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October 12, 2006 | Glyn Wintle

Making, supplying or obtaining articles for use in computer misuse offences

Some very well informed, entertaining and persuasive arguments were put forward in the House of Lords yesterday in a debate on 'Making, supplying or obtaining articles for use in computer misuse offences'. Its not often that you here the phrases "script kiddies" and "code monkeys" in Parliament.

Yes, we are once again talking about the proposed amendment (to s42 of the CMA 1990), which criminalises making, adapting, supplying and offering to supply a program that is likely to be used to commit an offence. Although the original amendment has been improved to 'offers to supply a program that is likely to be used to commit an offence', giving coders less cause for concern, the amendment remains fundamentaly flawed.

The many long and very readable speeches are reproduced here, but for those of you only skimming here's Lord Lawson of Blaby giving one succinct argument.

I am concerned about how this wording will be interpreted. It is clear that anything—whether it be a fast motor car or what we are talking about in this debate—that can be used for a malign purpose is likely to be used by someone of evil intent for that purpose. The wording of the Government's amendment is,

   "is likely to be used",

which means anything that is capable of being used. That goes much further than this House should be comfortable with. I hope that the Government will therefore give it consideration. With this amendment, they seek to narrow the conditions, but they are not narrowing them at all. Another look at this is warranted.

Lord Lawson of Blaby - House of Lords debates - Police and Justice Bill - 10 October 2006

The government apparently see nothing wrong in overly broad laws that criminalise activities the vast majority of computing professionals believe should be lawful. The Earl of Erroll summed up the Home Office's attitude as "Well of course we won't chase the good guys. We won't go after them. We are only after the bad guys." If you're not sure why that's a flawed argument have a read through some of the speeches. Why bother with laws and courts at all, if we can trust the police will only go after the bad guys?

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October 11, 2006 | Michael Holloway

Draft submission to EC Consultation on 'Content Online in the Single Market' - comments welcomed

Thanks for the comments on our draft. We made the submission - duplicated here on our wiki - in good time.

We're posting this to give Supporters an opportunity to review and comment on our draft version. The deadline for submission is this Friday, the 13th October.

1. Introduction to the Open Rights Group Open Rights Group is a not-for-profit advocacy group which works to raise awareness of digital rights issues in the UK and Europe. A supporter-funded group, ORG connects journalists with experts, organises campaigns and engages with government consultations on behalf of its supporters and the wider public.

2. Comment The views of all stakeholders in the information society should be taken into account when forming policy. Broadening your consultation to stakeholders outside the private/corporate sectors is an important step which we fully support. While all stakeholders agree that copyright is of growing importance in the development of the information society, it is paramount that all affected parties, including the public, have adequate opportunity to convey their views on the development of copyright law and policy.

Policy should result from a combination of subjective surveys and empirical research. Policy must not be based solely on the opinions and reports produced by those who have vested interests, but should instead be a product of independent empirical research. Where empirical research is commissioned, results must be acted upon even if their recommendations might be unpopular politically or with industry lobbying groups. We must not follow the example of the Database Directive review where damaging policy was allowed to stand because it was easier than changing it, but rather show the responsiveness to broader stakeholder interests as seen with Software Patents.

We highly recomment that you follow the recommendations of the RSA's Adelphi Charter when considering reform.

3. Specific concerns 3a. Licensing, rights clearance, right holders remuneration It is becoming increasingly common for rights holders to use contracts and contract law to bypass copyright law, using overly restrictive licence agreements to prevent the public from exercising their fair dealing rights. This effectively extends rights holders monopoly control beyond that granted them by copyright law and, in some cases, diminishes the public domain.

* Licences, rather than contracts of sale, are emerging as the key transaction method in the digital environment. The majority of these licences deliver fewer access and copying rights than are available under existing copyright law.

3b. Networks We fully support the concept of 'network neutrality', which maintains low barriers to entry, provides unfettered access to lawful content, and promotes competition. We should be very wary of any legislation which might allow network operator to profit from discriminatory practices, particularly as network neutrality is already embedded in the concept of 'mere conduits' as enshrined in the ECommerce Directive. Like the Single Market, network neutrality has allowed small publishers and businesses across Europe to reach a wider public thus avoiding media hegemony. It must, therefore, be protected.

A number of undesirable outcomes may result from an end to network neutrality:

* Anti-competitive behaviour, where network operators implement exclusive or preferential deals, or use the tiered system to unfairly promote own-brand content. * A skewed market that favours larger and better funded content providers, inhibiting local diversity and innovation. * Increased costs for consumers, because content providers inevitably pass on surcharges to their customers. * Increased consumer confusion, because broadband users will experience varying response times in a tiered system.

3c. Piracy and unauthorised uploading and downloading of copyright protected works A failure to distinguish minor copyright infringement performed by individuals from large-scale commercial counterfeiting of works by organised criminal gangs will damage public respect for copyright law. Whilst the former technically constitutes copyright infringement, there is no compelling evidence that it actually harms either right holders or authors / producers. Prosecuting such cases is not in the public interest, and it is particularly important that such infringement remains a matter for the civil, not criminal, law. Introducing draconian IP enforcement provisions, beyond the measures available in most member states, at the behest of multinational content-industries to 'fight terrorism' will also have a corrosive effect on public respect for copyright law.

3d. Digital Rights Management (DRM) We recommend that the Commission avoid future market interventions such as the Copyright Directive's anti-circumvention provisions, but instead allow the market to decide if DRM is a useful tool for consumers. We particularly support the lifting of anti-circumvention legislation Europe-wide.

* DRM is given close to total legal protection within the UK, with no practical processes allowing for legal circumvention in the interests of disabled access, long-term preservation (archiving) or where the DRM prevents uses permitted by fair-dealing exceptions. One practical effect of the EUCD anti-circumvention provisions is to undermine the intent of laws protecting the disabled and ensuring public access to information goods.

* DRM does not have to expire, and can effectively prevent the work from entering into the public domain at the expiry of the copyright period.

We recommend that DRM and TPM (technical protection measures) are not allowed to undermine the longstanding limitations and exceptions such as fair dealing in UK law. One possible method to ensure user-rights (suggested by the UK's National Consumer Council) is for mandatory labelling of DRM products, clearly explaining permitted and prohibited uses. 4. Afterword

If you would like ORG to provide more detailed testimony, please contact Suw Charman, Executive Director (suw.charman@openrightsgroup.org).

REFERENCES 1. The RSA Adelphi Charter - http://www.adelphicharter.org/adelphi_charter.asp 2. The National Consumer Council's recommendations for labelling DRM - http://www.ncc.org.uk/intellectualproperty/gowers.pdf

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October 09, 2006 | Suw Charman Anderson

22nd October - Copyfighters Drunken Brunch and Talking Shop

The next London Copyfighters Drunken Brunch and Talking Shop will be held on Sunday 22 October. We will meet upstairs at the Mason's Arms, 51 Upper Berkeley Street, Marble Arch at 12 noon for brunch. The Mason's Arms is on the corner of Berkeley Street and Seymour Place. Once we are suitably lubricated (at around 2pm) we will, en mass, go to Speaker's Corner and orate on the subject of copyright, DRM, the weather -- whatever. Speaking isn't mandatory, but it IS highly encouraged. If you've never spoken before, then I would recommend it as it's a bit of a mad experience you won't get elsewhere! Photos from past events are on Flickr, and we also have a new Flickr Group for the London Copyfighters . Please do feel free to join and add your photographs. Please let us know if you are coming by signing up on the ORG wiki so that we can get an idea for how much food to order. Nearest underground station is Marble Arch. Turn right at the top of the escalators, then right as you leave the station, then right down Great Cumberland Place, then left down Upper Berkeley Street. The Mason's Arms is on the corner of Seymour Place and Upper Berkeley Street. Any problems, please call Mike on 020 7096 1079 (which redirects to his mobile). See you there!

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October 06, 2006 | Michael Holloway

WIPO Broadcast Treaty scheduled for further scrutiny

There are concerns proposed WIPO legislation will further extend the social and cultural dominance of trad broadcasters over the internet, as mentioned here on this blog. An announcement this week by the WIPO General Assembly regarding the draft Broadcast Treaty offers encouragement to activists, and has been hailed as a "huge victory for the public interest." Reports call for celebration on two counts.

The proposed legislation will now at least face further scrutiny. Rather than procede directly to a Diplomatic Conference (DC) next Summer - WIPO's mechanism for passing new laws - the draft will be considered in two interim meetings intended to bring about a consensus. The draft's sponsors hoped to avoid this scrutiny and simply force the legislation through, but popular opposition from a broad consensus, and disagreement amongst signatories evidently required WIPO to think more carefully. India, Brazil and the US led the calls for further review.

In addition to scheduling further discussions on the draft, it was decided to reject the controversial rights-based approach in favour of a signal-based mechanism. So the needless extension of exclusive control over 3rd party cultural productions has been rejected, in favour of legislation which pursues the less protectionist agenda of preventing theft of broadcaster's signals.

This news is genuinely heartening. WIPO gets a lot of stick for its un-democratic methods, but this announcement suggests activists and academics can influence even the most elite bureaucrats. And beyond that, the expansion of protectionist IP regimes is not inevitable; let's hope we score a similar victory with our Release the Music campaign...

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October 05, 2006 | Glyn Wintle

Software Patents - the stench lingers

The European Patent Litigation Agreement (blogged by us as Software Patents - back like a bad smell) remains on course to pass the European Parliament (EP) with a comfortable majority. Although the proposed legislation will not by itself bring Software Patents into our legal system, as it stands the legislation gives powers to the European Patent Court (EPC) which will lead to the enforcement of Software Patents in Britain and across the EU. Our best means to oppose this development is to write letters to our MEPs, informing them of the many reasons why we continue to reject Software Patents, and asking them to support a number of amendments to the EPLA.

For further information on these amendments, ffii have published What’s Happening and What You Can Do together with a detailed summary of current situation. Also, if you want further advice for your letter, there are usually at least two ffii activists working in the Parliament to support EPLA-critical efforts, who you can contact by writing to europarl-help at ffii org In particular, we need letters to go to Conservatives, who should be interested to know that these proposals - opposed by small, medium and even some large business - will increase European bureaucrats' control over Britain. Also, your Liberal Democrat MEPs - part of the ALDE voting group (see below) - should be reminded that their domestic counterparts do not support Software Patents.

Three of the major parties in the EP have agreed to a compromise; the EPLA will be approved but only on the understanding that "significant improvements" are made before it enters the statute books. For example, the Rules of Procedure for the new centralized European Patent Court should be properly defined in advance rather than thrashed out by the court itself. Given the lack of media coverage of EP proceedings, here's some detail on the voting blocks and the relative power of each group.

  • EPP-ED: the Group of the European People's Party (Christian Democrats) and European Democrats in the European Parliament. 264 MEPs includes 27 UK Conservative and Unionists. Supports the EPLA
  • PES: Party of European Socialists. 201 MEPs includes 19 UK Labour. Strongly criticise the EPLA
  • ALDE: Alliance of Liberals and Democrats for Europe. 89 MEPs and is led by Graham Watson, a UK Liberal Democrat includes 12 UK Liberal Democrats. Unequivocally support the EPLA
  • Greens-EFA: The Greens | European Free Alliance. 42 MEPs includes 2 UK Greens, 2 Scottish National Party, 2 Plaid Cymru. Strongly criticise the EPLA. "EU Commission must not introduce EU patents by the backdoor"
  • GUE-NGL: European United Left–Nordic Green Left. 41 MEPs includes 1 Sinn Féin Strongly criticise the EPLA
  • UEN: Union for Europe of the Nations. 30 MEPs no UK MEPs
  • IND/DEM: Independence and Democracy. 29 MEPs includes 10 UK Independence Party MEPs. Strongly criticise the EPLA. "what part of "no" do they fail to understand"
  • Non-Aligned: 37 MEPs includes 2 UK MEPs
As the EPP-ED, PES and ALDE hold 567 out of a possible 732 seats, once they agree on any particular issue — as they do in this instance — the result (vote scheduled for 12/10) is a foregone conclusion. So, given its approval is all but inevitable, and the proposal in its current form will make it easier to enforce software patents its vital that you pressure for amendments by lobbying your MEP.

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October 05, 2006 | Glyn Wintle

Computer Misuse Act - Potential disaster avoided

Good news! It looks like the last really worrying amendment to the Computer Misuse Act is going to be improved. The amendment would have made it illegal if someone makes, adapts, supplies or offers to supply a program that is likely to be used to commit an offence. In an ideal world it would be deleted, but an improvement is still a good thing.

The amendment in its original form is horrible. By analogy, imagine a world where a politician with no experience of the building trade had heard that sledge-hammers could be used to break down doors to aid in burglary. So the politician writes a law that makes it illegal if someone makes, adapts, supplies or offers to supply building equipment that is likely to be used to commit an offence. I would be hard pressed to find an item of building equipment that could not be used in some way or form to commit a crime.

The always-impressive Spy Blog provides more details along with being the first people to spot the new amendment. Police and Justice Bill - dual use "hacker tools" - has the Government finally seen sense?

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October 03, 2006 | Michael Holloway

30 things we can do about DRM

To mark today as the global 'Day Against DRM', inspired by Michael Geist, here's a list of 30 easy things we can do about DRM.

1. Write to your local Member of Parliament. Letters (which are better than email) from just a handful of constituents are enough to get the attention of your local MP. Contact information and further advice here 2. Write to the Prime Minister. Contact information available here 3. Write to Tessa Jowell, Culture Secretary, especially if you live in her Dulwich and West Norwood constituency. She's in charge of the Department for Culture, Media and Sport, whose contact details are here 4. Write to Shaun Woodward, Minister for the Creative Industries and Tourism, especially if you live in his St. Helen's South constituency. Contact details here 5. Write to David Lammy, Culture Minister, who is responsible for the arts market, especially if you live in his Tottenham constitutency. Contact details here 6. Write to David Sainsbury, Baron Sainsbury of Turville , a major philanthropist and parliamentarian who specialises in Science and Innovation. Contact (and background information) here 7. Ask each political party where it stands on copyright. Copyright policy could prove to be a divisive issue at the polls - ask each political party for their views on the issue. 8. Write to your MEP; much of our copyright policy comes from Brussels and the EU, so worth informing your representative at the European Parliament that their legislation is dead important. Find out who your MEP is here 9. Write to the CBI - 'the voice of business' - contact details here 10. Write to your local councillor. The more politicians made aware of the ills of copyright the better. Find your local represenative here 11. Write a letter to the Foreign Office on our international copyright position. Our government should be lobbying the World Intellectual Property Organisation not to simply replicate US-style copyright reforms, but rather to consider different approaches to copyright - anti-circumvention measures in particular - that do not harm the public domain for the benefit of private interests. 12. Write to the Libraries and Archives Copyright Alliance - a great ally in our fight - and support their support their position by providing examples of problems copyright has caused to their local and university/school libraries. Contact information here 13. Write to the Office of Fair Trading. The combination of DRM and anti-circumvention legislation raises significant marketplace competition concerns. The OFT must become engaged on this issue by advocating pro-competitive and pro-consumer reforms. Moreover, it should be investigating cases of alleged abusive use of DRM. Contact information here 14. Write the National Consumer Council. The use of DRM raises numerous consumer concerns, potentially requiring specific consumer protection provisions and labeling requirements. The NCC are well aware of this issue in terms of data protection and consumer privacy online; tell them your personal experiences of being disadvantaged by DRM. Contact info here 15. Write to the Information Commissioner's Office to ask for their support in protecting your personal privacy against DRM. Contact info here 16. Raise the issue with your local library. The library community has been very engaged on copyright and will hopefully be a vocal stakeholder for any future reforms. At the local level, libraries can be encouraged to establish copyright policies that fully support user rights and to educate the local community on important access issues. Check your local council's website for contact information for your nearest library. 17. Raise the issue with your local school. If you are in school or have children currently in school, inquire how the school addresses copyright issues. Does it take full advantage of user rights? Is it aware of how the education exceptions may be limited by anti-circumvention legislation? 18. Sign a petition. For example, there is a petition calling on Bono to help join the campaign against DRM. Sign up here. 19. Support the Open Rights Group. ORG is a fledgling NGO formed to protect your digital rights through lobbying and media awareness. Join our discussion list and support us here 20. Buy online DRM-free alternatives. The copyright lobby argues that DRM is a pre-requisite to offering digital content online, yet there are many DRM-free online music services. For example, eMusic, the largest such service, is now the second largest online music service worldwide. 21. Support music labels that offer their music without DRM or copy-controls. Typically the major labels prefer DRM, whilst independent labels are less protectionist. Try, for example, bleep.com 22. Ensure that your local retailer will accept returns on DRM'd products. Many retailers sell DRM'd products without altering return policies to account for the fact that the products may not function as expected. Raise this with your local retailer and encourage them to adopt liberal return policies for DRM'd products. 23. Ask your ISP what it is doing to stand up for your rights. Britain's Internet service providers play an important role in defending user rights by only disclosing subscriber personal information with a court order, informing subscribers of requests for their personal information, and by lobbying for an expanded fair dealing provision. Ask your ISP for its policies on these issues. 24. Participate in a local meeting on copyright. There are a growing number of local "meetup" style meetings that bring together citizens concerned with balanced copyright. If there is a meeting group in your area, go. If not, get one started. 25. Support more balanced copyright positions from artists and creator groups. Many artists and creators are increasingly abandoning policy positions that favour U.S. style reforms and instead embracing a more balanced approach. If you are a musician, tell the Musician's Union or British Music Rights your perspective. 26. Use Creative Commons licensing. Creative Commons, which adopts a "some rights reserved" approach to copyright provides an exceptional (and exceptionally easy) method of supporting both copyright and access. More information here 27. Read licence terms. Increasingly contracts are being used that limit or eliminate user rights. Until legislation blocks the use of such terms, consumers should proactively read licence terms and reject those that unfairly limit their user rights. 28. Track media coverage of copyright. Until recently, media coverage on copyright rarely questioned the sound bites from the copyright lobby. That is changing, but Britain's media should be challenged when it fails to do so. Letters to the editor or a op-eds are a great place to start. 29. Educate yourself. There are lots of great sources on the implications of copyright reform... 30. Educate others. Once you know more about copyright reform issues, tell others. Educate friends, family, and co-workers. Copyright impacts us all.

And check this brand new site for the latest news and updates on the anti-DRM campaign - drm.info

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September 27, 2006 | Glyn Wintle

British Library launches IP manifesto

At a fringe event at the Labour Party conference on Monday, the British Library launched their manifesto for reform of UK intellectual property (IP) law. Speakers included representatives from Microsoft UK, Google, the National Consumer Council, the British Phonographic Industry and - on behalf of the Open Rights Group - Ian Brown. Pre-empting the publication of the Treasury's Gowers Review of Intellectual Property, the succinct manifesto makes six key recommendations for reform, placing them in a broad social, cultural and political context.

“Our IP Manifesto sets out the unique role that the UK national library must play as both a leading voice and an honest broker in the debate that the digital revolution has generated,” said Lynne Brindley, Chief Executive of the British Library. “As a publisher in its own right, the Library understands the opportunities and threats presented by digital to the publishing industries. As one of the world's great research libraries we are equally mindful of the threat that an overly restrictive, or insufficiently clear, IP framework would pose to future creativity and innovation. For example: currently the law does not permit copying of sound or film items for preservation,” she explained. “Without the right for libraries and archives to make copies, the UK risks losing a large part of its recorded culture.”

The manifesto's key recommendations:

  1. Digital is not different– Fair dealing access and library privilege should apply to the digital world as is the case in the analogue one.
  2. Contracts and DRM – New, potentially restricting technologies (such as DRM/TPM) and contracts issued with digital works should not exceed the statutory exceptions for fair dealing access allowed for in the Copyright, Designs and Patents Act.
  3. Archiving – Libraries should be allowed to make copies of sound (and film) recordings to ensure they can be preserved for posterity in the future.
  4. Term of copyright – The copyright term for sound recording rights should not be extended without empirical evidence and the needs of society as a whole being borne in mind.
  5. Orphan works – The US model of dealing with orphan works should be considered for the UK.
  6. Unpublished works – The length of copyright term for unpublished works should be retrospectively brought in line with other terms – life plus 70 years.

Intellectual Property: A Balance - The British Library Manifesto

This is very encouraging news indeed. Historically, IP debates have been dominated by corporate interests, with alternative voices simply not heard by legislators. Now the British Library joins the RSA and the British Council in calling for the return of balance to our IP framework. Balance in this context is shorthand for better representation of public - as opposed to private - interests entailing, for example, protection and expansion of the public domain and a more robust 'fair dealing' mechanism. The Open Rights Group wholeheartedly supports this suggested direction for reform of IP law.

Finally! Somebody gets it that DRM is altering the copyright law bargain, by not allowing fair dealing/fair use. And it's the British Library that is speaking out and saying that the same rules of the road should apply in the digital world as they have always done.

The British Library Gets It! - Groklaw

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