Just a few days after Joe Karaganis posted his response to the RIAA's favorite researcher, Russ Crupnick of NPD Group, who suggested that Karaganis must be drunk and have little knowledge of statistics to publish a study showing that pirates tend to buy more -- and then revealing his own numbers that showed the exact same thing -- UK regulatory body Ofcom has come out with a study saying the same exact thing again (found via TorrentFreak).

From this, I assume the only logical conclusion is that Ofcom officials are drunk and should have their statistics "licenses" taken away. That, or, it's pretty obvious that people who pirate aren't all just "evil pirates," but also include the industry's best customers, who are apparently being somewhat under-served by the industry. And that's actually supported by other data in the report. When asked what would make people stop infringing, people wanted cheaper legal services and services that had everything they want available to them legally, rather than piecemeal efforts that leave it impossible to get what you want much of the time. It also becomes clear that infringement is not on the margins, but a common activity. 66% of people noted that they had downloaded, streamed or shared infringing content -- with 56% doing so in the last three months -- with 16% admitting to illegal content streaming, downloading or sharing. And of course, the numbers are much bigger for younger people, meaning that those overall percentages are only likely to increase over time. Of course, the amount of sharing varied based on the content, but the idea of getting infringing content this way is clearly quite mainstream.

The study also looked at what they spent on, and, not surprisingly, money spent seems to be shifting to scarce goods -- the things that can't be "pirated." In the music world, that includes merchandise and live, as well as online subscriptions, rather than "buying music." The report also suggests that, when you take into account price elasticity of both downloads and subscription services, the industry appears to be overpricing both significantly, and they could probably make a lot more money with significantly lower prices, making it up (and then some) based on volume: Note that, in both cases, if prices went much lower than they are today, even those who currently pirate everything would be much more likely to pay. They have similar tables for other types of content, showing the same basic thing as well. The elasticity on ebooks is really quite impressive, actually: All of this paints the same basic picture that plenty of us have been arguing for over a decade: treating "pirates" like criminals is a mistake. They're often either the best customers or the potential best customers if they were better served by the industry, which often means offering things more conveniently and at a lower price. But the industry still resists this notion and wants to continue to demonize all infringement and any service that helps infringement. What a wasted effort.

You may recall that, earlier this year, we wrote about a very troubling ruling in the UK against the founder of SurfTheChannel, Anton Vickerman. STC was a linking site, no different than others that had been found perfectly legal in the UK. After the conviction, which resulted in Vickerman being put in jail for four years, some additional info came out that was really horrifying. First, there was the fact that this criminal case, including the investigation, was driven entirely by a private anti-piracy organization, FACT, which is financed by the Hollywood studios. Yes, a criminal case that was run by private interests. Actual law enforcement had refused to proceed with the case, saying that there wasn't evidence of direct infringement. Furthermore, some "anonymous" notes from the court room suggested a judge was on a mission to put Vickerman away.

Now comes the news that Vickerman has been hit with contempt of court and given an extra month in jail all for releasing some of the documents that revealed what a farce the case was. Once again, the judge seems focused on punishing Vickerman for his attitude, rather than any real problem:

Vickerman, 38, apologised to Judge John Evans, who had previously branded him the "most arrogant" defendant he had ever come across.

Vickerman, from Gateshead, said: "I genuinely believed that this was in the public domain, so I apologise for that."

The judge jailed Vickerman for an extra month for the contempt, saying: "You were aware that there were restrictions upon what you could publish.

That whole "most arrogant" part is really troubling. If you were genuinely innocent and being railroaded in a criminal case by private money (the same money that financed a competitor to your site), I think you'd be pretty pissed off too.

Folks in the UK have spent much of this month following the story of Lord McAlpine (Robert Alistair McAlpine) the former politician who worked for Margaret Thatcher. Earlier this month, the BBC reported on its Newsnight program that an unnamed former "senior" politician in the UK government was implicated in a child abuse scandal. People on Twitter quickly assumed from the description that it was McAlpine, and the story spread quickly. A few days later, the Guardian broke the story that it was a case of mistaken identity. That scandal has thrown the BBC into chaos over its reporting.

But, more interesting to us, is the fact that Lord McAlpine (not a Twitter user) has announced his intention to go after 10,000 Twitter users for either claiming he was the person in question or for retweeting someone else saying that. Some have already apologized for their tweets, but even among those who have, they claim that McAlpine's lawyers are going to ridiculous lengths, with one person, Sally Bercow, who has apologized, also claiming that McAlpine's lawyers are "ambulance chasers" and "big bullies."

But the decision to force 10,000 people to pay up seems crazy:

Lawyers acting for Lord McAlpine have also drawn up a "very long list" of targets they intend to pursue for defamation, including the authors of 1,000 original tweets and a further 9,000 individuals who retweeted those messages.

Apparently if you're "small time" you won't have to pay as much:

Lord McAlpine's solicitor, Andrew Reed, said last night that those with under 500 followers will be asked to make a donation to charity as part of a settlement, with an "administration fee" for sorting it out. He added that higher profile figures, such as Ms Bercow, are "a separate matter".

Here's the insane part: McAlpine claims that he's doing this to "restore my reputation." Demanding 10,000 people on Twitter pay up isn't going to "restore" your reputation. It's going to tarnish it. Yes, it's pretty clear that McAlpine was wronged by the initial reports that suggested he was involved in the scandal. And the BBC is paying up handsomely for their mistake (apparently a six figure settlement has already been negotiated). But the news that the BBC's report was false spread like wildfire. Everyone knows the report was false. Going after people on Twitter for talking about it doesn't do anything more to restore his reputation, it just makes him look like a giant bully -- and, in the process, calls much more attention to him and his tactics here.

Last week, Techdirt wrote about a US teenager being banned from using the Internet until his 21st birthday as punishment for his involvement with some Web site break-ins. That seems incredibly harsh, and as Mike noted, earlier bans have been tossed out on the grounds that they were unreasonable.

And that is exactly what has just happened in the UK, as the Guardian reports:

Banning anyone from the internet is an "unreasonable" restriction, two appeal court judges have ruled, suggesting that access to a computer at home has become a basic human right.

The decision by Mr Justice Collins and Judge Nicholas Cooke QC signals judicial recognition of how pervasive digital communications are in an era when a multitude of services can be obtained online.

What makes this judgment even more interesting is that, as with cases in the US, it concerned a sex offender. Normally, these result in especially severe sentences. So for an Internet ban to be held to be "unreasonable" even here means that for far less serious offences -- unauthorized sharing of copyright works, say -- it is hard to see Net disconnection imposed by a lower UK court being upheld upon appeal.

That would seem to spell the end of the "three strikes and you're out" approach in the UK. Of course, there are still plenty of other unjust ways of exacting collective punishment on families -- throttling their Internet connection rather than cutting it off, for example -- but it is nonetheless a hugely important decision. In particular, it seems bound to impact the UK's Digital Economy Act, whose detailed implementation is still being discussed.

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Lately, we've noted a string of questionable prosecutions in the UK over statements made by people on social networks. These posts may have been in poor taste, but hardly seemed like the sort of thing that ought to be criminal. While UK prosecutors are finally admitting that perhaps they need to rethink speech online, it apparently hasn't stopped these kinds of arrests and prosecutions. Police, over the weekend, arrested someone for posting an image of a burning poppy. The poppy is seen as a memorial sign for those who died in battle, and the image was posted on "Remembrance Sunday." While some might say this in poor taste, it certainly seems like a legitimate form of political protest... but apparently not to law enforcement in the UK:

"A man from Aylesham has tonight been arrested on suspicion of malicious telecommunications," Kent police said in a statement after the arrest. "This follows a posting on a social network site of a burning poppy. He is currently in police custody awaiting interview."

The article notes that free speech advocates in the UK are speaking out in response to this, pointing out how ridiculous it is -- and noting that part of the reason why soldiers fought wars for the UK was to provide freedoms like the ability to express their views on things like war.

I wonder how copyright maximalist musicians feel about this particular story. Techdirt reader glassneedles alerts us to an offline (!?!) news article in the publication Private Eye, about how the UK's Newspaper Licensing Agency (NLA) has declared that musicians who quote positive reviews from newspapers need to pay £1,250 per year (which would allow them to quote up to 50 reviews). Seriously. Apparently, the NLA went around to various music agents and managers a while ago, and they (quite reasonably) ignored the threats. That just made the NLA mad.

... the phoney war has turned into a real one, with the NLA chasing agents, threatening legal action and demanding not just license payments for future quotes but also retrospective payments for past ones.

The amounts are crazily excessive for the modest, shoestring operations that most classical music management and PR companies tend to be, with £7,000-£8,000 a typical demand.

For folks who help market a number of musicians, the NLA claims are apparently adding up to being fairly serious.

The most outrageous example... concerns a small PR company called ElevenTenths, which is effectively one woman, Claire Willis, working form a spare bedroom.... Poor Ms. Willis was collared by the NLA a few months ago, required to fill in forms about her clients and activities, and then received a bill for £23,500.

Willis complained and apparently the NLA "backed down" and offered a deal for "only" £1,588.45. In the past, we had written about the NLA winning a lawsuit against news aggregators, so perhaps it's now turned to those who quote its reviews as a new, highly questionable, revenue stream.

I wonder if folks in the UK are regretting the decision, in the Hargreaves report, that the UK doesn't need an explicit fair use rule.

We've already covered how Apple got in a bit of trouble with a judge in the UK for its childish way of posting a statement on its website saying that Samsung didn't copy Apple with its devices. Apple then tried to claim it would take two weeks to fix, but when the court made it clear that was ridiculous, Apple miraculously figured out a way to comply -- though people quickly pointed out that it used some javascript to push the notice down the page. Then, without saying anything, Apple stopped using that javascript.

Perhaps it's because Apple is finally realizing that the UK judge was really furious at Apple for its handling of this whole situation. The full ruling from the judge that made Apple change the statement has been released, and it shows that the court sees that Apple is dragging its feet and doing everything it can to avoid fully complying. Furthermore, it directly calls out the original statement for providing "false and misleading" information. As some UK court observers noted, the judges are clearly not happy with Apple, which seemed to think its standard reality distortion field might work on judges as well as the public.

Apparently Apple didn't need two weeks to put up a new "apology" statement on its UK website after the first obnoxious one was deemed not good enough by the UK courts. As you may recall, Apple was told by the court that it had to tell the world that Samsung didn't copy Apple's design on some of its devices, after a judge ruled that Apple's devices were simply much cooler.

Apple has now put up its new statement and linked to it from its UK home page in a large font. The full statement is a lot shorter and doesn't include anything about how "cool" Apple's products are or the other court cases around the world. It has also admitted that the first statement was "inaccurate and did not comply" with the original court order: Of course, it appears that Apple couldn't resist an attempt to continue to be slightly petulant in doing this, though it did so in a way that it hoped the judge wouldn't notice, by hiding it in the javascript. However, as the eagle eyes at Hacker News and Reddit quickly pointed out, Apple had added a bit of javascript to make sure that, no matter how big you enlarged the browser window, the link to the apology and the statement about it were below the fold. That is, there is no way to view that statement without first having to scroll down on the Apple page.

To be honest, I find it a little silly that the judge is requiring this statement at all. It seems to be going beyond what's reasonable already (and it seems wrong to require Apple to put a statement on its own website). Anyone who really cares about this stuff will see the news. That said, I find Apple's response to this ridiculous and that much more perplexing. Each attempt to somehow not fully comply with the judge's demand just calls that much more attention to the situation and the fact that Apple lost and Samsung didn't copy it. If Apple had just complied normally, this story would already be over.

The laws governing intellectual monopolies in the UK are in a state of flux at the moment. After the previous government in its dying hours rammed through the shoddy piece of work known as the Digital Economy Act, the present coalition government took a more rational approach by commissioning the Hargreaves Review into the impact of digital technologies on this area. One of its key proposals was that policy should be based on evidence, not "lobbynomics"; the fact that this even needs to be mentioned says much about the way laws have been framed until now.

As a result, the UK's Intellectual Property Office (IPO) has been trying to gather evidence in order to help politicians draw up new policies that correspond to the data, not just dogma. Not surprisingly, perhaps, those that have done well under the previous evidence-free approach have been mounting a rearguard action against the changes.

One of the people unhappy about both the Hargreaves Review and the IPO's response is the UK MP Peter Wishart, who made the following comments about them in Parliament earlier this year:

Ian Hargreaves was notionally in charge of that process [of looking at digital copyright], but having observed evidence being taken, and the report and recommendations be delivered, I suggest that the hand of the Intellectual Property Office was all over it. I believe that Ian Hargreaves was perhaps a figurehead, because the IPO seems to have driven the agenda. We will discuss some of the exceptions to copyright that the IPO proposed as part of its consultation, but it has been steering the process all the way through.

What is that predicated on? It is predicated on the belief that economic evidence should be at the heart of every initiative and everything that we do concerning intellectual property law. Ian Hargreaves has been perhaps a little cavalier when it comes to intellectual property, and we could say that he has made heroic assumptions about the value of some of the proposed recommendations and exceptions.

Wishart is also the Vice Chair of something called the All Party Parliamentary Intellectual Property Group. Here's how it describes itself:

The Group was launched in 2003 as a response to this and to create a resource for parliamentarians of both Houses interested in learning more about intellectual property (IP), its role in stimulating creativity and economic growth, how new services are developing to serve consumer needs, and the harm that can be caused when IP is not properly respected and protected.

As that makes clear, the All Party Parliamentary Intellectual Property Group is not an official UK government body, but more of a club for like-minded individuals. Earlier this year, the group announced its unofficial inquiry into how the UK government was handling intellectual monopolies:

The Group will seek to unpick the tangled web of cross-departmental responsibilities in this area by considering how policy has been developed, the effectiveness of the current approach, and whether the machinery of government can be improved for better policy formulation.

It's hard not to see this as an attack on the IPO and its new approach -- one of the six questions posed was "How effective is the Intellectual Property Office and what should its priorities be? (pdf)". That suspicion is confirmed by the recent publication of the results (pdf).

The group's philosophy is made plain early on in the document:

The fact that IP attracts so much interest reflects its increasing importance in our economy. Clearly IP on its own does not generate economic activity, but as a property right, it enables innovators, creators, manufacturers and designers to protect their innovation and monetise their work.

Except that copyright and patents aren't property rights, but "a government grant of a costly and dangerous private monopoly over ideas." Indeed, the increasing recognition that it makes no sense to treat copyright and patents as a property right really seems to stick in the craw of the parliamentary group. Here's what it says on the subject:

We were also concerned that officials from the IPO find it difficult to describe intellectual property as a property right. It was described as a framework by one official which immediately undermines it. If the IPO sees IP as a framework then it suggests they see it as something that can be shaped and altered at will. We question whether such a laissez fair[e] attitude would be taken to other property rights and if they were, whether senior Officials and Ministers would allow such an attitude to pervade.

Note that the IPO is blamed here for simply conveying a truth that is unpalatable to the group. Elsewhere, the report tries really hard to find other reasons to blame the IPO; unfortunately, the facts keep getting in the way:

The evidence we received and heard was varied in this respect. Certainly the IPO's role as a registration body for patents was seen as very positive as was its role in educating both consumers and business about IP.

Whoops, sounds like the IPO is doing a good job for patents, so what about for copyright?

People's criticisms of the IPO's policy making process appear to have been ignited by their most recent recommendations in relation to copyright. There were many groups who supported these recommendations and the process by which they came about, however a very large number did not.

Oh dear: "many groups" supported the IPO again; but luckily, others did not. That is hardly surprising, since some of the ideas being considered by the IPO would try to put a modicum of balance back in UK laws governing copyright. That's never really happened before, thanks to the ratchet effect that has ensured the public domain has been constantly impoverished when the law is changed.

The idea that stakeholders might have to give something back to the public in the form of minimal exceptions may be unheard of, but it's hardly unreasonable. Arguably, we need to run the ratchet back much further in order to obtain anything like a fair balance between the rights of stakeholders, and the rights of the public.

But the latter are rarely considered. Indeed, it's significant that the world "public" isn't mentioned once in the Parliamentary group's new report. The nearest thing we get is "consumers", notably in the following paragraph, which betrays a typical lack of understanding about how formerly passive consumers are morphing into active co-creators:

When the officials from the IPO gave evidence, they were very clear that they saw their role as providing balance -- they see this balance as ensuring consumers can have access to content. We believe the IPO should look more carefully at how the IP framework stimulates the creation and development of new content, services, designs and other IP rich innovation as much as how existing content can be accessed. Only if they do this, will consumers of the future continue to have access to the content, products and services they enjoy.

That paragraph sums up why the All Party Parliamentary Intellectual Property Group so dislikes the IPO: the latter is trying to provide balance, and that is really the last thing that the copyright maximalists and their allies want to see here.

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Last week we noted that Apple had put up a rather petulant non-apology apology in response to the UK court order requiring it to advertise to the world that Samsung didn't copy Apple in making its devices. Many people wondered how the court would react to Apple's attempt... and the answer is that the court is not pleased (and is further displeased by Apple's claim that it needs two weeks to come up with something better):

At a hearing in the court in London on Thursday morning, the judge told Apple that it had to change the wording of the statement within 48 hours, carry it on its home page, and use at least 11-point font.

Apple tried to argue that it would take at least 14 days to put a corrective statement on the site – a claim that one judge said he "cannot believe".

The full quote from the judge was, apparently:

“I would like to see the head of Apple make an affidavit setting out the technical difficulties which means Apple can’t put this on. I just can’t believe the instructions you’ve been given. This is Apple. They cannot put something on their website?”

Another report shows that the judge reviewing this made his views of Apple's notice abundantly clear:

“I’m at a loss that a company such as Apple would do this,” Judge Robin Jacob said today. “That is a plain breach of the order.”

Apparently, the London appeals courts have some sort of antidote to the standard Apple reality distortion field.