This morning, the European Court of First Instance announced that it would uphold the European Commission’s decision that Microsoft has abused its dominant market position.

The Court ruled that Microsoft did this by refusing to supply and authorise the use of interoperability information and by tying together the Windows client PC operating system and Windows Media Player. Although the court essentially upheld the Commission’s decision, it did annul certain parts relating to the appointment of a monitoring trustee, which it say have no legal basis in Community law.

ORG welcomes the Court’s decision, which is good news for consumers and business alike. As ORG advisory council member Ian Brown points out over at Blogzilla:

“The network effects in many digital markets make competition law more vital than ever if we are to see vibrant free markets. A loss today for the Commission’s competition directorate would have been disastrous, forcing them to tread much more carefully in regulating digital monopolists.”

Groklaw has good analysis and pointers to reactions from the Free Software Foundation, Samba and others. Text of the full judgement is available here; initial reactions from Microsoft are available here.

ORG’s Becky Hogge will be on the BBC1’s one o’clock news today discussing the decision with the their technology correspondent, Rory Cellan-Jones.

The House of Lords Science and Technology Committee have published their fifth report today, which makes a variety of recommendations to legislators, the police, businesses and citizens to improve personal security on the internet. The full report is now available to download.

Much of this morning’s media coverage is focussing on recommendations to create a dedicated e-crime unit, or to develop BSI kitemarks for security in internet services. But the report makes other recommendations too. For example, the Committee recommends introducing some kind of liability regime for software vendors, although it recognises the potential side effects this might have on innovation, or on open source software. The report sets up an interesting debate on this issue between some of the Committee’s expert witnesses - including Bruce Schneier, Jonathan Zittrain and Alan Cox - which is well worth reading (go to para 4.25).

The report also makes some radical recommendations for network level security, suggesting that Internet Service Providers’ traditional defence against liability for bad traffic on their networks - that they are “mere conduits” - should be looked at again. But any re-examination of ISP liability needs to be handled very carefully. As notice and takedown practices tied to suspected copyright infringement have shown, ISPs are not best placed to police the network, and can be expected to react to this kind of pressure by knocking users off the network without appropriate levels of investigation into those users’ actions.

Other recommendations include more research funding for computer security groups and a re-examination of the Computer Misuse Act. The Committee also adds its voice to the chorus of people calling for greater powers for the Information Commissioner’s Office. While such a detailed, considered and well-informed report should be welcomed, the digital rights community needs to pay close attention to how policy makers choose to interpret its recommendations.

More analysis of the report here and here.

Less than one year ago WIPO promised to re-draft its Broadcasting treaty. Member States, mindful of the harm it could cause to citizen-media, refused to grant new copyright-like rights to broadcasters and cablecasters. The new draft was issued in May, but - contrary to WIPO’s promise - it offers similar exclusive control to big media but offers no protection for internet users.

Please help the cause by signing the petition - it takes virtually no time at all. Beyond that, please write to your MPs. This tactic was really effective in last year’s campaign, especially when you ask your MP to pass on your concerns to the relevant minister. If you feel this issue and have time and energies to give, drop us a line and we’ll connect you with national and international groups campaigning around this issue.

Dean, who leads the UK Podcasters association says

“This inappropriate WIPO legislation is dangerous, and must not be allowed to pass into national law as it stands, or we risk seeing a vibrant industry saddled with restrictions and our individual rights handed wholesale to corporate broadcasters.”

This campaign is led by the EFF’s excellent Gwen Heinze. She says

“The exceptions … are far worse than this time last year … there’s no mention of webcasting or netcasting, but Broadcasters and cablecasters will get the right to control Internet retransmission of anything broadcast or cablecast. Therefore, podcasters won’t receive any rights under the treaty (only traditional broadcasters and cablecasters will), but podcasters are likely to be detrimentally affected by the treaty for a number of reasons. Put simply, from podcasters’ point of view, we are in the same place we were last year, but there’s an even stronger push to try to get the treaty through. If the current treaty draft is accepted by WIPO Member Countries next week, it moves to the next treaty stage - an intergovernmental Diplomatic Conference now scheduled in November.”

If you have any queries, drop them in the comments below or to the usual email address.

The Patent Office needs to hear from artists and creators. Please let us help you get in touch.

The Patent Office is charged with implementing the exciting recommendations suggested in the recent Gowers Review of IP. But they are yet to be convinced of the crucial need for some of these recommendations, mainly because they’re finding it hard to get in touch with the relevant practioners. They are looking for concrete examples of creative practices inhibited by the law, to back up proposed exceptions for the purposes of “creative, transformative or derivative works” and “caricature, parody or pastiche”.

Would you, your colleagues, students or collaborators benefit from these exceptions? Are you working or have you worked on a project outlawed by the overly-protectionst copyright regime, which would have benefited from these kinds of exceptions? If so, please get in touch - info[at]openrightsgroup.org - and share your experience.

Rights holders were of course quick to lobby against these suggested exceptions. In their opinion the dismal and labour-intensive “must-ask-permission!” culture of copyright-licensing works just fine as it is. They don’t see the creative and social opportunities in remixing and poking fun, only the economic-downsides in losing control of their ‘IP assets’.

But if you are a practicing artist with relevant experiences to share, please get in touch today so we can show the importance of copyright exceptions to Patent Office.

Thanks to Jordan Hatcher for reporting an AHRC Research Centre for Studies in IP open forum, which discussed The Gowers Review of Intellectual Property. The discussions had a strong Scottish flavour, but the criticisms reproduced here also apply generally.

Gowers’ strengths

* Improving the research exception in patent law, to bring greater flexibility and greater growth to the sciences).
* Copyright exceptions for distance learning and library / archival purposes.
* An Office of Fair Trading investigation of collecting societies was welcomed for potential benefits to artists and authors.
* Rejection of ‘music industry’ calls for an extension of the copyright term extension for sound recordings

Gowers’ weaknesses

* The system of voluntary registration of copyright would not be effective. Most orphan works that museums and libraries (in particular) are interested in are of the type that would never be registered (such as family photos).
* The recommendations to improve patent quality are welcome, but unlikely to actually improve patent quality. In addition, the recommendations failed to recognise work that is already ongoing on in this area.
* The recommendation for a private copying exception for format shifting is generally unworkable. (How does one regulate the allowance of a single copy per new media format? Creating a legal right to do so would be unlikely to produce change in consumer behaviour.

Gowers’ structural faults

* Not enough time given to comprehensively review the area of law, or the 440+ public submissions
* The Gowers Review was characterised as an instance of ‘evidence influenced ‘ policy making rather than the ‘evidence based’ approach that the Report itself claims to take (although - notes ian Brown - even this is an improvement on the bad old days of ‘evidence free’ IP policy).
* A bigger question, which Gowers failed to address, is which Ministry should be ‘the one’ to deal with IP — although it was suggested that a cross government body on IP may be preferred.

Thanks to everyone who made it along on Monday night. For those who could not attend, and also for reference purposes, you can now download the audio recording - in either MP3 or Ogg Vorbis format - from the link below. Its split into 2 sections, 1 covers the lecture from Jonathan Zittrain, and the other covers the panel discussion.

http://media.ito.com/suw/rtm/

We hope to make an audio-visual record available within a week or so.

The Court of Appeal has ruled on two cases involving software patents today. It rejected one and unfortunately granted the other. It was hoped that the ruling would confirm that software development which relates only to new business logic does not have to worry about patent threats. As more and more companies in the United States get tied up in business method patent litigation, this decision should be a worry for UK companies. The full ruling is here, for those of you that are really keen. If you want some more details or are a member of the press I recommend you check out the FFII’s comments on the Court of Appeal Judgement in Macrossan and Aerotel.

These two cases are of vital interest to anyone concerned with the ongoing debate over the patentability of software and business methods in the UK and Europe. Both of the cases at issue concern patents in the area of software and business methods and so the appeal presented a historic opportunity for the UK courts to reaffirm the clear exclusion of these areas from the scope of patentability as well as to send an important signal to legislators and patent officials at the European level. It has not done so.

Aerotel’s patent that was granted today claims the making of telephone calls using prepayments. The essential idea is to have a telephone exchange which keeps a record of clients’ credit. Clients can then dial into the exchange, and have their calls completed for as long as they have credit to pay for them.

Why are these cases so important? High Court decisions do not establish binding precedents on other High Court cases, but decisions by the Court of Appeal do bind lower courts. Today’s decision is the first time the Court of Appeal have ruled on software and business method patentability since 1997, and gives a definitive statement of the UK law in this area.

Both patents do not contain anything novel except new administrative or business logic, with solely administrative and business consequences. At stake was not only the Court of Appeal’s decision, but how it decides it. We will be looking closely at these rulings and posting again to provide you more information.

Macrossan’s patent application was rejected by the UK Patent Office. In the High Court, Macrossan appealed against this rejection, but the appeal was dismissed by Judge Mann, finding that although not specifically a business method, it was a method of performing a mental act by a computer. It has been described by one software contractor as an absolutely conventional “fill-in-the-blanks website that picks the right docs based on guided answers, then fills them in appropriately and disgorges them wherever required”. The only new idea was to apply this to the documents needed to incorporate a company. Quite rightly this patent was rejected today on appeal.

The European Union’s plan to regulate the net as if it were TV - Television Without Frontiers - picked up a lot of attention in blogs this week, after the Times covered it.

The basic idea is flawed - TV involves handing a monopoly over spectrum to organisations, so regulating how they use it makes some sense, but there is no spectrum scarcity online, as all you need is a webserver. So the EU limits on local content, advertising intervals and content labelling don’t fit at all.

I spoke about this on the Technorati videoblog last week, and the BBC’s Pods and Blogs show last night. You can hear me about 30 minutes into this show recording.

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?

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