds of bad things online. It seemed to show a fundamental lack of understanding about how the internet (and the law!) worked. Of course, things became somewhat more “understandable” when emails leaked in the Sony Hack revealed that the MPAA had an entire “Project Goliath” designed around attacking Google, and the centerpiece of it was funding Jim Hood’s investigation into Google, including handling most of the lawyering, writing up Hood’s letters to Google and even the “civil investigative demand” (CID — basically a subpoena) that he could send.
Hood lashed out angrily about all of this, even as the NY Times revealed that the metadata on the letter he sent Google showed that it was really written by top MPAA lawyers. Hood continued to angrily lash out, demonstrating how little he seemed to understand about the internet. He made claims that were simply untrue — including pretending that Google would take users to Silk Road, the dark market hidden site that could never be found via a Google search. Hood also dared reporters to find any evidence of funding from Hollywood, and it didn’t take us long to find direct campaign contributions to his PAC from the MPAA and others.
Given all of this, we filed a Mississippi Public Records request with his office, seeking his email communications with the MPAA, its top lawyers and with the Digital Citizens Alliance, an MPAA front-group that has released highly questionable studies on “piracy” and just so happened to have hired Hood’s close friend Mike Moore to lobby Hood in Mississippi. Moore was the Mississippi Attorney General before Hood and helped Hood get into politics.
We’ve had to go back and forth with Hood’s office a few times. First, his office noted that Google had actually filed a similar request, and wanted to know if we were working for Google in making the request. We had no idea Google made such a request and certainly were not working on behalf of Google in making our request — but Hood’s office helpfully forwarded us Google’s request, which was actually a hell of a lot more detailed and comprehensive than our own. This actually is helpful in pointing to some other areas of interest to explore.
However, after some more back and forth, Hood’s office first said that it would refuse to share the emails between Hood and the MPAA’s lawyers as they “constitute attorney-client communications” or “attorney work product” and that finding the rest of the emails would… require an upfront payment of $2,103.10
Albuquerque Police Dept. ‘Complies’ With Records Request By Releasing Password-Protected Videos… But Not The Password
If there’s one thing the Albuquerque Police Department (APD) does well — or at least, frequently –it’s shoot and kill Albuquerque residents. Its officers’ obvious preference for excessive and/or deadly force attracted the notice of the DOJ, which issued a (mostly) scathing review that was tempered somewhat by the DOJ’s appreciation of the inherent risks of the job, as well as all the hard work the city’s officers do when not shooting Albuquerque residents.
On May 3rd of last year, Gail Martin called the APD to help her when her husband, Armand Martin, threatened her and her two children with a gun. This turned into a lengthy standoff which finally ended when APD officers shot Martin as he ran from the house. According to the police, Martin was holding two guns at the time.
The APD released a number of records, including footage captured before and after the shooting, but nothing containing the shooting itself. Local law firm Kennedy Kennedy & Ives, representing Gail Martin for a possible civil rights lawsuit, requested a copy of police recordings containing the actual shooting under New Mexico’s Inspection of Public Records Act (IPRA).
Over a month later, the APD responded. Sort of.
The Kennedy Kennedy & Ives Law Practice in the lawsuit said the department in mid-August released six CDs containing records on the May 3 shooting death of Armand Martin, a 50-year-old Air Force veteran, in response to the firm’s records request. But three of the CDs were password protected.
Now, this could have been a simple oversight, but if so, the problem would be solved already. Instead, it looks as though the APD is looking to keep the law firm from viewing the videos it requested.
The firm has tried to get the password from APD records, evidence and violent crimes personnel to no avail, according to the complaint…
Now the APD’s being sued. The firm is seeking not only access to the password-protected videos, but also damages and legal fees. According to the firm, access to these videos is crucial to determining whether or not Gail Martin has a legitimate civil rights case. Without them, the firm is no better positioned to make this call than the general public, which has only seen the lead-in and aftermath of the shooting.
This isn’t the APD’s only legal battle related to its IPRA non-compliance. Late last year, KRQE of Albuquerque sued it for “serial violations” of the law. That’s in addition to the one it filed over a 2012 incident, in which the PD stalled on its response to a journalist’s public records request before releasing the requested footage at a press conference, basically stripping the reporter of her potential “scoop.”
It’s common knowledge that law enforcement agencies are less than helpful when it comes to releasing documentation of alleged wrongdoing. It’s the one part they can’t completely seal off when circling the wagons. This leads to weeks, months… even years of obfuscation. And this often leads to lawsuits, paid for by the same public it doesn’t want to hold it accountable.