Overblocking is not a new problem -- over two years ago, Techdirt wrote about an instance where Homeland Security took down 84,000 innocent sites at a stroke -- so you might have thought that those employing this blunt instrument would take a little more care these days. However, things seem to be getting worse, not better. In Australia, the Australian Securities & Investments Commission (ASIC) has just scored a whopper:

The largest number of sites censored when attempting to block one particular site ASIC believed was defrauding Australians was 250,000. Of these, ASIC said about 1000, or 0.4 per cent, were active sites. It said the 249,000 other sites hosted "no substantive content" or offered their domain name up for sale, rather than hosting a fully-fledged active site.

I wonder how the ASIC established that 249,000 had "no substantive content". I can't believe it really checked all of them. And that's the big problem with overblocking: when huge numbers of sites get taken down by mistake, there's no way of telling what just fell off the Web, and what obscure but possibly important information is no longer available.

At least ASIC realizes that its current ham-fisted approach isn't acceptable:

ASIC told senate estimates in its opening statement that it was now examining how it could ensure only a site's specific domain name was blocked and ways it could alert the public to a site being blocked via a pop up page. It was also examining ways such a page could indicate why access was blocked and to whom queries could be made to dispute a block.

That's good, but maybe it would have been better if it had explored those options before shutting down nearly a quarter of a million innocuous sites by mistake.

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One of the key flaws with the data retention schemes being proposed by the UK and elsewhere, supposedly to catch terrorists and serious criminals, is that they won't work. It is trivially easy to avoid surveillance by using encrypted connections, for example those provided by The Onion Router (Tor). This means that the only people who are likely to end up being spied on are innocent members of the public.

According to this article in Crikey, the secret services in Australia have apparently woken up to this fact; but rather than convince their government that data retention is therefore an expensive and intrusive waste of time, they have decided to take the damage to the next level:

In a major admission, the Attorney-General's Department has revealed Australia's intelligence and law enforcement agencies are seeking the legal power to break into internet routing encryption services such as Tor, after admitting the centerpiece of its proposed national security reforms, data retention, will be "trivially easy" to defeat.

This is, of course, an incredibly stupid idea, for reasons that one of Tor's developers, Jacob Appelbaum, explains well in the Crikey piece:

"If they wish to break such [encrypted] services, they ensure that when they use such services, they will also be insecure -- this ensures again that only criminals will have privacy, regular people -- including the police fighting crime -- they will be left out of having strong privacy. This opens business people up to industrial and economic espionage. It also promotes the idea that to make ourselves more secure, we should weaken our networks and add the very backdoors that most attackers work day and night to create," he said.

The plan to create detailed, centralized stores of high-value information about people's Internet and telephone usage already exposes the public to an elevated risk of having personal information accessed and misused. Moving beyond that to break key encrypted Internet services like Tor and virtual private networks (VPNs) would deal another serious blow to online privacy and business confidentiality.

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Cultural hit that it is, I suppose it's not surprising that we've talked several times about the HBO series Game Of Thrones, including its status as the most pirated show on television. I can't speak to the merits of the show, having given it up after the first episode, but it was encouraging to hear HBO talk about how wider distribution options could be used to combat piracy, even if their implementation was somewhat lacking. To the shock of no one, of course, these changes haven't immediately eradicated piracy of the show's episodes. To no one that is except the American ambassador to Australia, Jeffrey Bleich, who is apparently willing to throw his official weight around in favor of this one particular show.

See, it was on Bleich's Facebook page, the one that identifies him as Ambassador Bleich, where he posted a rant entitled "Stopping the Game of Clones."

"As the Ambassador here in Australia, it was especially troubling to find out that Australian fans were some of the worst offenders with among the highest piracy rates of Game of Thrones in the world," wrote Ambassador Bleich. "While some people here used to claim that they used pirate sites only because of a delay in getting new episodes here, the show is now available from legitimate sources within hours of its broadcast in the United States."

Er, okay. Perhaps I'm in the minority here, but the post would have seemed ho-hum had he not decided to come out so strongly in favor of one particular show. This isn't a screed against piracy in general, but against piracy of GoT in particular. Seems kind of strange, especially when he then explained how he understood why it was pirated in the first place.

"I realize that fans of Game of Thrones who have used illegal file-sharing sites have reasons," continued Ambassador Bleich. "They will say it was much easier to access through these sites, or that they got frustrated by the delay in the first season, or their parents wouldn't pay for a subscription, or they will complain about some other issue with copyright laws." Continuing, he added, "But none of those reasons is an excuse—stealing is stealing."

That's true, stealing is stealing. And infringement is infringement, and strawberry yogurt is strawberry yogurt. Unfortunately, stealing isn't infringement, and an American ambassador purporting to speak to Australians on our behalf should really know the difference. Add to that a misunderstanding, apparently, of how fans of the show who were initially spurned with delayed, inefficient, or non-existent legitimate ways to get the content aren't going to give up the better methods they found for consumption now that HBO is kinda-sorta providing them with slightly less delayed, slightly more efficient, slightly more existing methods and we have the full-blown makings of a confused diatribe by a public official over a single cable network show. Kotaku sums things up nicely.

This is swell and all, but doesn't he have more important things to worry about than Australians pirating Game of Thrones? He is a U.S. Ambassador. Like, a real one, nominated by the President of the United States. And he's talking about Game of Thrones on the internet. Your tax dollars at work!

Or not at work, as the case may be.

The whole point about adopting Creative Commons licenses is to make it easier for people to share and use works released under them. Sometimes, though, you get the impression that certain organizations adopting these licenses would rather that didn't happen, as in the following case from Australia, reported by IT News:

The Australian Bureau of Statistics has released the latest census data for free under a Creative Commons license but appears to be steering people towards a $250 mailed out DVD rather than making it easy to download the information directly over the internet.

Programmer and freelance journalist Grahame Bowland who first noticed it, said the government agency is going to great lengths to discourage people from downloading the files directly by dint of a convoluted site layout and Javascript functions that obfuscate file paths.

The post then goes on to describe in detail some of the attempts to make it difficult to download all of the census data, including a hard-to-find registration page, a complex matrix of download options, and Javascript code that does stuff like this:

// Function: guidGenerator
// Description:returns a pseudo-random GUID
//This is appended to a url for 2 reasons
//1. to make the URL unique, so that the browser always gets it and doesn't use a cached version
//2. to make a URL look like its got a unique key, in a naive attempt to fool a not-so-wily hacker
//into thinking they can't download a datapack directly if they know the URL pattern, because they
//need a unique key.

Notice how anyone who might want to download datapacks directly is branded a hacker. That's a worrying attitude, since it seems to equate people who want to take advantage of the CC license to explore the census without jumping through the site's hoops as shady subversives (I doubt the comment used the term "hacker" in its more positive sense).

As the IT News story suggests, the motivation for this obfuscation seems to be to encourage people to pay AU $250 (about US $257) for the DVD version instead. To save others from having to deal with the unhelpful Web site, Bowland generously stumped up the $250 himself, and made the full census database freely available as a torrent, as is perfectly legal under the CC-BY license. This shows perfectly why it is pointless trying to make it hard for people to download content that is CC licensed: once anyone has obtained a copy, they can then make it available in a more convenient form, neatly by-passing forlorn attempts to control something that has been set free forever.

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Last year, we noted that Australia was beginning the process of copyright reform, and it appeared that the Australian Law Reform Commission (ALRC) was asking the right kinds of questions. Among the major concerns that some commenters raised was the lack of fair use under Australian copyright law. When a similar process took place in the UK, it was decided not to try to add fair use to UK law. The entertainment industry argued, ridiculously, that fair use would lead to too much litigation.

Thankfully, it appears that Australia is willing to go that extra step. There was apparently a meeting held yesterday by the Australian Law Reform Commission, in which they revealed some of the proposed reforms, which were to be officially released in a paper at the end of May. We've heard from some people who attended that the information revealed in the meeting was supposed to be kept secret, but it appears that the Australian Law Library Association jumped the gun with some thankfully revealing tweets. The key tweet is the one that reveals the ALRC will be recommending fair use be added Down Under. This is big and excellent news. Of course, now watch closely as the legacy entertainment industry throws a complete hissy fit about how awful fair use will be in Australia. Stay tuned...

There have been many posts on Techdirt about the copyright industry's hatred for new technologies that eventually turned out to be important sources of additional revenue -- the VCR being perhaps the most famous example. Here's a splendid column from Adam Turner in the Sydney Morning Herald about the same thing happening again in Australia.

As he points out, last year Australia saw a 4% growth in music sales, which outpaced the rest of the world, whose much lower 0.3% growth we discussed recently. In other words, if anything, the Australian recording companies should be celebrating the present and optimistic about the future. Instead, they are once more frightened by some technological developments that will in fact help them: an upgrade to the country's Internet infrastructure. Here's how Turner puts it:

As the National Broadband Network [NBN] rolls out across the country, it's going to make music and video downloads more accessible to all Australians. It's time for the music industry to learn the lessons of the past decade and seize the initiative. But it seems you can't teach old gucci-clad dogs new tricks.

"If more action isn't taken by the government and ISPs to curb piracy levels the NBN could have disastrous results for the local industry," according to a major report from the International Federation of the Phonographic Industry. "All Australian content industries" will suffer if pirates are allowed to run rampant on the NBN, added Dan Rosen -- CEO of Australian Recording Industry Association.

It's really extraordinary that even in the face of figures that suggest digital sales are taking off, the recording industry is still demanding harsher measures against people who share unauthorized copies of files online, as if that ever worked -- or ever could work. For, as Turner rightly says:

Ramping up the war on its customers won't see people start buying more music. It's a war the music industry can't win, but it seems determined to die trying.

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Techdirt has been writing for a while about China's policy of providing incentives to file patents -- regardless of whether those patents have any worth. That's led to a naïve celebration of the large numbers now being granted, as if more patents corresponded to more innovation.

Until now, this problem of junk patents has been confined to China, and the companies that operate there. But last year China went even further with its subsidy system, offering to pay the fees for filing overseas, presumably to encourage Chinese companies to build up patent portfolios in foreign markets that can be used for defensive or even offensive purposes. We're now beginning to see the effects of this further distortion to the patent system, as Australian businesses struggle with the flood of new patents there. The Patentology blog explains:

A Chinese government scheme providing financial incentives for small and medium sized enterprises, public institutions or scientific research institutions appears to be resulting in abuse of the Australian patent system, and the 'dumping' of numerous low-quality innovation patents on the Australian Register.

These 'junk' patents are not being examined or certified. They therefore represent no more than potential enforceable rights. Even so, they generate costs to companies operating legitimately in Australia, which may need to obtain advice on the likely scope and validity of these patents in order to avoid possible infringement. In extreme cases, the existence of junk patents could result in an Australian business choosing not to take the risk of bringing a new product to market, even though the Chinese owner of a patent is not itself offering any products or services in this country.

This is a perfect example of how granting more patents actively harms innovation. Thanks to China's incentive scheme, which encourages patent quantity rather than quality, Australian businesses must now spend more time searching through them all to see if they are likely to affect their own products, deciding if they are a threat, and what to do about it. All that costs money that could have been spent on real innovation, developing new products. Thanks to the patent system, and China's new incentives, that money will now go to the lawyers.

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While the US Supreme Court will soon be weighing in on whether or not genes are patentable in the Myriad Genetics case, we've also been following a similar case in Australia. There, a bunch of cancer patients took Myriad to court, arguing that the patent on BRCA1 is invalid (this same gene is part of the US case). Unfortunately, the court has decided that genes are, in fact, patentable if they've been isolated. This is always the key point of contention with gene patent supporters. They claim that it's the fact that they can separate the gene that makes their work patentable. In some ways this is an odd sort of "sweat of the brow" argument for patents -- and here, the judge is buying the argument completely. He says that patenting genes in the human body would be a problem... but isolating them magically makes it a different story.

There is no doubt that naturally occurring DNA and RNA as they exist inside the cells of the human body cannot be the subject of a valid patent. However, the disputed claims do not cover naturally occurring DNA and RNA as they exist inside such cells. The disputed claims extend only to naturally occurring DNA and RNA which have been extracted from cells obtained from the human body and purged of other biological materials with which they were associated.

This still seems ridiculous to me. If others figure out how to get an isolated gene as well, why should that be subject to a patent? Hopefully this is not a preview of the US Supreme Court's upcoming ruling.

Back in 2007, we wrote about a ridiculous lawsuit down in Australia, in which the Australian Consumer and Competition Commission (ACCC) was suing Google because other companies had purchased ads deemed to be "misleading" on Google. As we noted at the time, the ACCC seemed really confused about how Google worked, and the difference between being a self-service platform/tool and being a full-service advertising media company. While the ACCC ran into some trouble early on (its arguments were deemed "incomprehensible" by the first court) they actually won on appeal. The good news, however, is that the case moved up another level, and the High Court has overturned that decision with a pretty clear statement (pdf) on the basic issue:

Ordinary and reasonable users of the Google search engine would have understood that the representations conveyed by the sponsored links were those of the advertisers, and would not have concluded that Google adopted or endorsed the representations. Accordingly, Google did not engage in conduct that was misleading or deceptive.

This may not seem like a big deal, but as Ali Sternburg rightly explains, having strong protections for secondary liability is a huge part of why the internet is so useful and innovative. In simple terms, we don't blame third party service providers for misuses by their users, because that takes away massive incentives for the service providers to innovate in the first place. It chills innovation in a major way.

Safe harbors from secondary liability are essential for Internet platforms and businesses, and it is encouraging when other countries affirm these principles.

Unfortunately, some of these safe harbors have come under increasing attack over the past few years, as people who feel wronged go the Steve Dallas route, and assume that if they've been wronged, it makes sense to sue the company with the deepest pockets, rather than those actually responsible. But, when you do that, you create incredible incentives to effectively shut down any open platforms, because the threat of liability is just too risky. The stifling effects are enormous, whereas the benefit from protecting platform providers from liability for users' actions is tremendous. And, no, this doesn't mean that illegal activity is allowed. It just means that liability is properly focused on those who actually break the law.

Last year we wrote about the German police using malware to spy on members of the public. Now ASIO, Australia's national secret service, has come up with a new variant on the idea:

A spokesman for the Attorney-General's Department said it was proposing that ASIO be authorised to ''use a third party computer for the specific purpose of gaining access to a target computer''.

The problem seems to be that even suspected terrorists are getting the hang of this security stuff:

The department said technological advances had made it ''increasingly difficult'' for ASIO to execute search warrants directly on target computers, ''particularly where a person of interest is security conscious.''

So the idea seems to be to infect the computer of someone that the alleged terrorists know, and then use that trusted link to pass on malware:

Australians' personal computers might be used to send a malicious email with a virus attached, or to load ''malware'' onto a website frequently visited by the target.

That probably seemed like a really clever ruse to the people who thought it up, but it overlooks some basic flaws.

First, that once ASIO has taken control of an intermediary's computer it can do anything -- including poking around to see what's there. After all, if intermediaries are known to suspected terrorists, it's possible that they too might be terrorists.

The authorities are insisting that the warrant to break into somebody's computer would not authorize ASIO to obtain "intelligence material" from it. But you don't have to be clairvoyant to predict that at some point in the future, "exceptional" circumstances will be invoked to justify doing precisely that: once security services start down a slippery stop, they never seem to be able to stop.

Secondly, as the German experience shows, if a computer has been compromised by malware in this way, it's not just the government agencies that can take control: anyone who has obtained the malware and analyzed it will be able to look for ways to send their own instructions. That could leave innocent members of the public vulnerable to privacy breaches and economic losses that would be directly attributable to the spy agency's digital break-in.

Finally, this approach seems to overlook the fact that presumed terrorists are unlikely to be best pleased with any person that unwittingly sends them government malware. If they notice and really are ruthless terrorists, they might decide to take revenge on that person and his or her immediate circle of family and friends. Either the Australian spy agency hasn't really thought this through, or it is being extremely cavalier with the lives of the members of the public it is supposed to protect.

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