Leveson Collateral Damage

Posted on March 21, 2013 by Simon Phipps

Now I am clearer on the details of the press hacking regulation that’s being railroaded through the UK Parliament, I just sent this to my MP.  Feel free to borrow from it.

Dear $MP,

I’m one of your constituents ($postcode), as well as being a pro bono director of Open Rights Group and a writer on digital rights issues.

I am extremely concerned about the way the Leveson response is being railroaded through Parliament. I see all the main decisions have been made without Parliamentary scrutiny and are about to be introduced with a nod & wink in the Crime & Courts Bill discussion in the Lords on Monday (see http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0137/amend/pbc1371803m.pdf). I’m contacting you directly as time is very short for you to act by expressing concern over the lack of due process and the risk of collateral damage.

I’ve discussed this with my colleagues both in my own consulting practice and at ORG. We believe that serious conceptual flaws exist in the language of the amendments, and that unwittingly the Leveson responses – nominally targetting large media corporations – will end up introducing new rules that regulate internet publishing by much smaller entities which were never targetted by Leveson.

As an example, Apple could use these new provisions to chill disclosure of newsworthy product leaks such as http://www.macrumors.com/2011/12/26/2011-biggest-apple-product-leaks/. A company like Monsanto could use them to discourage public criticism of its strategies. Energy companies could use them to threaten and chill coverage of climate change. Perhaps even whalers could use them to silence Greenpeace supporters.

From reading amendment NC29, pretty much any web site with adverts or run by someone with a consulting activity could be construed as “in the course of a business” and many bloggers have guests, co-writers and translations that plausibly qualify as “written by different authors”. It’s entirely feasible that a corporation could threaten litigation under these measures to chill discourse. Amendment NS5 offers no comfort.

These corporate repurposers don’t have to be right, and it doesn’t even need to go to court to have a chilling effect. With such high stakes, most of us would just fold rather than risk such enormous penalties. As drafted, the amendments create new weapons for corporate litigants that worry me and others greatly.

It doesn’t have to be this way, but the whole response is being railroaded by very narrowly-focussed non-experts with no concern for the collateral damage they are doing. The last time I recall this sort of panic – over the Terrorism Act Section 44 which started out as “preventing terrorism” – we ended up with “random stop-and-search powers being exercised by the Met on any motorist they felt like bothering”.

Please can you consider the matter and if you agrees urgently express my concerns? I am available for discussion by phone.

Update: ORG now has an easy form to help you write to both your MP and the party leaders.

Filed under: Censorship | Tagged: | 2 Comments »

Demand A Proper Consultation

Posted on March 20, 2013 by Simon Phipps

The UK’s Home Office continues to push for maximum surveillance powers with minimum accountability in the latest adjustments to the Communications Data Bill. I decided to find out just how much consultation with non-corporates there had been before the Bill was introduced originally.

See the FOI request I placed and the response I received – there were a total of four, and no meetings worth keeping records of the content were held.  Although the Parliamentary Joint Select Committee said consultation with civil society organisations was needed, by all accounts the meetings since then have been worthless too, with just notification and talk rather than true consultation. One small note for any BCS members listening to their claims they represent you; they are not listed in the response.

Open Rights Group now has a form for citizens to ask for a proper consultation to be held. They would welcome both individuals and organisations completing the form to show demand for a proper consultation.

Filed under: Communications Data Bill | Tagged: | 4 Comments »

Python Trademark Safe In Europe

Posted on March 19, 2013 by Simon Phipps

Seems all that community pressure worked. The Python Software Foundation confirmed that the UK hoster that was threatening their name has withdrawn its trademark application. More at InfoWorld.

Filed under: InfoWorld | Comments Off on Python Trademark Safe In Europe

Royal Charter or Star Chamber For Stars?

Posted on March 18, 2013 by Simon Phipps

Alec Muffett points out that the new Royal Charter being rushed through the UK Parliament includes some drafting that appears to drag blogs, Twitter and other social media into the penalty net.  This is an extremely worrying development that needs rapid response from the meshed society of citizen creator-consumers (that almost certainly means you).

Unpacking all the nested definitions in the draft Charter, a person who:

  • publishes in the United Kingdom or for an audience mainly located in the United Kingdom
  • news or information about current affairs or
  • opinion about matters related to the news or current affairs or
  • gossip about celebrities, other public figures or other persons in the news, on
  • a website containing news-related material (whether or not related to a newspaper or magazine)

falls within the remit of this Charter as a “relevant publisher”. This is the only clear scope I can find in the whole proposed regulation.  Yes, that clearly includes my blog, Twitter, public posts on Facebook and pretty much any other social media channel. I do not believe this is a drafting error; I believe it’s an intentional gag on whistleblowers and individual attention, on anyone who doesn’t have a boss someone powerful can call to have them shut up.

Of course, the proposals have no regard for this meshed world of creator-consumers. All the thinking revolves around Big Media, so there’s no representation for me or you in the regulatory body it creates, nor accommodation for the realities of the meshed society we inhabit. By including the new meshed world of creator-consumer citizens into this measure intended as a leash for dinosaurs, nothing is achieved in terms of realistic regulation.

But a new, deadly weapon is created to allow the rich to chill and punish any of those creator-consumers who dare to challenge them. When an established publication publishes a diatribe, they provide an umbrella for its author to shelter them from the new threats made available through this new regulatory mechanism. They are already pretty good at shielding authors; as long as they have jumped through the new hoops and behave reasonably, there’s not much more threat here than before.

But when the same writer tweets an opinion, or when I post my opinion about it on my personal blog, this new regulation allows the well-resourced members of the media elite to subject us to weapons tuned for deterring the Murdochs of this world. The penalties involved are out of all proportion to any harm as well as way beyond your and my means even to buy insurance, let alone to pay.

Just the threat that we might get dragged into this Star Chamber for the stars would be enough to chill most of us. Until they were caught public figures, politicians and police were quite happy with the old arrangement, under which they and journalists committed illegal acts that benefited both sides. I’m sure those same people will be pleased to see a new arrangement that can be used to shut us all up, in prison if not in word.

You say such an abuse could never happen?  Tell Paul Chambers. Tell the security researcher imprisoned in the USA for longer than teenage rapists under a similarly “misdrafted” regulation. Tell Matthew Keys. Tell the family of Aaron Swartz, hounded to his death by over-empowered investigators. Legislation aimed at powerful individuals and corporations kills people like us when it’s misapplied.

Cory Doctorow puts it this way:

In a nutshell, then: if you press a button labelled “publish” or “submit” or “tweet” while in the UK, these rules as written will treat you as a newspaper proprietor, and make you vulnerable to an arbitration procedure where the complainer pays nothing, but you have to pay to defend yourself, and that will potentially have the power to fine you, force you to censor your posts, and force you to print “corrections” and “apologies” in a manner that the regulator will get to specify.

The problem is not regulation; it’s that the politicians appear to have bought the acquiescence of the media industry to this limited restraint on their abuses by providing them with a new way to prevent inconvenient independent expression from further eroding their power. As Nick Cohen wrote in The Observer, “Did you not notice that Leveson hurt no one in power?”  The big story here is not erosion of press freedom; it is rather the chilling of the voice of the citizen.

(Also published on ComputerWorldUK, where of course it would be protected under the new rules; is that fair?)

Filed under: Censorship | Tagged: , | 6 Comments »

Google, VP8 and Codec Standards

Posted on March 15, 2013 by Simon Phipps

The politics around codecs are complex and the incumbents are prone to deceptive feints, like in 2010 when MPEG-LA claimed that H.264 was available “free” for web uses (but content owners probably still paid multiple fees in the production chain).  So it is perhaps understandable that some people misunderstood Google’s agreement with MPEG-LA and interpreted it as a victory for the patent circus and the end of any claim of freedom for VP8.

In fact, my reading of the available facts suggests Google won. The license with MPEG-LA looks mostly face-saving for the patent pool, and the attacks from the incumbent companies suggest they’re falling back on the next line of defence. The whole situation is an object lesson in why software patents simply must not be tolerated. Read more in InfoWorld.

[En Français]

Filed under: En Français, InfoWorld, Patents, Standards | Comments Off on Google, VP8 and Codec Standards

Speak Up For SHIELD

Posted on March 8, 2013 by Simon Phipps

If you’re a US citizen, your support for the bipartisan SHIELD Act could strike a decisive blow to patent trolls by making them pay costs if they lose patent actions and allowing judges to require a bond for costs from them before a case can proceed. Striking at their ability to build a fighting fund could well be the key to making the “business” they conduct unprofitable and dangerous.

While advocates of patent maximalism claim this also disadvantages small businesses legitimately prosecuting patents against larger foes, my take is small software businesses should be avoiding patents anyway. There are a few counter examples from the world of hardware (Dyson is frequently cited) but they are an expensive weapon; expensive to wield and likely to bring more value to the vultures who will pick over the wreckage of your business than to you yourself.

Read all about it over on InfoWorld.

Filed under: InfoWorld, Patents | Tagged: | Comments Off on Speak Up For SHIELD

Red Hat Picks Up Dropped Java 6

Posted on March 8, 2013 by Simon Phipps

Red Hat put out a press release yesterday that didn’t instantly make sense to me. After a chat with their GM of Middleware, I realised actually they had all done us a favour picking up care of OpenJDK 6 that Oracle had dropped. More on InfoWorld.

Filed under: InfoWorld, Java | Comments Off on Red Hat Picks Up Dropped Java 6

A Broken Promise

Posted on March 7, 2013 by Simon Phipps

Microsoft was fined for being a scofflaw and for failing to self-regulate as it had promised, not (just) for a “technical oversight”. I explain more on InfoWorld today.

Filed under: InfoWorld | Comments Off on A Broken Promise

Saying “Copy” Was A Screw-Up

Posted on March 4, 2013 by Simon Phipps

Transamerica ReflectionWhy is a song that I play digitally or a book I read electronically subject to extensive controls that are not considered appropriate to records or books? It’s because they are subject to licenses that can’t be applied by the seller to the physical works. Why can those licences be imposed on digital works? Because the use of digital works is considered subject to copyright, whereas the use of physical works is not. Why is that? Because the act of instantiating the work for use has been described as “copying”, allowing the rules surrounding copyright to be used as a threat to back up arbitrary license terms controlling use.

When I buy a physical work, the act of selling it “exhausts” all the control over normal enjoyment of it that arises out of copyright and the entity who created it no longer has a say on how I enjoy it – they can’t demand I accept a license as a condition of use.  But with a digital work, because each act of instantiation-for-use is called “copying” rather than some other name analogous with the physical world like “wrapping” or “inserting”, we’ve created a hook for the idea that a new act controlled by copyright law has taken place after the first sale of the work.

The control of the work is thus never considered exhausted and the copyright administrators are able to absolutely and indefinitely control use, including uses that save backups, uses that involve networks, uses that involve passing the work to a friend temporarily or to anyone permanently, uses that enrich society without endangering the author. All uses you’d naturally expect from something you had bought.

Controlling Culture

This control over those enjoying and using cultural works was neither precedented nor anticipated by legislators, so the basic law involved includes no attempts to balance the needs of society and of creators of works where digital works are concerned. Instead, the only limit on the controls imposed on users is the imagination of the businesses administering copyrights. The focus of that imagination is naturally the maximisation of income and control, even to the extent of creating scarcity artificially where it does not otherwise arise, so that the maximum number of control points exist for monetisation.

But even worse, the penalties the law provides for breaching those fanciful licenses are also unbalanced. They’re intended to punish people who unlawfully mass-manufacture, not those whose cultural enjoyment breaches some unreasonable-but-legal license. As a result they unjustly — but legally — apply overwhelmingly disproportionate punishments to ordinary citizens.

The licenses so devised are complex beyond the understanding of the untrained, they include arbitrary terms and restrictions, they are frequently and arbitrarily changed. All of these dimensions happen without any need to balance the needs of culture or citizens, since neither is a stakeholder for the copyright administrator. There’s no backlash because there’s little expectation of enforcement; all the same, automated enforcement is becoming increasingly common.  When a market is controlled by unrestrained licensing rather than by statute that’s a clear DNA marker for malaise.

So where did we go wrong? We mistakenly allowed the technical term for moving bits between buffers to be assumed to be equivalent to the term used by authors and other makers for creating a new original work for sale. They simply aren’t the same act, and the laws that have accidentally bled from mass production into cultural enjoyment are simply not fit for that purpose – how could they be?  When we said “copy”, we screwed up and it’s that error that really needs fixing.

[A revised version of this was posted to ComputerWorldUK on March 7, 2013]

Filed under: Copyright | Tagged: | 4 Comments »

Not Risk But Trust

Posted on March 3, 2013 by Simon Phipps

In her warm and enjoyable TED Talk, Amanda Palmer ends with an exceptionally important comment.  She says (at 13:08):

I think people have been obsessed with the wrong question, which is how do we make people pay for music. What if we started asking, how do we let people pay for music?

As Neil Gaiman says, her talk is about much more than just music. Palmer says earlier (at 11:29):

For most of human history, musicians, artists they’ve been part of the community,  connectors, and openers not untouchable stars. Celebrity is about a lot of people loving you from a distance; but the internet and the content we are freely able to share on it are taking us back. Its about a few people loving you up close and about those people being enough.

When Palmer speaks of Celebrity, she’s describing an artists view of the industrial-style society —  a society of mass centralised production and physical delivery. That industrial society had a natural scarcity that allowed monetisation by control of the pinch-points of production, delivery and payment. The sheer volume focussed through narrow pinch-points created opportunities for massive wealth. But Palmer is speaking a heresy here; she speaks not of unbounded wealth, but of sufficiency. Something has changed.

While plenty of opportunists are trying to grasp the effects of the Internet as if they were just another artefact of an industrial society, a few — like Palmer — are conducting brave experiments to determine new models that embrace both the human connection that arises from a mesh of peers and the scale that the Internet draws together. Palmer says (at 12:01):

So a lot of people are confused by no hard sticker price; they see it as an unpredictable risk. But the things I have done – the Kickstarter, the street, the doorbell – I don’t see them as risk. I see them as trust.

You can see why the winners of the 20th century industrial society hate this. Corporations can’t trust and models that embody trust are largely unavailable to them. If Trust is the key, it’s the brave experiments that are the future.  The successes among them are not the few making industrial volumes of money but the ones who are able to sustain a life that’s rich and enough.

Those experiments succeed to the extent they embody a reliance on humanity — reputation, influence, trust. The Internet, along with the collapse of control-point-based capitalism, are propelling us to a place where we need a new approach trading control for influence. Social business, whuffie, reputation economy, singularity; call it whatever you want, but it’s just about real enough to see its outline now.

Filed under: Music | Tagged: , | 3 Comments »

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    All views expressed on this blog are those of Simon Phipps and do not necessarily reflect the views of any other entity, including current and former employers and clients. See my full disclosure of interests.

    © 2010-23, Simon Phipps. All rights reserved, all wrongs righted. Unless otherwise credited all photographs, videos and other media are included in this statement. Some photographs are available for licensing via iStockPhoto. To contact the author, please use the e-mail form.