How Low Can Drones Go?

from the question-questions-questions dept

As we've pointed out in a few stories, drones aren't necessarily something to worry about. Like any technology, they can be used for good and bad purposes, and shouldn't be dismissed out of hand. But determining where exactly the line between acceptable and unacceptable lies is tricky, as the following story from the Capitol Hill Seattle blog shows:

This afternoon, a stranger set an aerial drone into flight over my yard and beside my house near Miller Playfield. I initially mistook its noisy buzzing for a weed-whacker on this warm spring day.

So how close does a drone have to be to someone's home before it becomes intrusive? Clearly, at some height the air is part of the sky commons that belongs to everyone, as a famous 1946 US Supreme Court decision laid down:

The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea.

The post continues:

After several minutes, I looked out my third-story window to see a drone hovering a few feet away. My husband went to talk to the man on the sidewalk outside our home who was operating the drone with a remote control, to ask him to not fly his drone near our home. The man insisted that it is legal for him to fly an aerial drone over our yard and adjacent to our windows. He noted that the drone has a camera, which transmits images he viewed through a set of glasses. He purported to be doing "research". We are extremely concerned, as he could very easily be a criminal who plans to break into our house or a peeping-tom.

Those sound like reasonable concerns. So does that mean that drones with cameras need to fly further away from the property of others than those without, so that the images they capture don't invade people's privacy? How might we set that distance? These and related questions are starting to be posed more frequently, as more drones enter our skies. At some point, we will need to start coming up with some answers that most people find reasonable.

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Why Even Good Hospitals And Doctors Are An Obstacle To Better, Cheaper Healthcare

from the perverse-incentives dept

As we noted in the context of antibiotics, it's well recognized that financial incentives cause the pharmaceutical industry to engage in research that tends to maximize profits rather than maximizing the health of the public. But a widely-circulated article in the Washington Post reveals another kind of bias that may stop us from adopting better ways of keeping people healthy that would also reduce healthcare costs.

This flows from the fact that countries with advanced healthcare systems are no longer dealing mainly with infectious diseases like turberculosis, as they once did, but with chronic ones like heart disease, diabetes, AIDS and many cancers. The key here is how best to manage the disease, particularly among elderly patients, and for that, doctors in hospitals aren't necessarily the best way:

Medicine has been so focused on what doctors can do in the hospital that it has barely even begun to figure out what can be done in the home. But the home is where elderly patients spend most of their time. It's where they take their medicine and eat their meals, and it's where they fall into funks and trip over the corner of the carpet. It's where a trained medical professional can see a bad turn before it turns into a catastrophe. Medicine, however, has been reluctant to intrude into homes.

One company, Health Quality Partners, has focused on doing precisely that:

The program enrolls Medicare patients with at least one chronic illness and one hospitalization in the past year. It then sends a trained nurse to see them every week, or every month, whether they're healthy or sick. It sounds simple and, in a way, it is. But simple things can be revolutionary.

The results certainly are:

According to an independent analysis by the consulting firm Mathematica, HQP has reduced hospitalizations by 33 percent and cut Medicare costs by 22 percent.

And yet Medicare is planning to shelve this pilot program, citing various bureaucratic reasons why it can't continue. Although some supporters of the home-based system maintain that it would be possible to overcome these problems, there remains a more fundamental obstacle to rolling out the Health Quality Partners approach more widely:

Hospitals make money when they do more to patients. They lose money when their beds are empty. Put simply, Health Quality Partners makes hospitals lose money.

So again we seem to be confronted by perverse incentives at the heart of our current healthcare. The better and cheaper way would mean scaling back key parts of the system by instituting regular home visits by nurses, thus reducing the number people sent into hospitals to be treated by physicians. That implies taking on very profitable and thus very powerful business interests, including the doctors themselves. Given that resistance, and Medicare's apparent reluctance to force change by backing the Health Quality Partners system, it seems likely that we will be stuck with an inferior, more costly approach to treating chronic diseases despite knowing what looks like a much better way to do it. Some might call that pretty sick.

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EU Commission Sued For Refusing To Reveal Trade Agreement Documents They Shared With Lobbyists

from the right-to-know dept

A recurrent theme here on Techdirt is the lack of transparency when international agreements and treaties are being drawn up. That's increasingly recognized not just as problematic, but simply unacceptable in an age when the Internet makes it easy to provide both access to draft documents and a way for the public to offer comments on them.

Despite this growing pressure, nothing much has happened on either side of the Atlantic as far as providing greater openness for major negotiations is concerned. Perhaps frustrated by this lack of movement, the transparency organization Corporate Europe Observatory decided to take legal action against the European Commission back in February over the secret trade talks between the EU and India.

As the detailed history of this case (pdf) explains, the European Commission was apparently quite happy to pass on copies of certain documents to industry associations, but when Corporate Europe Observatory asked for the same, they only received censored versions. The lawsuit accuses the European Commission of discriminating in favor of corporate lobby groups and of violating the EU's transparency rules. As the Corporate Europe Observatory asks:

how can documents that the Commission has already shared with the business community at large suddenly become confidential and a threat to the EU's international relations when a public interest group asks for their disclosure? This is the core question raised by the lawsuit.

And it points out:

What is at stake in the lawsuit is whether the Commission can continue its habit of granting big business privileged access to its trade policy-making process by sharing information that is withheld from the public. This practice not only hampers well-informed and meaningful public participation in EU trade policy-making, it also leads to a trade policy that, while catering for big business needs, is harmful to people and the environment in the EU and the world.

The European court will be handing down its verdict on 7 June. If the judges side with transparency, it could have a major impact on how the imminent TAFTA/TTIP negotiations between the EU and US are conducted. If they don't, then the battle for the public's right to know what is being agreed in its name will doubtlessly continue.

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Saudi Religious Police: Anyone Using Twitter 'Has Lost This World And His Afterlife'

from the that-serious,-huh? dept

A couple of days ago Techdirt wrote about how Murong Xuecun, a well-known user of the Chinese microblog Sina Weibo with over a million followers, had his account closed down suddenly. Murong has now written a fine article about the background to what happened: he points out that the deletion of his account looks to be part of a larger clampdown on the use of microblogging services by well-known figures who are critical of the Chinese government. The problem for the latter is that these services are becoming a real channel for free expression and less-than-perfectly-censored information:

Individuals are silenced on daily basis, and the pool of sensitive words grows by the hour: Liu Xiaobo, Gao Xingjian, Ai Weiwei, Wei Jingsheng, Liao Yiwu, Ma Jian, Mo Zhixu, Xiao Shu … The list goes on. It now includes me, as well as two more scholars who have since been silenced: Wu Wei and Wu Zuolai, whose accounts were deleted on the morning of 13 May. Lurking in the shadows, the "relevant organs" carry out such work as part of their daily routine, and expect people to remain silent. They have perhaps failed to foresee that in the age of Weibo, their actions could trigger such a severe backlash. To this, they responded with more censorship.

Given the problems that even China is having with controlling such services, it's no surprise that other nations are getting nervous. Here's a story from the BBC about what Saudi Arabia is doing in an attempt to counter the threat from Twitter:

The head of Saudi Arabia's religious police has warned citizens against using Twitter, which is rising in popularity among Saudis.

Sheikh Abdul Latif Abdul Aziz al-Sheikh said anyone using social media sites -- and especially Twitter -- "has lost this world and his afterlife".

The Saudi authorities are evidently grappling with exactly the same issues as the Chinese government:

Many Saudis have seized on Twitter as the most immediate and effective way to open little windows into a traditionally opaque society.

Recent protests in the Eastern Province have been tweeted and images of human rights activists on trial have been uploaded directly from courtrooms, challenging many taboos.

The situation in Saudi Arabia is complicated by the fact that the well-known Saudi Prince Alwaleed bin Talal bought a $300 million stake in Twitter back in 2011. That doubtlessly explains in part the following comments he made recently using his own Twitter account, quoted in an article from CNN:

Dear Saudi Telecommunication Authority, social media is a tool for the people to make the government hear their voices. Just thinking of blocking them is a losing war, and a way to put more pressure on the citizens

As Twitter continues to gain market share -- already standing at a massive 51% of all Internet users in Saudi Arabia according to the CNN piece -- it will be interesting to see whose view prevails there: that of the religious police or a secular prince.

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Kiwis Want To Spy On All Communications, VPNs, And Be Able To Use Secret Evidence Against You

from the no-justification-needed dept

Although New Zealand's decision not to allow patents for programs "as such" was welcome, other moves there have been more problematic. For example, after it became clear that the New Zealand intelligence service, the Government Communications Security Bureau (GCSB), illegally wiretapped and spied on Kim Dotcom, the New Zealand government announced that it would change the law so as to make it legal in the future to snoop on New Zealanders as well as on foreigners. Judging by a major new bill that has been unveiled, that was just the start of a thoroughgoing plan to put in place the capability to spy on every New Zealander's Internet activity at any moment. Here's an excellent analysis of what the bill proposes, from Thomas Beagle, co-founder of the New Zealand digital rights organization Tech Liberty:

The TICS [Telecommunications (Interception Capability and Security)] Bill is a replacement for the Telecommunications (Interception Capability) Act 2004. This law forced communications providers (ISPs, telcos, data networks, etc) to provide "lawful intercept" capabilities so that the Police, SIS and GCSB could access communications once they had a suitable warrant. The new bill expands and clarifies these requirements.

However, the addition of the word "security" is the key to what has changed. The new bill now gives the GCSB sweeping powers of oversight and control over the design, deployment and operation of all data and telecommunications networks run by network providers in New Zealand. The stated reasons are to both protect New Zealand's infrastructure and to ensure that surveillance agencies can spy on traffic when required. As part of this, the GCSB will have the power to stop network providers from reselling overseas services that do not provide these capabilities.

As Beagle goes on to explain, this will have a number of implications, including a requirement to build backdoors into all telecoms networks:

From the Bill:

A network operator must ensure that every public telecommunications network that the operator owns, controls, or operates, and every telecommunications service that the operator provides in New Zealand, has full interception capability.

Note that the surveillance agencies still need to have a legally issued warrant (under the Search & Surveillance Act, NZ SIS Act, or GCSB Act) to actually intercept any communications and there are obligations to avoid capturing communications that are not covered by the warrant.

Here's one way that could dramatically impact Internet users in New Zealand:

It then goes on to give the Minister the power to ban the resale of an off-shore telecommunications service in New Zealand if it does not provide interception capabilities. This could stop the resale of foreign-hosted VPNs, instant message services, email, etc.

Another clause could have major implications for Megaupload:

Network operators must decrypt the intercepted communications if they have provided the encryption, but there is no obligation to do so if the encryption is provided by others.

What does this mean for providers such as Mega (file locker) or LastPass (password storage) who have a business model based on the fact that they supply a cloud product that uses encryption but have deliberately designed it so that they can not decrypt the files themselves? This gives users the assurance that they can trust them with their data. Will the government close them down unless they provide a backdoor into the system?

One deeply troubling aspect is the following:

There is also a provision that allows the courts to receive classified information in a court case in the absence of the defendant or the defendant's lawyer. This applies to information that might reveal details of the interception methods used by the surveillance agency or is about particular operations in relation to any of the functions of the surveillance agency, or is provided as secret information from the surveillance agencies of another country. It can also be used if that disclosure would prejudice security of NZ, prejudice the maintenance of law, or endanger the safety of any person.

As Beagle notes:

particularly offensive to civil liberties are the provisions for convicting people based on secret evidence. How can you defend yourself fairly when you can't even find out the evidence presented against you?

He concludes with an important point:

One must ask where the justification for this expansion of power is coming from. Has New Zealand already been materially affected by attacks on our communications infrastructure? It seems clear that while the GCSB may not be that competent at exercising the powers they already have, they have done a fine job of convincing the government that they can handle a lot more.

That's a question that needs to be put to the governments of other countries, like the US and UK, that are also seeking to extend massively their ability to spy on their own citizens. What evidence do they have that such extreme, liberty-threatening powers are actually necessary, and will make the public safer, rather than simply being a convenient way for governments to identify whistleblowers who expose their incompetence and corruption, say, or to spy on those who dare to oppose them?

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Critic Of Chinese Censorship Censored: Microblog With 1.1 Million Followers Deleted

from the maybe-they-won't-notice dept

It will hardly come as a surprise to anyone to learn that a popular writer and well-known critic of China's pervasive censorship system has run into trouble for his views. Fortunately, in this case that doesn't mean getting arrested, but nonetheless involves quite a dramatic slapdown:

The online Sina Weibo microblogging account of Murong Xuecun, one of China's most popular writers and one of the country's foremost critics of censorship, has been deleted from the site, suspected to be part of the government's efforts to crack down on online rumors by targeting high-profile users.

Murong's account, which had more than 1.1 million followers, was taken down from the Twitter-link website on May 11, 2013. His writing as well as his microblogging discusses social issues in contemporary China such as corruption and media censorship.

The Global Voices story quoted above goes on to describe the ways in which some of those 1.1 million followers have reacted, and how many feel that Sina Weibo is diminished by Murong's absence. It also points out that all of his posts have been preserved and are available -- but on the other side of the Great Firewall of China (GFW). Although only those with the requisite technical know-how to tunnel under the GFW using VPNs will be able to access the now-deleted messages, that doesn't mean the Chinese authorities have really won here. After all, using censorship to silence a critic of censorship means that his 1.1 million (ex-)followers now have definitive proof of what he was warning them about.

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Copyright Holders Will Define Details Of UK's Orphan Works Bill, But Not The Public

from the same-old-same-old dept

The UK's new orphan works legislation allows works to be classed as orphans only after a "diligent search" has been conducted to find the owner. The fear expressed by some is that this "diligent" search won't be very diligent, allowing publishers to use materials that aren't orphans. That's actually wrong for a number of reasons, as Techdirt explained recently, but the continuing furor from photographers in particular has been such that the UK's Intellectual Property Office (IPO) felt compelled to issue a document entitled "The Enterprise and Regulatory Reform Act 2013 –Your photos and you" (pdf) explaining how the system would work, and why the fears were unjustified.

However, that document still does not answer the central question of what "diligent" will mean. A post on Out-Law.com provides some information about how this will be addressed:

"The 'diligent search' requirement will be defined through a working group so that it can reflect current best practice across all sectors," a spokesperson for the IPO told Out-Law.com. "This will make sure that any requirements are practical and manageable. The working group will include representation from creators, including the photography sectors, and users such as museums and archives."

Reading that made me wonder who exactly was on this working group, so I contacted the IPO's press office asking for details. Here's the list of organizations they kindly sent me:

Society of London Theatre and Theatrical Management Association
BBC Publishers Content Forum
JISC
National Museum Directors' Council (NMDC)
Copyright Licensing Agency
Musicians' Union
Creators Rights Alliance
British Association of Picture Libraries & Archives
British Equity Collecting Society
Focal
Authors Licensing & Collecting Society
The National Archives
Stop 43
Libraries and Archives Copyright Alliance
The Association of Photographers
British Screen Advisory Council
Publishers Licensing Society
The Association of Illustrators
Society of Authors
Directors UK
Producers Alliance for Cinema & Television
UK Music
Association of Authors Agents

There are two things that struck me about that list. One is the appearance of Stop 43, probably the most vociferous of the photographer groups that have been complaining about the new orphan works law. Let's hope that its presence here, and thus its ability to contribute to the definition of "diligent", means that it drops the rhetoric about how the UK government has "reversed the normal workings of copyright," when that's simply not the case.

The other thing is that in contrast to the two groups representing photographers, there is not a single advocate for the somewhat more populous general public. Of course, that's absolutely par for the course: the public is routinely overlooked whenever it comes to asking "stakeholders" what they think about proposed changes to copyright. The UK's welcome move to liberate hostage works at last would have been the perfect opportunity to break yet more new ground by engaging directly with groups representing the 60 million people whose views are never properly considered. Sadly, that seems not to be happening.

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Once Again Top Downloaders Are Top Spenders, According To UK Gov't Study

from the how-many-times-does-it-have-to-be-said? dept

If there's one clear trend that has emerged in recent years, it's that those who download and share unauthorized copies of files the most also tend to be the most avid purchasers of similar material. This completely negates the copyright industry's rhetoric that people who share files are just a bunch of freeloaders, suggesting instead that it's more a matter of sampling materials before going on to buy. It also implies that instead of seeking to punish such downloaders, the copyright companies should actually try to nurture them as potentially their best customers.

Even worse for the maximalists is that much of the new research revealing this trend is being conducted not by groups wearing eye patches and sporting wooden legs, but by government bodies keen to better understand the underlying dynamics of the online world. We wrote about one such study back in November, which had been commissioned by the UK regulatory body Ofcom -- the epitome of dull respectability. A follow-up report with the ponderous title "Online copyright infringement tracker benchmark study 'Deep Dive' analysis report" (pdf) has now appeared offering additional insights into why people download and stream unauthorized copies, how much they spend anyway, and what might encourage them to spend even more. The large sample size -- over 10,000 people -- makes its findings particularly valuable.

Here's one of the key results:

The Top 10% Infringers accounted for just 1.6% of the 12+ internet user population, but were responsible for 79% of infringed content. The Top 20% infringers, accounting for 3.2% of 12+ internet users, were responsible for 88% of infringements.

…

Despite their high levels of infringement, the Top 20% Infringers also accounted for 11% of the legal content consumed. The Top 20% Infringers also spent significantly more across all content types on average than either the Bottom 80% Infringers or the non-infringing consumers (£168 [$250] vs. £105 [$160] vs. £54 [$83] over the six month period covered).

As mentioned above, by now this is pretty much as expected, since survey after survey shows the same. But the current research explores a number of other aspects in greater depth, and presents new results we've not seen before. For example, in answer to the question "what would make you stop downloading or streaming content illegally?", the top answers by those downloading and spending the most were in the following order:

If legal services were cheaper
If everything I wanted was available legally
If legal services were more convenient\flexible
If everything I wanted was available legally online as soon as it was released elsewhere
If it is clearer what is legal and what isn't
If legal services were better
If a subscription I was interested in became available

As that makes clear, the main obstacles stopping them spending even more is unreasonable pricing and lack of availability -- things that the copyright world is still dragging its feet over.

The new analysis also tries to break down those accessing unauthorized copies into four broad categories that reflect their different attitudes. These are:

1. Justifying Infringers (9% of infringers, 24% of infringed volume, 2% of total digital consumers)

2. Digital Transgressors (9% of infringers, 22% of infringed volume, 2% of total digital consumers)

3. Free Infringers (42% of infringers, 35% of infringed volume, 10% of total digital consumers)

4. Ambiguous Infringers (39% of infringers, 20% of infringed volume, 9% of total digital consumers)

It's well worth reading the full report to see what the detailed analysis reveals about each of them. The research also tries to understand the different kinds of users who always access authorized copies, both paid and free, and then compares them in a variety of ways with the other group.

All-in-all, this is a valuable contribution to the field, and Ofcom is to be congratulated for continuing to commission innovative research that tries to get beyond the simplistic statistics that have hitherto been used to justifying ever-harsher punishments, in order to understand how the interests of both public and creators can be better aligned for their mutual benefit.

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Colombia's Other Copyright Bill: Moving Things In The Right Direction?

from the hopeful-signs dept

If you wanted an indication of just how much copyright has moved on from being a dry and boring topic of interest only to a few specialist lawyers to an exciting area full of surprising twists and turns worthy of a soap opera, you could do worse than look at what's been happening in Colombia recently.

A year ago, the Colombian government rushed through a really bad copyright law, known as "Ley Lleras 2", pretty much as a welcome gift for President Obama, who was about to visit the country. It did this by invoking an "emergency procedure" that let it ignore nation-wide protests that had followed the presentation of a similar bill earlier, the original "Ley Lleras". In January of this year, Ley Lleras 2 was struck down by Colombia's Constitutional Court, but for purely procedural reasons, rather than because of its substance. Before this, however, another bill had been prepared that sought to fix some of the glaring problems with Ley Lleras 2. Even though the latter has been blocked for the moment, the other bill is proceeding:

This Bill contains provisions regarding limitation and exceptions to Copyright Law. Last 16 of April the Bill passed the second debate in the House of Representatives. Now it is pending for debate in the Senate.

This Bill contains six articles regarding limitations and exceptions. Article 1 mandates an exception for temporary copies made as part of a technological process in some specific circumstances. Article 2 mandates an exception in favor of people with sight or hearing disabilities. Article 3 mandates an exception in favor of libraries and archives allowing them to lend a work. Article 4 mandates an exception in favor of parody. Article 5 mandates an exception in favor of educational institutions allowing the public performance of a work under certain circumstances. Finally, Article 6 repeals all provisions contrary to the ones mandated by this Bill.

As infojustice.org points out in the post quoted above, this "other" Colombian copyright bill has already had a number of positive effects:

First, after the petition made by Red PaTodos, this Bill is being publicly debated. This is a positive point because previous copyright bills have been enacted through processes without public discussions. Second, some sectors of society other than copyright scholars have engaged in the discussion, and they have manifested their concerns regarding this bill. For instance, radio shows and news organizations that use parody as a way to inform people or make political criticism have raised their concerns about the scope of the parody exception and its effects in limiting parody. This is positive because it shows that different sectors of the society have realized the importance of copyright law in their daily activities. Third, the Colombian Parliament has the copyright law in their legislative agenda, and it has realized the importance of having a balanced copyright system.

It's too early to guess what the final outcome of these two interlocking bills moving through the parliamentary system will be -- there's still plenty of time for yet more surprises. But the fact that there has been some open discussion of the proposed law, and that people are becoming aware of and engaged by the key issues raised by it, offers some hope that Colombia might end up with a better-balanced copyright system than either of the original Ley Lleras proposals would have provided.

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How Investor-State Dispute Resolution Threatens Access To Medicines, And Much Else

from the time-to-wake-up dept

A couple of weeks ago, we wrote about the growing importance of investor-state dispute resolution in so-called free trade agreements (FTAs). One of the most troubling aspects is how potentially it can be used to undo the hard-won gains for important areas like access to medicines. The US law professor Brook K. Baker, whose work we discussed last year, has written an excellent exploration of this under-appreciated risk. After an introduction running through the recent wins in the field of access to medicines -- a topic that we've covered extensively here on Techdirt -- he explains how big pharma could employ investor-state dispute resolution to thwart these and similar moves to protect health:

Using loose and imprecise standards addressing "minimum standards of treatment," "indirect expropriation," and "national treatment," multinational pharmaceuticals might claim that denying patents, granting oppositions, revoking patents, issuing compulsory licenses, and registering generics while referencing clinical data or doing so before patent expiration all violate their legitimate expectations for profit. Although the "minimum standards of treatment" clause [used to justify recourse to investor-state dispute resolution] was originally designed to prevent grossly abusive and discriminatory courtroom adjudications totally outside the bounds of normative due process, it has morphed to decisions with a much more lenient standard that rewards investors even when they have been given a full panoply of due process safeguards. The expropriation standard, originally adopted to deter nationalization of businesses and seizures of real property has similarly morphed to prevent indirect expropriations, what we call regulatory takings in the U.S., where changes in government regulations -- many designed to protect public health, environment, and other legitimate public interests -- are challenged as having diluted the investor's expectations of profit. Finally, the national treatment standard, though originally adopted to ensure that foreign investors are treated equivalently to domestic investors, is also morphing in new directions.

As this makes clear, what started out as a series of measures for a few special cases in order to protect Western companies in countries with weak legal systems and a high risk of tangible investments being expropriated by the state, has been twisted to an entirely different use: enabling deep-pocketed multinationals to circumvent any kind of legislation they don't like, even in countries with fair and independent judiciaries.

Baker concludes by offering some advice for nations involved in FTA negotiations with clauses that that call for investor-state dispute resolution to be put in place:

India and other trade negotiators should heed the entreaties of trade, IP, and health activists who are warning against the inclusion of an Investment Clause in the EU-India FTA, the Trans-Pacific Partnership Agreement, and in the many other trade agreements that are underway or soon-to-be initiated. Preferably, investment chapters will be rejected in their entirety, as they are becoming a corporate sword of Damocles that hangs over the head of rich and poor governments alike. At the very least, IP should be totally defined out of "investments" and no investor claims whatsoever should be available for alleged frustration of IP-based expectations. IP right holders already have multiple forms of enforcement including private lawsuits, border seizures, criminal prosecution, and state-state dispute resolution. Enough is enough. Expanded and unbound investment rights for Big Pharma under the cover of underscrutinized investment chapters is a grave threat -- a threat with deadly consequences to millions of patients who rely on governments' rights to regulate IPRs and to use any and all TRIPS-compliant flexibilities to ensure affordable access to medicines for all.

Worrying, few are even aware that the investor-state dispute resolution option exists, let alone its unprecedented power to circumvent government policy and override judicial decisions. That makes it all-too easy for negotiators to agree to its inclusion in trade agreements as an apparently minor concession that can be used as a bargaining chip to obtain measures they care more about. Let's hope that Baker's excellent contribution to the debate will alert people to this crucial area, and encourage others to speak up about the very real danger investor-state dispute resolution represents to a wide range of public interest issues.

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New Zealand To Ban Software Patents 'As Such'; Tries To Pin Down What On Earth That Means

from the can-we-just-pass-a-law-now? dept

Few patent sagas have been as fraught as New Zealand's attempt to revise its laws to exclude software. Techdirt first wrote about this move in March 2010, and again in June 2010, when it seemed that lobbyists had convinced the New Zealand government to reverse its position and allow software patents. Then, a month after that, word was that software would indeed be unpatentable. Things went quiet for a while, until a new version of the proposed law was unveiled by New Zealand's Commerce Minister Craig Foss, apparently weakening the bill once more:

His amendment has changed some crucial wording in the bill that some say has the government moving away from excluding software from being patented (as per select committee recommendations), to parts of the bill being sufficiently vague that software may indeed become patentable. Clause 10a of the supplementary order paper 120 was amended to read: "..prevents anything from being an invention for the purposes of this Act only to the extent that a patent or an application relates to a computer program as such"

The two words "as such" tacked on at the end there are precisely the same as those that are found in Article 52 of the European Patent Convention that also excludes software patents:

(1) European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

…

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

…

(3) Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

As that makes clear, "programs for computers" are not regarded as inventions, and are therefore ineligible for software patents in Europe. But that only applies to programs "as such": the trouble is, nobody really knows what those two words mean in this context, which has allowed lawyers to obtain thousands of software patents in the EU on the grounds that they weren't software patents "as such".

The appearance of precisely these same two words in the draft of New Zealand's patent law was naturally deeply troubling for the local software industry, since they threatened to provide a way to circumvent the ban as they had in Europe. And so another round of lobbying began, as reported here by Guy Burgess in an informative post on the subject:

The local IT community mounted a concerted pushback on the unclear "as such" amendment. An industry petition (backed by key groups IITP, InternetNZ, NZRise and NZOSS) was set up and gained wide support. The petition called on the Government to remove the ambiguous "as such" language, and replace it with a simpler clause that clarified the underlying intention. Labour's Clare Curran adopted the petition's proposed alternative clause as an official proposed amendment to the Patents Bill, and other MPs and parties, including United Future MP Peter Dunne, also raised concerns about the lack of clarity in the Bill.

To its credit, and thanks to the concentrated efforts of many people and not inconsiderable political pressure, the Government decided to take another look at the Bill and has now put forward a new amendment.

The section dealing with software in the most recent version of the Patents Bill (pdf) still includes the vexed words "as such", but it now tries to clarify what exactly they mean here:

Helpfully, it adds two examples into the Bill - one for a software patent application which may be granted, and one which should be declined. Examples in legislation are a good way to demonstrate how a section is intended to be interpreted. The "valid" example is of a washing machine that uses embedded software.... The "invalid" example is of a software process for automating company incorporation. It includes the key comment: "The mere execution of a method within a computer does not allow the method to be patented."

Importantly, the explanatory note has been enhanced to make the intention of the Bill very clear, including the following comments: "... where the actual contribution of an invention lies solely in it being a computer program, it is ineligible for patent protection... it will not be possible to obtain a patent for an invention that involves or makes use of the computer program if the sole inventive feature is that it is a computer program".

Given all the problems with the phrase "as such", it would have been easier to omit it completely, rather than resort to well-meaning but necessarily limited attempts to clarify it through examples. Burgess offers an interesting explanation of why that didn't happen:

It appears that the concern was whether doing so would open New Zealand up for a legal challenge for allegedly not meeting its TRIPS treaty obligations. By aligning the law with wording from another jurisdiction [the EU] that hasn't been challenged, it provided some comfort that New Zealand would be safe. Whether or not this would have happened is moot now - it was a significant enough concern to the powers that be for the above approach to be adopted.

That's certainly a fair point; let's hope it means that the latest wording won't need changing again, and that the updated bill banning software patents finally gets passed.

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Indian Government Quietly Brings In Its 'Central Monitoring System': Total Surveillance Of All Telecommunications

from the what-about-the-checks-and-balances? dept

There's a worrying trend around the world for governments to extend online surveillance capabilities to encompass all citizens -- often justified with the usual excuse of combatting terrorism and/or child pornography. The latest to join this unhappy club is India, which has put in place what sounds like a massively intrusive system, as this article from The Times of India makes clear:

The government last month quietly began rolling out a project that gives it access to everything that happens over India's telecommunications network -- online activities, phone calls, text messages and even social media conversations. Called the Central Monitoring System, it will be the single window from where government arms such as the National Investigation Agency or the tax authorities will be able to monitor every byte of communication.

This project has been under development for two years, but in almost total secrecy:

"In the absence of a strong privacy law that promotes transparency about surveillance and thus allows us to judge the utility of the surveillance, this kind of development is very worrisome," warned Pranesh Prakash, director of policy at the Centre for Internet and Society. "Further, this has been done with neither public nor parliamentary dialogue, making the government unaccountable to its citizens."

That combination of total surveillance and zero transparency is a dangerous one, providing the perfect tool for monitoring and controlling political and social dissent. If India wishes to maintain its claim to be "the world's largest democracy", its government would do well to introduce some safeguards against abuse of the new system, such as strong privacy laws, as well as engaging the Indian public in an open debate about what exactly such extraordinary surveillance powers might be used for.

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European Court Puts Release Of Drug Safety Data On Hold

from the regrettable dept

Last month Techdirt wrote about the case of the giant pharma company AbbVie seeking to prevent the European Medicines Agency from releasing basic health safety data that AbbVie claims contains commercially sensitive information. Unfortunately, an interim injunction has just been granted to that effect:

The European Medicines Agency (EMA) has been ordered by the General Court of the European Union not to provide documents as part of two access-to-documents requests until a final ruling is given by the Court. These interim rulings were made as part of court cases brought by two pharmaceutical companies, AbbVie and InterMune. The companies are challenging the Agency's decisions to grant access to non-clinical and clinical information (including clinical study reports) submitted by companies as part of marketing-authorisation applications in accordance with its 2010 access-to-documents policy.

As the EMA notes, it's not as if the release of this data is unprecedented:

Since November 2010, the Agency has released over 1.9 million pages in response to such requests. This is the first time that the policy has been legally challenged.

That obviously raises the question of why AbbVie and InterMune have problems with drug safety data being released when other companies don't. Fortunately, there is very broad support for the EMA's attempt to make this important information available for other researchers to check and analyze:

Since the two pharmaceutical companies filed these legal actions, the EMA has received more than 30 statements of support from various stakeholders, including the European Ombudsman, national competent authorities, members of the Agency's Management Board, Members of the European Parliament, academic institutions, non-governmental organisations, citizens' initiatives and scientific journals, some of whom have also applied to formally intervene in defence of the EMA at the Court.

There's a crucially important principle here, that public safety must outweigh any claims of commercial confidentiality. Let's hope that the General Court of the European Union recognizes that in its final judgment, which will have a major impact on health and safety not just in Europe but, as a knock-on effect, around the world too.

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Dutch Law Would Authorize Police To Hack Into Foreign Computers And Phones: What Could Possibly Go Wrong?

from the thinking-it-through dept

When we wrote last year about a Dutch idea to give police there the power to break into computers -- even those located abroad -- we and many others pointed out a number of deep flaws with the plan. Undeterred, the Dutch government seems to be going ahead with the scheme, as Bits of Freedom explains:

The police should be allowed to hack into mobile phones and computers, even when these are located abroad. This is proposed by the Dutch government on May 2nd of 2013. While this appears to be a powerful asset for law enforcement, in reality it creates unnecessary vulnerabilities for citizens.

Not content with that really bad idea, there's a couple of others tacked on for good measure, as the BBC reports:

The bill would also make it a crime for a suspect to refuse to decipher encrypted files during a police investigation.

It is expected the draft legislation will be put to parliament by the end of the year.

The bill singles out child pornography and terrorism as two areas of special concern. The publication of stolen data would also become punishable.

It's easy to see how the last of those could be abused to silence inconvenient whistleblowers. Bits of Freedom sums up well the key danger with the bill:

other countries, such as China, will use the powers as a justification for their own activities. They will follow the Dutch example by allowing their police to use the same methods, including hacking abroad, in order to delete controversial data. Civilians will become the victims in an arms race between hacking governments.

Indeed, it's worth considering for a moment what the Chinese response will be when it finds Dutch police, with the full approval of the Dutch government, deleting files or installing spyware on computers on its territory. It won't matter if the latter were involved in breaking into Dutch systems, or controlling a global botnet: national pride will be at stake over what will effectively be an attack on Chinese citizens and property. So as not to lose "face", a robust response is guaranteed. Is the Netherlands (population 6,065,459 16,788,973) really ready to take on China (population 1,353,821,000) over this?

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Royalty Collection Agency SABAM Sues Belgian ISPs In Pursuit Of Its Fantasy 'Piracy License'

from the clutching-at-straws dept

Back in November 2011, we wrote about the Belgian music royalty collection agency SABAM's demand for 3.4% of Internet subscriber fees as "compensation" for online piracy in Belgium. As Tim Cushing explained back then, this was ridiculous on just about every level. But SABAM doesn't let little things like that get in the way of its desperate attempt to avoid moving with the times and coming up with new business models. So after failing dismally to convince Europe's highest court that it could force ISPs to spy on their customers, SABAM has now moved on to suing ISPs instead, as TorrentFreak reports:

This week SABAM sued the Belgian ISPs Belgacom, Telenet and Voo, claiming a 3.4 percent cut of Internet subscriber fees as compensation for the rampant piracy they enable through their networks.

SABAM argues that authors should be paid for any "public broadcast" of a song. Pirated downloads and streams on the Internet are such public broadcasts according to the group, and they are therefore entitled to proper compensation.

One of the ISPs being sued, Belgacom, has a better analogy for what's going on here:

"A postman doesn't open letters he delivers. We are also just transporting data, and we are not responsible for the contents," Belgacom says.

That's the "mere conduit" principle, and as TorrentFreak points out, if that defense is overturned here, and the "piracy license" is imposed, the cost will inevitably be passed on to users, which means that people who buy music legally will be paying twice for the privilege. And of course, it wouldn't just be SABAM: the other copyright industries -- films, books, photos, software, games -- will doubtless all line up for their free handout, making online access prohibitively expensive in Belgium.

But along with all the other problems mentioned by Tim back in his 2011 post, there's another major flaw in SABAM's logic. According to recent work carried out by the European Commission's Joint Research Centre, it's not even clear that the recorded music industry is being hurt by unauthorized downloads:

Perhaps surprisingly, our results present no evidence of digital music sales displacement. While we find important cross country differences in the effects of downloading on music purchases, our findings suggest a rather small complementarity between these two music consumption channels. It seems that the majority of the music that is consumed illegally by the individuals in our sample would not have been purchased if illegal downloading websites were not available to them. The complementarity effect of online streaming is found to be somewhat larger, suggesting a stimulating effect of this activity on the sales of digital music.

That is, streaming sites might even promote digital music sales; so maybe SABAM should be giving money to the ISPs, not asking for it....

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Now US And EU Want To Apply Upward Ratchet To TRIPS Itself

from the once-a-maximalist,-always-a-maximalist dept

Here on Techdirt we often talk about the copyright ratchet -- the fact that for three hundred years changes to copyright have always been in one direction: longer, wider and stronger. But there's a group of countries where the copyright ratchet isn't in place yet. These are the so-called LDCs -- the Least Developed Countries -- where many of the world's poorest citizens live. That's because the main Agreement on Trade Related Aspects of Intellectual Property Rights, better known as TRIPS, explicitly allows LDCs a transitional period of ten years, during which time they are not required to meet all the stringent requirements laid down there for granting intellectual monopolies. Moreover, the TRIPS agreement specifies:

The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period.

And as an article on infojustice.org notes:

Last November the LDCs exercised their legal rights under the TRIPS rules, and submitted a request to the TRIPS Council requesting an unconditional extension of the transition period for as long as a country remains an LDC. The current transition period expires on 1 July 2013.

Article 66.1 of the TRIPS Agreement grants LDCs a renewable exemption from TRIPS obligations. The rationale is that LDCs need maximum flexibility to develop a viable technological base and address their constraints, and that the standard of TRIPS IP protection may be an obstacle in achieving those objectives.

The US and EU routinely insist that countries follow TRIPS to the letter, but it seems they are only too happy to ignore their own obligations when it comes to granting a further exemption to LDCs:

Developed countries, particularly the United States and the European Union, have offered a poor and impractical deal of an incredibly short extension of 5 years with restrictive conditions to least developed countries that are entitled to be exempted from implementing the WTO TRIPS Agreement.

Particularly problematic is their demand that the LDCs agree to a "no-roll-back" clause, a TRIPS plus condition that will prevent LDCs from rolling back (i.e. providing a reduced degree of IP protection) their current laws, even if they adversely impact their development concerns.

"No roll-back" is another way of saying upward ratchet. But the US and EU are trying to haggle over details of an agreement that was finalized and signed back in 1994. As infojustice.org puts it:

The US and EU demand, if agreed to, would actually amount to an amendment to Article 66.1, but without following proper WTO procedures as required by Article X of the WTO Agreement

That is, the US and EU are not only trying to bully smaller countries into accepting unofficial changes to negotiated agreements, in this case to lock LDCs into a system with a built-in ratchet for intellectual monopolies, but they want the upward ratchet to operate on TRIPS itself.

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Mozilla Sends Cease And Desist Letter To Commercial Spyware Company For Using Firefox Trademark And Code To Trick Users

from the betraying-trust dept

Techdirt has written several times about the increasing tendency for governments around the world to turn to malware as a way of spying on people, without really thinking through the risks. One company that is starting to crop up more and more in this context is Gamma International, thanks to its FinFisher suite of spyware products, which includes FinSpy. A recent report by Citizenlab, entitled "For Their Eyes Only: The Commercialization of Digital Spying", has explored this field in some depth. Among its findings is the following:

We identify instances where FinSpy makes use of Mozilla's Trademark and Code. The latest Malay-language sample masquerades as Mozilla Firefox in both file properties and in manifest. This behavior is similar to samples discussed in some of our previous reports, including a demo copy of the product, and samples targeting Bahraini activists.

That's pretty serious: Mozilla's trademark is not only being abused, it's being used to trick people into installing malware that might well have serious consequences for them if their government disapproves of their activities. Quite rightly, then, Mozilla is taking legal action, as the organization's privacy and public policy lead, Alex Fowler, announced in a blog post:

A recent report by Citizen Lab uncovered that commercial spyware produced by Gamma International is designed to trick people into thinking it's Mozilla Firefox. We've sent Gamma a cease and desist letter today demanding that these illegal practices stop immediately.

Choosing Mozilla as the cover for this malware is cynical in the extreme, for reasons Fowler explains:

As an open source project trusted by hundreds of millions of people around the world, defending Mozilla's trademarks from this type of abuse is vital to our brand, our users and the continued success of our mission. Mozilla has a longstanding history of protecting users online and was named the Most Trusted Internet Company for Privacy in 2012 by the Ponemon Institute. We cannot abide a software company using our name to disguise online surveillance tools that can be -- and in several cases actually have been -- used by Gamma's customers to violate citizens' human rights and online privacy.

The only consolation regarding this move to create commercial spyware for sale to governments around the world is that it is possible to use conventional legal instruments like cease and desist letters against the companies behind them when they overstep the mark. Nonetheless, it's a deeply disturbing development that even countries like Germany now seem happy to use FinFisher in order to spy on their citizens by means of malware (original in German.)

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New EU Regulation Threatens Rare Seed Varieties, Agricultural Independence And Food Supply Resilience In Europe

from the how-did-that-happen? dept

Unless we are farmers, we tend to take seeds for granted. But civilisation is built on seeds: it was the rise of large-scale agriculture, based in part on the skilful breeding of ever-better seeds, that eventually allowed towns and then cities to form; and with them, the trades, arts and sciences that were possible once enough food could be produced by just a fraction of the population. That makes national seed policies -- how governments regulate the production and sale of plant varieties -- a crucial if neglected aspect of our urban lives.

It seems that the European Commission has been working on a massive re-vamp of its regulations governing seeds, and people are increasingly worried by its plans. Here's what the Soil Association, a UK charity founded in 1946 that campaigns for organic food production and related areas, has to say on the matter:

The Soil Association believes the proposed new EU regulation on the marketing of plant reproductive material will put the future of our plant biodiversity at risk. It will have a disastrous effect on the availability of rare varieties and farmers' varieties, and stop the exchange and selling of traditional seeds. This will not only affect farmers and growers in the short term by outlawing exchange of seed not currently commercially available, but in the long term will erode the diversity of species that even the large seed companies, who are driving the proposal, need to provide their future varieties.

The draft of the regulation (pdf) is around a hundred pages of pretty dry rules, but the essence is as follows. The new regulation will apply to every kind of plant, and will impose strict rules on those producing or offering seeds and plants commercially. They must register, every plant or seed they wish to sell must be certified, and these must be packaged according to strict rules that even specify what color the attached labels must be.

The intent may be laudable: to ensure that plant material that is available in the EU is safe, and that problems can be tracked back to their source. But the bureaucratic burden and cost of compliance is likely to be well beyond most smaller seed producers. Here's what the Soil Association sees as the chief problems:

The proposed regulation goes even further than the current European seed law which favours the production of uniform varieties (protected by plant breeder's rights) and discriminates against less homogenous open pollinated varieties and populations. This has already resulted in a non-reversible loss of agro-biodiversity. The proposed regulation will require every seed to be registered and an annual license to be paid for each variety.

Under this law it won't be possible to register old and new niche varieties and populations (e.g. conservation and amateur varieties, landraces [naturally-evolved local variants] and farmers' selections) based only on an officially recognized description (ORD), without official registration and certification, as is currently practiced.

If this regulation is passed, not only will we lose a huge number of plant varieties , we will lose the amazing diversity of appearance, taste, and potential benefits such as disease resistance and nutritional content.

Furthermore despite assurances that this law will only apply to farmers the latest draft legislation suggests that every gardener will be subject to the regulation -- the effects will be disastrous for farmers and growers

As that makes clear, the new regulation will discriminate against traditional, unpatented varieties that don't have deep-pocketed companies behind them. That's crazy for at least two reasons.

First, it is precisely these older varieties that collectively have the greatest genetic diversity. That makes it more likely that some of them will be resistant to new diseases, and better able to cope with rapid climate change. By forbidding the sale of these varieties unless they are registered and certified -- something that is likely to be prohibitively expensive given the huge number of them -- the regulations will cause the plants used across Europe to become genetically less diverse, more vulnerable to disease and less able to cope with changes in the environment.

On the other hand, the big multinational seed companies with patented varieties will easily be able to meet the expense of registering and certifying their products. Since the unpatented alternatives that derive from ancient varieties or more recent landraces will no longer be permitted even in local flower and vegetable markets unless fully certified, the dominance of such giant seed companies in Europe is likely to grow. The EU will come to rely on a few very large companies and their limited selection of patented products. As well as increasing the likelihood of cartels forming, and higher prices, this shift will reduce both the independence and resilience of European agriculture.

What's particularly disturbing is that these far-reaching changes seem to have been drawn up almost entirely unnoticed. It is only now that a few organisations like the Soil Association are finally alerting people to what is happening. The bad news is that the European Commission is due to vote on the new regulation next week; but the good news is that a recent email campaign led by the Open Source Seeds site may be having some effect:

We have heard that due to the volume of people writing about this, last minute changes are being considered.

Let's hope so -- they're badly needed.

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Africa's Ancient Plant Diversity And Seed Independence Under Threat, Supposedly In The Name Of Progress

from the it's-a-trick dept

As Africa continues to develop rapidly, Western countries and companies are increasingly interested in bringing it into existing international legal and commercial frameworks, but always on terms that maintain their dominance. One way of doing that is through intellectual monopolies: last year we wrote about proposals for a Pan-Africa Intellectual Property Organization (PAIPO), whose benefits for Africa seem dubious. Meanwhile, here's another plan that is being presented as a vital part of Africa's modernization process, and yet oddly enough seems to benefit giant Western companies most, as AllAfrica reports:

the proposal is to create a harmonised system of control around the presently fragmented African seed trade regime and create a system based on what is projected as modern best practice.

This includes uniform adherence to the strict 1991 Act of the International Union for the Protection of Plant Varieties (UPOV), across the board, for Africa. Because of the stringency of UPOV, the real impact of this will be the loss of control of the seed supply by indigenous small farmers. The consequences for food production and social cohesion across the continent will be dire.

The fear is that changes to how seeds are regulated will have major knock-on effects on African societies:

Once locally adapted seed varieties are lost, dependence on outside seed suppliers will rapidly become unaffordable. The implications will reverberate far beyond food production.

Indebted farmers are at direct risk of losing land tenure. On the one hand this causes accelerating urbanisation and social dislocation. On the other, good agricultural land is appropriated by large conglomerates. There is already a massive thrust by nations and corporations to gain land tenure in fertile tropical African agricultural zones.

It's well worth reading the rest of the article, which explores the continuing consolidation in the African seed industry, and how global giants like Monsanto hope to avoid some of the resistance they have experienced elsewhere in the developing world -- for example, in Brazil, discussed in Techdirt last year. As the AllAfrica article concludes:

If there was ever a time for the vocal proponents for African unity and values to step forward, it is now. Should they fail, African leadership will be harshly judged for enabling the next phase of neo-colonialism to unfold unopposed.

Unfortunately, given that PAIPO seems to be going ahead, despite major concerns about its lack of balance and transparency, the chances of the requisite African unity being achieved in order to stave off this latest attempt by the West to disadvantage the continent by locking it into inappropriate international structures look poor at the moment.

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Brazil's Marco Civil Not Dead Yet; Yahoo Voices Support

from the not-google-this-time dept

Techdirt has been following the story of Brazil's innovative Marco Civil project, a civil-rights based framework for the Internet, for a while. Last time we wrote about it, it had been shelved following some aggressive work by lobbyists. As we noted then, it wasn't clear whether it would be resuscitated or not, but here's Kuek Yu-Chuang, Yahoo!'s Regional Public Policy Director, who seems to think it still stands a chance of being approved:

I recently had the opportunity to travel to Brasilia with colleagues from Yahoo! representing our public policy, privacy, copyright, and communications teams. While in the Brazilian capital, we engaged with key officials to voice Yahoo!'s support for the Marco Civil da Internet (known as the Marco Civil), which some have described as Brazil's "Constitution of the Internet." The Marco Civil establishes the promotion of access to the internet as a right for all Brazilians. The draft bill also aims to provide safe harbors for Internet service providers, and allow free speech on the Internet.

In an impressive effort to incorporate the ideas of Brazilian citizens, the drafters of the Marco Civil made the initial version of the bill open to the public for comments in late 2009. More than 1100 contributions were received from around the country. The Marco Civil is now with the House of Deputies in the Brazilian Congress and a vote is expected in coming months.

That's unexpectedly good news; it's also great that Yahoo! is publicly supporting the Marco Civil in this way, since that may help to counterbalance renewed lobbying from other quarters when the vote in the Brazilian Congress takes place.

The fact that on this occasion it's not Google trying to bolster moves to make the laws governing the Internet more balanced is important. That means the law's opponents won't be able to paint the Marco Civil bill as something largely for the benefit of Google, as has happened elsewhere. Let's hope that Yahoo! continues speaking out on the issues of net neutrality, privacy and maybe copyright modernization: that would be good for burnishing the company's image, and good for Internet users.

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