Following on recent reports that, under the PATRIOT Act, European companies that use Microsoft's cloud offerings in Europe might find their data subject to US government snooping and seizure, it appears that some rather large European companies are rethinking their cloud deployment plans. UK defense contracting giant BAE had apparently planned to start using Microsoft Office 365, until it was pointed out that this could make their documents subject to US snooping under the PATRIOT Act... and the company changed its plans. At what point do PATRIOT Act supporters realize that such broad provisions don't help the US at all, but only lead to situations like this, where business is driven elsewhere.

Remember the story about the composer who found his music featured in anti-piracy ads and had a difficult time getting paid out, triggering a corruption scandal at collection society Buma/Stemra? It was obviously a bit ironic that the music in question was used in anti-piracy ads, but it appears the irony truck forgot to unload a package - filled to the brim with humiliation.

Using YouHaveDownload, a tool that tracks torrent transfers on various public torrent trackers and matches them with IPs, a popular Dutch weblog has uncovered piracy at that aforementioned collection society. They scanned the IP range of Buma/Stemra's HQ and among the pirated material they found:

• An episode of Entourage (whois).
• A copy of the game Battlefield 3 (whois).

The tool only covers about 4 to 6% of what's available on the networks it tracks, so it's possible that there's a lot more sharing evil piracy going on from their offices as well.

If anything, this scandal really shouldn't be a scandal. Anti-piracy lobbying and campaigning has led to sharing becoming a taboo, while the money spent could have been used to facilitate sharing and to build sustainable business models on top of that. Despite pirates among their own ranks, organizations like Buma/Stemra feel that the Dutch policy of downloading from unauthorized sources for personal use being legal should be altered (read their statement). Even though the Dutch parliament disagrees, the Dutch government is trying to get exactly such laws altered citing EU pressure, even though the Digital Agenda Commissioner, Neelie Kroes (herself Dutch), has stated opposite goals. With people in parliament who do not know "what or who is a torrent," it's not entirely unlikely that the govt actually manages to get the law changed after all.

Buma/Stemra was quick to respond and acknowledge that IPs are not reliable to determine infringers. Apparently the IP addresses used for piracy (ending in .246 and .248) cannot be used by employees to access the web internet, so the collection society claims they were spoofed. (Update: their, now removed (cache), statement said internet, instead of web - apologies). Oddly, the IP from which the email with the press announcement was sent, ~.247, hasn't been spoofed. Did I mention they brought up spoofing after a spokesperson first claimed that the IP addresses could have originated from anywhere in the business park even though everything from ~.240 to ~.255 is linked to Buma/Stemra's office?

Sure, this scandal is humiliating, but it's not as embarrassing as the war against innovation. You can use this moment to better understand the human nature of sharing, to understand that downloads don't translate directly to lost sales, and to rethink your lobbying strategy to push for a more sane framework. Or, you know, you can continue to upset fans whilst amusingly tumbling from one scandal into the next.

Meanwhile, it will be interesting to see if there are more pirates in disguise amongst hardline politicians, RIAA & MPAA folks, and other classic opponents of more flexible copyright legislation. You all know where to find the tool now, so perhaps it can happen through a lesson about crowdsourcing. That is, have fun and see what you can find...

The European Patent Organization (EPO) is a strange entity. Despite its name, it has nothing to do with the European Union. Instead, it was set up on the basis of the 1973 European Patent Convention to grant patents under that Convention.

As an independent body whose only reason for existing is to oversee the issue of patents, it has a natural tendency to widen their reach. One of the most hotly-contested areas where that is happening is software patents, which are not granted in Europe "as such" (you can imagine what fun the lawyers have with those two words).

For its latest expansionist moves, the EPO seems to have cast a lustful eye over the world of vegetables. Here's the background to the so-called "broccoli" case from the EPO itself:

British company Plant Biosciences was granted a European patent (EP1069819) for a method for the production of plants whereby the level of a potentially anticarcinogenic substance in broccoli plants can be increased.

French company Limagrain and Swiss group Syngenta filed notices of opposition to the patent in 2003 and maintained their challenge in subsequent appeals. They allege, among other things, that the patent protects an essentially biological method of breeding plants excluded from patentability under the European Patent Convention (EPC) binding on the EPO. The technical board of appeal hearing the two appeals stayed the proceedings and referred questions to the Enlarged Board of Appeal (EBA) with a view to obtaining clarification of the term "essentially biological processes for the production of plants (or animals)" and the associated exception to patentability.

The issue here is that the original patent was issued for plants produced by ordinary, "biological" methods, and those are excluded from patentability. Where things get strange is when Plant Biosciences withdrew part of its claim:

the patentee has proposed to limit its original patent by excluding the breeding methods.

You might think that would be the end of the patent, but no such luck. Here's what the EPO writes in the sentence following the one above (and note our old friend "as such"):

Thus, only the broccoli plants as such remain protected.

This is truly crazy. The "patentee" has withdrawn any claim to a patent on the breeding method -- because, as the two companies objecting pointed out, such biological methods are excluded from patentability. And yet Plant Biosciences still seems to be claiming the result of those unpatentable biological methods, which is essentially what every farmer has obtained since the dawn of agriculture through cross-breeding.

Sadly, it seems likely that the revised claim will be accepted, because the appeal against the patent has been cancelled:

The two firms appealing the patent made their request for a public hearing conditional on whether the board decides not to follow the proposal of the patentee. Therefore, the board will now issue its reasoned decision in writing.

Untangling the logic there, what this means is that the two companies objecting to the patent asked for a public hearing only if the EPO did not accept Plant Biosciences' proposal to limit the patent to the result, not the process. The EPO has accepted that proposal, and so no public hearing will be held, and it therefore seems likely that the modified patent will be accepted. In this way, the EPO will have set a precedent for allowing patents on the result of ordinary biological breeding – and succeeded in extending its patent empire just a little further.

In fact, in addition to this "broccoli" patent, there is already a "tomato" patent, and according to this article on the affair, there are plenty more in the pipeline:

Ruth Tippe from the No Patents on Life! Initiative said that further patents with claims on bread, flour and noodles (EP1331845) and cucumber (EP1433378) are also due to be granted. "The EPO is about to grant further patents very soon," she said. "For example, on 2 November a patent will be granted to Bayer claiming cucumber derived from conventional breeding."

Indeed, given the extremely low bar for patentability that the EPO is setting here, it seems almost inevitable that there will be a mad rush to patent vast swathes of the vegetable kingdom before anyone else does.

What's worrying about this is not just the fact that all kinds of key foodstuffs produced by conventional breeding may end up patented, but the complete lack of any sensible logic from the EPO in allowing them. It emphasizes once again the unaccountability of an independent organization whose chief priority is granting patents, rather than seeking to serve the public interest -- as one subject to democratic checks might be.

Taken together with the EPO's continual weakening of the ban on software's patentability, this latest episode suggests that it is time to bring the EPO to heel, and to make it accountable to the European people whose name it bears.

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Last Thursday, as many of us in the US were getting ready for a nice turkey dinner, the European Court of Justice issued a very nice ruling we should all be thankful for, saying that it is against EU law to require an ISP to set up a filtering system to prevent copyright infringement.

EU law precludes the imposition of an injunction by a national court which requires an internet service provider to install a filtering system with a view to preventing the illegal downloading of files.

Such an injunction does not comply with the prohibition on imposing a general monitoring obligation on such a provider, or with the requirement to strike a fair balance between, on the one hand, the right to intellectual property, and, on the other, the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information.

We had mentioned this was likely earlier this year, when the Advocate General had recommended such a ruling, and now the court has agreed. The specific case involved a fight between Belgian anti-piracy organization/collection agency SABAM and ISP Scarlet. A Belgian court had ruled that Scarlet had to implement a filter that would magically end infringement, or it would face "periodic penalty." Of course, that's an impossible request. The courts ruling says that a copyright holder can file for an injunction, but it must "respect the limitations" of EU law, including a prohibition on "general monitoring of information" that goes over an ISP's network.

In this regard, the Court finds that the injunction in question would require Scarlet to actively monitor all the data relating to each of its customers in order to prevent any infringement of intellectual-property rights. It follows that the injunction would impose general monitoring, something which is incompatible with the E-Commerce Directive. Moreover, such an injunction would not respect the applicable fundamental rights.

The court also makes a good point. While intellectual property should be respected, nothing in the law says it should be "absolutely protected" in such a way that tramples many other rights. It seems that many supporters of more stringent copyright laws always seem to forget this point. They don't much care about the collateral damage.

Neelie Kroes is that rare thing: a politician who actually seems to understand digital technologies. Before she became the European Commissioner for Digital Agenda, her current post, she was European Commissioner for Competition, and in that capacity made a speech about open standards in 2008 that included the following interesting statements:

It is simplistic to assume that because some intellectual property protection is good, that such protection should therefore be absolute in all circumstances.

and

if we extend intellectual property protection for technology, then we should only do so when it is justified under intellectual property principles, i.e. on the basis of evidence that such extension will lead to more innovations and will therefore promote consumer welfare.

Those comments were about problems with the patent system, and now Kroes has brought her frankness to bear on copyright:

let's ask ourselves, is the current copyright system the right and only tool to achieve our objectives? Not really, I'm afraid. We need to keep on fighting against piracy, but legal enforceability is becoming increasingly difficult; the millions of dollars invested trying to enforce copyright have not stemmed piracy. Meanwhile citizens increasingly hear the word copyright and hate what is behind it. Sadly, many see the current system as a tool to punish and withhold, not a tool to recognise and reward.

That's pretty stunning stuff for an EU Commissioner to be saying, given the European Commission's whole-hearted support for ACTA, and its plans for IPRED 2. Kroes goes on:

We need to go back to basics and put the artist at the centre, not only of copyright law, but of our whole policy on culture and growth. In times of change, we need creativity, out-of-the-box thinking: creative art to overcome this difficult period and creative business models to monetise the art. And for this we need flexibility in the system, not the straitjacket of a single model. The platforms, channels and business models by which content is produced, distributed and used can be as varied and innovative as the content itself.

Again, that focus on new business models rather than ever-more punitive copyright enforcement is a refreshing recognition by a very senior European politician of the real problem facing the creative industries: their failure to adapt to the vastly-different business landscape created by the Internet. Kroes picks up on that theme in her conclusion:

There are many new ideas out there – ideas, for example, like extended collective licensing as practised in Scandinavia, or other ideas that seek to both legitimise and monetise certain uses of works. Are these ideas the right ones to achieve our goals? I don't know. But too often we can't even try them out because of some old set of rules made for a different age – whether it is the Berne Convention, the legislation exceptions and limitations on the VAT Directive or some other current law. So new ideas which could benefit artists are killed before they can show their merit, dead on arrival. This needs to change.

I can't set out for you now what the model should be and indeed it's not the kind of model that should be developed from the centre. Rather we need to create a framework in which a model – or indeed several models – can develop organically, flexibly, in ways that support artists.

I see how some European stakeholders see with horror the arrival of Netflix, or the expansion of iTunes. We need to react, not to be paralysed by fear. Let's take chances. As Zygmunt Bauman put it, "the function of culture is not to satisfy existing needs, but to create new ones".

So that's my answer: it's not all about copyright. It is certainly important, but we need to stop obsessing about that. The life of an artist is tough: the crisis has made it tougher. Let's get back to basics, and deliver a system of recognition and reward that puts artists and creators at its heart.

It's tremendously good news that Kroes has not only recognized these problems but is prepared to articulate them publicly. It suggests that at least someone within the European Commission gets it. Too bad, then, that Kroes seems to be as exceptional in that respect as in her grasp of the underlying digital technologies that are driving these huge changes.

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I first got online in the days before the web existed, and spent much of my time on Usenet, that group of message boards that was useful for discussions of all types. While obviously much of those conversations moved to the web or email over the years, it's still pretty ridiculous to see the entertainment industry continue to attack Usenet and basically act as if all of Usenet is illegal. As we noted a little over a month ago, a court in the Netherlands sided with anti-piracy group BREIN, and ordered Usenet provider News-Service (NSE) to wave a magic wand and somehow figure out which Usenet posts were infringing and which weren't. Not surprisingly, that's impossible, and NSE has announced that it's just shutting down entirely instead. NSE was the largest Usenet provider in Europe. And now it's dead. Because the entertainment industry refuses to adapt, and thus blames the technology for how the technology is used, a useful (legal) service is gone. For what it's worth, NSE will continue to appeal the court's ruling... but only on principle. As an operating effort, it appears NSE is dead. Another one killed by the entertainment industry.

In a major ruling from the European Court of Justice, stem cells have been declared unpatentable in Europe. This is somewhat similar to the ongoing fight in the US over whether or not genes are patentable. Here, the ECJ noted that using stem cells for diagnostic purposes may be patentable, but the simple process of separating a stem cell from a human embryo itself, is not patentable. As with genes, I think it's the right decision that such things should not be patentable.

What I find unfortunate, however, is that confused scientists are attacking this decision, claiming that without patents, there will be no investment in stem cell research. It will be interesting (and something of a natural experiment) to determine if that's true. I'm going to guess that the end result will not be what these scientists are predicting. While investment from some big pharma firms may decline, I would bet that the actual usefulness of stem cells is about to go up. Take this complaint for example:

"We are funded to do research for the public good, yet prevented from taking our discoveries to the marketplace where they could be developed into new medicines.

"One consequence is that the benefits of our research will be reaped in America and Asia."

That's from Professor Austin Smith of the Wellcome Trust Centre for Stem Cell Research, University of Cambridge. But it's also totally bogus. Nothing in this ruling prevents anyone from taking the discovers to the marketplace where they can be developed into new medicines. This is a fallacy. Professor Smith might want to look up the history of the chemical and dye industries (many of which became today's pharma industry) in Switzerland and Germany when patents were either not allowed or greatly limited -- and learn that it actually helped bring more products to market because everyone could build on the research and do more with it to make it useful. You can still bring products to market, and the incentive is to keep innovating to bring even better offerings to market. And, by not limiting who can make use of these stem cells, you get much greater research efforts and much faster advancement.

Furthermore, as we've seen in the past, many research scientists have actually been complaining about how stem cells patents had massively hindered their research. Perhaps if Smith took the time to talk to some of those researchers he might realize the benefit from keeping stem cells and other genetic material unpatentable.

If the goal truly is to improve "the public good," then this is a fantastic ruling. It means that more smart people can do more with stem cells to make them useful.

A few weeks back, Techdirt posted a story about a European campaign group called "Europe vs. Facebook", which is trying to find out exactly what information Facebook holds about its users. It is doing this using European data protection laws, thanks to the fact that Facebook' s international headquarters are in Ireland.

The group's founder, Max Schrems, received a reply to his request for the data Facebook held about him in the form of a CD-ROM storing over 800 pages. But looking through them, Schrems noticed that important information was missing, and so contacted Facebook again, asking for the extra details. But Facebook refused:

To date, we have disclosed all personal data to which you are entitled pursuant to Section 4 of the Irish Data Protection Acts 1988 and 2003 (the Acts).

Please note that certain categories of personal data are exempted from subject access requests. Pursuant to Section 4(9) of the Acts, personal data which is impossible to furnish or which can only be furnished after disproportionate effort is exempt from the scope of a subject access request. We have not furnished personal data which cannot be extracted from our platform in the absence of disproportionate effort.

It seems hard to believe that a sophisticated, leading-edge company like Facebook can't pull out all the information about one user – the basic node of the social network - without "disproportionate effort", but that's not the real issue here. Alongside all that terrible effort, Facebook cited another reason for refusing to give Schrems the missing details:

Section 4(12) of the Acts carves out an exception to subject access requests where the disclosures in response would adversely affect trade secrets or intellectual property. We have not provided any information to you which is a trade secret or intellectual property of Facebook Ireland Limited or its licensors.

Claiming that certain aspects of your personal data is "a trade secret or intellectual property of Facebook Ireland Limited or its licensors" seems pretty extraordinary. Schrems is not letting things rest there, though, and has contacted the Irish Data Protection Commissioner to pursue the matter further. Meanwhile, Facebook has released a statement on the matter:

We are cooperating fully with the Irish Data Protection Commissioner who will come to a view on Mr Schrems’ complaint in due course.

I can hardly wait for that view - and for Facebook's response if it requires the release of some "proprietary" data.

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The EU Court of Justice is now considering a lawsuit between SAS and World Programming Ltd. over the extent of copyright protection in software. We wrote about this last year, when a UK court ruled against SAS, but now it's been kicked up to the EU Court of Justice. Everyone seems to agree that WPL copied a feature from a SAS product, but did so in part by looking at SAS's manual, but without access to the software itself, let alone the source code. Basically, WPL just found out about a feature, and created it on its own. It's not even quite reverse engineering (which is generally considered legal), because they didn't make it compatible with SAS's offering -- they just recreated the same basic feature.

It's hard to see how this should be copyrightable. Can you imagine just how stagnated the software industry would become if you could copyright a feature on a piece of software, such that no one else could use it? Hopefully the European Court recognizes the problems such an extreme interpretation of copyright law would create.

With all the talk of the EU's decision to retroactively extend copyright from 50 to 70 years, despite no evidence that this is needed or useful, very little attention was paid to the massive harm this causes. Multiple studies showed that such an extension wouldn't provide much, if any, money to musicians, but most of the money would actually be diverted from artists to major record labels. And it gets even worse. Copycense points us to some reports about how copyright extension is guaranteeing that plenty of classical music won't be heard:

Last week, the EU ratified a new law extending copyright in music recordings to 70 years. That, argued Bob Stanley, was a bad thing for most musicians, and for music itself: much would now remain locked in the vaults of the big record companies. Stanley had been looking at the world of rock and pop, but PristineAudio, who runs a label specialising in out-of-copyright recordings, explained the ruling had far-reaching implications for classical music as well. "One major release of ours earlier this year illustrates well something this new act most certainly will kill off. A historic concert given in 1960 by British conductor Leopold Stokowski with the Philadelphia Orchestra … fell into the public domain in Europe [in 2011], and we were able to transcribe the conductor's own copies of the master tapes, prepared for him by the radio station, and release in the highest quality a concert that has long been of great interest to collectors.

"The irony of copyright law as it stands is that historic orchestral broadcasts are often almost impossible to reissue by anyone, until they pass into the public domain. The standard contract with an orchestra would allow for an initial broadcast and then a single repeat transmission. Thereafter, a new contract would need to be drawn up with the musicians for any further use of that recording. Trying today to track down the performers (or their estates) for a symphony orchestra that existed in 1960 is well-nigh impossible."

That's not the "irony" of copyright. It's the design of copyright, which has always been about granting monopolies to a few players, while limiting the market. It's a protectionist plan designed to protect a few industry leaders, rather than do what it says on the face of the box: promoting progress by increasing cultural output.