Recently we wrote that Switzerland was keen for Edward Snowden to travel there to testify about US surveillance. Given that evident appreciation of the value of a whistleblower in revealing unsuspected wrong-doing, this news from Reuters that Switzerland's parliament is considering a law to tighten the rules governing this area is rather disappointing:

Although the bill aims to clarify a grey area of the law, it will effectively outlaw whistleblowing unless Swiss authorities -- renowned worldwide as a model of efficiency -- fail to follow correct procedures.

Apparently, this approach flows from the Swiss belief that employees have a fundamental duty to their employers, and so they must always report wrongdoings to them in the first instance. That's bad enough -- it could easily lead to the whisteblower being punished for speaking up -- but it gets worse:

Any response from the authorities -- even a decision not to investigate -- would nullify an whistleblower's right to go to the media, said Zora Ledergerber, owner of Integrity Line LLC, which advises companies on internal reporting systems.

Although that might seem to make sense in a country whose banking services pride themselves on their discretion, it's rather foolish, since it means that abuses and wrong-doing that could have been stopped will continue to fester, ultimately damaging the country and the rule of law there. The bill has been passed (original in German) by the Council of States, Switzerland's upper house, and now moves to the country's National Council for approval.

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Things have gone rather quiet on the Snowden front, with the initial torrent of leaks slowing to a trickle. But separately from the documents that he's provided to journalists, there's the story of the man, still holed up in Russia, in a rather precarious legal position. That probably explains why he has been reluctant to leave that temporary but apparently safe haven. Now it seems that Switzerland is thinking about offering him safe conduct if he visits to testify about surveillance there. Here's David Meyer's summary in Gigaom:

Sunday reports in Le Matin Dimanche and Sonntags Zeitung both cited a document, written by the attorney general last November in order to establish the legal situation around a potential Snowden visit, as saying an extradition request [from the US] would be rejected if the Swiss authorities saw it as political. The document stated that only "higher state obligations" could override this position.

According to Marcel Bosonnet, reportedly Snowden’s legal representative in Switzerland, the position means that "the legal requirements for safe conduct are met," and Snowden has shown interest in visiting Switzerland. Glenn Greenwald, the journalist and Snowden confidante, has previously recommended that he take asylum there.

There are close parallels with the situation last December, when Brazil too was keen to have Snowden's help in investigating surveillance of its citizens. Snowden wrote at the time:

Many Brazilian senators ... have asked for my assistance with their investigations of suspected crimes against Brazilian citizens. I have expressed my willingness to assist wherever appropriate and lawful, but unfortunately the United States government has worked very hard to limit my ability to do so -- going so far as to force down the Presidential Plane of Evo Morales to prevent me from traveling to Latin America! Until a country grants permanent political asylum, the US government will continue to interfere with my ability to speak.

Even leaving aside concerns about those "higher state obligations" that might override Switzerland's safe passage, Snowden must also rightly fear the US will try to seize him if he travels from Russia. The risks seem high, and for little direct benefit -- this is not, after all, the offer of permanent asylum that he is seeking. All-in-all, giving testimony via a video link seems a far safer option for him.

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Two years ago, Techdirt noted the price that Switzerland paid for daring to suggest that unauthorized file-sharing really wasn't such a problem: it was put on the USTR naughty step, aka the "Special 301 list." A post on Intellectual Property Watch explains the current copyright situation in Switzerland:

Anybody can download a movie or a soundtrack and share it with his family in the realm of the private sphere. The downloaded movie or soundtrack cannot, however, be made public on the internet -- for example through a social media platform -- or transmitted to third persons, the [Swiss] official said.

Switzerland is in the process of revising its copyright laws, and you might expect that by now it has been "persuaded" by the US to change its mind about allowing people to download files freely and share them in this way, but to its credit, that doesn't seem to be the case (pdf). Here's what the official Swiss working group carrying out the review of copyright, known as AGUR12, is recommending:

In view of the measures proposed below... downloading from illegal sources, as provided for in current law according to the prevailing doctrine, should remain legal.

The proposed measures mentioned there concern new responsibilities for ISPs, designed to help remove unauthorized online content. These include "takedown":

Hosting providers should remove content that has been illegally uploaded when notified to do so by the rights holder or a competent authority.

"Staydown":

Hosting providers, whose business model is clearly designed for the infringement of copyright by users, or who intentionally promote running the risk of performing illegal acts through measures or omissions for which they are responsible, need to remove illegally uploaded content when notified to do so by the rights holder and take all reasonable measures to prevent any further illegal uploading of such content.

And blocking:

On the order of the authorities, access providers located in Switzerland need, in serious cases, to block access to web portals that feature obvious illegal sources by means of IP and DNS blocking. The blocking of approved content along with unapproved content (overblocking) is to be avoided, as far as possible, by the competent authorities. All blocking measures are to be made publicly known in an appropriate form by the competent authorities and they may not compromise the technical functionality of the IP or DNS system.

AGUR12 also proposes introducing a new warning system for users, which concerns sharing materials on P2P networks:

An overzealous enforcement of the law is problematic and is perceived as being aggressive because internet users are often unclear about the legal situation. Prior notification may remedy this. It is therefore important to create the possibility for access providers to issue a one-off notification, when notified by the rights holder or a competent authority, to owners of internet connections who seriously infringe copyright by using peer-to-peer networks. Rights owners should adequately compensate access providers for the costs incurred for delivering such notification. Upon receipt of the notification, the subscriber will then have to take appropriate steps to prevent continued use of his connection for copyright infringement via peer-to-peer networks in order to avoid facing joint civil liability in the event of recurrence. To this end, the necessary legal basis is to be established and a guarantee of judicial review is to be observed; in particular, ISPs and consumer organisations must have the possibility of appealing to the competent authority upon notification from a rights holder.

As these excerpts of the recommended changes indicate, while revising their laws for the digital age, the Swiss seem to be keen to maintain their refreshingly moderate and rational approach to copyright. Which doubtless means that we can expect to see the country placed on the Special 301 list for some years to come.

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Here on Techdirt we often discuss economics in the absence of scarcity -- how the ability to make any number of digital copies for vanishingly small cost creates new business opportunities for creators. But could a kind of abundance exist in the physical world too? That's the question raised in a fascinating post on Salon about a vote that will take place in Switzerland:

By gathering over 100,000 signatures -- which they delivered last Friday along with 8 million 5-cent coins representing the country's population -- activists have secured a vote by Switzerland's parliament on an audacious proposal: providing a basic monthly income of about $2,800 U.S. dollars to each adult in the country.

As the article explains, that $2,800 is unconditional:

If you're rich you get it, if you're poor you get. If you're a good person you get it, if you're a bad person you get it. And it does not depend on you doing anything other than making whatever effort is involved to collect the money.

The rest of the post is a great discussion with John Schmitt, a senior economist at the Center for Economic and Policy Research, who explores this idea from various angles. The whole thing is well-worth reading, but I think one section in particular will be of interest to Techdirt readers:

So if we were a very rich world, which I think we are to a certain degree, [universal basic income of the kind being discussed in Switzerland] would be a remarkable way to make sure that people could maximize their ability to express themselves but also maximize their ability to participate in the communities that they live in in a full way. Stay home and take care of kids if that's what you want to do. Take care of your parents when they're old and sick.

This feeds into discussions about how creators could live and thrive in a world where it was legal to share copies of their work. A society that provided them -- and everyone -- with a basic wage would not need to rehearse today's sterile arguments about piracy. Artists would have the option of living on the basic wage while they created, or of making more money by building on the fact that their work is freely available, as Techdirt has advocated. Some might dismiss this as a utopian dream, but as Schmitt points out, it's not:

People sometimes refer to this as a kind of "Star Trek" economy -- you just said, "Replicator, make me a ham sandwich." There wasn't any social conflict around production and consumption. And that, I think, is that kind of ideal in which this kind of a thing could play out. We are probably there in terms of the economics. We are very, very wealthy -- we could afford to do this. But we are not there in terms of the politics.

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As we noted last week, one of the key claims following the revelations about the Prism program was that it was aimed at those outside the US, and that US citizens were caught up in it only incidentally. A further leak concerned the Boundless Informant analysis tool, one of whose maps showed which regions of the world were subject to most surveillance. Along with obvious hotspots like Iran and Pakistan, Germany too was among those of particular interest, as was the US (whoops.) A story on reason.com offers a clue as to why that might be.

The blog post focuses on an incident from the time when the whistleblower Edward Snowden worked for the CIA, rather than the NSA. Here's the original text in the Guardian:

By 2007, the CIA stationed him with diplomatic cover in Geneva, Switzerland. His responsibility for maintaining computer network security meant he had clearance to access a wide array of classified documents.

That access, along with the almost three years he spent around CIA officers, led him to begin seriously questioning the rightness of what he saw.

He described as formative an incident in which he claimed CIA operatives were attempting to recruit a Swiss banker to obtain secret banking information. Snowden said they achieved this by purposely getting the banker drunk and encouraging him to drive home in his car. When the banker was arrested for drunk driving, the undercover agent seeking to befriend him offered to help, and a bond was formed that led to successful recruitment.

In that quotation, there's the nugget of information that the CIA was not targeting terrorists on this occasion, at least not directly, but "attempting to recruit a Swiss banker to obtain secret banking information". That raises an interesting possibility for the heightened interest in Germany, as revealed by Boundless Informant.

Given that the NSA is gathering information on a large scale -- even though we don't know exactly how large -- it's inevitable that some of that data will include sensitive information about business activities in foreign countries. That could be very handy for US companies seeking to gain a competitive advantage, and it's not hard to imagine the NSA passing it on in a suitably discreet way.

Germany is known as the industrial and economic powerhouse of Europe, so it would make sense to keep a particularly close eye on what people are doing there -- especially if those people happen to work in companies that compete with US firms. In other words, just as as the CIA was looking to obtain "secret banking information" in Switzerland, it seems quite likely that the NSA also comes into the possession of similarly sensitive commercial data during its German trawls.

If that were confirmed, it would certainly change the debate somewhat. The standard justification that massive surveillance is indispensable in the fight against terrorism if lives are to be saved, would be replaced by the rather weaker one that it's rather handy being able to spy on Germany since its industrial secrets can be pilfered. It will be interesting to see whether any future revelations about the NSA's activities shed more light on this area.

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There was a report a few weeks back noting that WIPO had been in favor (pdf) of allowing the Pirate Party International to be designated as an accredited "observer" to WIPO meetings (which would allow them to participate as an non-governmental organization, but without voting powers). However, it appears that the official decision on this has now been delayed because of objections from Swiss, French and US (who else?) officials:

This morning, under agenda item 6, the WIPO General Assemblies decided to defer a decision until 2013 on the application for accreditation by Pirate Parties International. I was told that the US, Switzerland the France raised objections in the informal consultations, and that some other European countries wanted to raise objections, but found it awkward given the recent success of domestic Pirate Parties in national elections. The USA said it asked for a hold on the decision until WIPO could decide if it wanted to accept political parties as WIPO observers. One delegate said European countries were concerned that the Pirate Parties would take "political action" back home when they disagreed with positions taken by the official delegates at the WIPO meetings.

While it is a legitimate question as to whether or not political parties should count as NGOs, the whole thing still feels pretty questionable. As Jamie Love notes, it just makes WIPO look like it's afraid of the Pirate Party.

KEI's view is that the decision to block the Pirate Parties International application made WIPO look even more captured by right holders than it actually is. To the extent that intellectual property rights issues become seen as political rather than simply technical matters, it may be possible to have broader, deeper and more useful debates on the purpose and performance of the intellectual property rights system. Why? Because many of the technical staff at the government levels are caught up in a system where responsiveness to right-holder interests is key to promotions or job retention, and the robust revolving door with industry creates incentives to be anti-consumer.

In other words, another blown opportunity to try to move things forward, rather than staring longingly at the past.

Meanwhile, others are pointing out that the Pirate Parties International appears to meet all the criteria, and thus it is completely ridiculous to delay their observer status:

“If the NGO’s application falls within a plain wording of the rules and regulations defining what NGOs may be accredited, then the application should be granted,” he said. “From our perspective, what harm can there be for the secretariat of a political party to be an observer at WIPO? If anything, it seems to us this will lead to a better understanding by that secretariat of the international dimension of IP public policy, which is no bad thing.”

The whole thing seems like a typical negative reaction to the party simply because of its name, without any recognition of what it actually stands for, driven by pressure from the US. WIPO looking like a US stooge yet again? Not a huge surprise.

Apple is notoriously aggressive when it comes to going after others for supposedly violating its trademarks -- often taking it to extreme levels. So it seems noteworthy, as many of you sent in, that the Swiss Railway Service (SBB) is claiming that Apple's clock app in iOS 6 happens to infringe on a clock design they hold the rights to. On the left is Apple's app. On the right, is SBB's iconic version. While the article above quoted someone from SBB saying that he's "happy" that Apple used the design, that doesn't mean that they're okay with it. They're not:

SBB is the sole owner of the trademark and copyright of the railway clock. The railway company will now get in touch with Apple. The aim is a legal, as well as a financial solution. It is not right that one [Apple] simply copies the design.

Apple has a bit of a history of playing fast and loose with the artwork it uses. Remember the story of the iPad background image? And there are plenty of reasons to suggest that Apple should be able to do this. But, considering how aggressive it is in enforcing its own trademarks, you'd think that it would be a lot more careful before doing things like this. Of course, you have to also wonder... if Apple weren't so aggressive with its own trademarks, would SBB be so insistent on a "legal" and "financial" solution?

Last December, we wrote about a report put out by the Swiss executive branch noting that, based on their research, it appeared that unauthorized file sharing was not a big deal, showing that consumers were still spending just as much on entertainment, and that much of it was going directly to artists, rather than to middlemen. In other words, it was a market shift, not a big law enforcement problem. At the time, we wondered if Switzerland had just bought itself a place on the USTR's "Special 301 list" that the administration uses each year to shame countries that Hollywood doesn't like.

That list doesn't come out for a bit, but there's another, similar list, put out by the Congressional International Anti-Piracy Caucus (yeah) that has added Switzerland to its "bad countries" list along with China, Russia and Ukraine. Italy also joined Switzerland as a "first-timer" on the list -- despite rulings that required ISPs to block access to various file sharing sites. The issue in Italy? I'd guess that a story we had earlier this year has something to do with it. After some political fighting, the government there basically decided to just stop regulating copyright issues online. There's also an upcoming fight about new copyright proposals coming in Italy, and this seems like a preemptive strike for some of Hollywood's favorite Congressional Reps and Senators to pressure Italy into approving bad laws that Hollywood likes.

Meanwhile, both Spain and Canada -- who passed legislation very much at the behest of American interests -- were removed from the evil part of the list and switched to "in transition." The message is not particularly subtle: do not, at any cost, question Hollywood's planned copyright laws, or the US government will shame you as a haven for pirates, no matter how bogus that claim really is. Hopefully governments in Switzerland and Italy resist such obvious lobbying on behalf of special interests and pay attention to reality in those markets.

The BBC has an interesting article about Mark Shuttleworth and Ubuntu, and some of the innovations Canonical is working on. There's some good stuff in there, but what caught my attention was the bit at the end about patents:

"We know that we are sort of dancing naked through a minefield and there are much bigger institutions driving tanks through," Mr Shuttleworth says.

"It's basically impossible to ship any kind of working software without potentially trampling on some patent somewhere in the world, and it's completely impossible to do anything to prevent that.

"The patents system is being used to slow down a lot of healthy competition and that's a real problem. I think that the countries that have essentially figured that out and put hard limits on what you can patent will in fact do better."

Of course, this is the exact opposite of what the patent system is supposed to do -- but pretty much everyone who's actually innovating these days seems to recognize the same thing. What amazes me is that we haven't seen more of what Mark hints at towards the very end: countries providing explicit safe havens around patents. We have examples of this in the past -- perhaps most famously, the Netherlands and Switzerland in the latter half of the 19th century. The Netherlands dumped patents entirely, while the Swiss limited what was patentable massively (to the point that very little was considered patentable at all). And both countries saw economic growth as a result -- where industry and innovation flocked to both countries because they weren't being held back by patent disputes.

It does seem that perhaps some folks in the Netherlands remember this. There's an ongoing effort called the Appsterdam Foundation (in Amsterdam, of course), where part of the goal is to help protect app makers from crazy patent lawsuits. But I'm waiting for even more recognition from countries that this is a real growth opportunity. Assuming that countries have the nerves to withstand having the US taunt them each year with placement on the Special 301 list, there's a real opportunity for a developed nation to have innovation show up in droves by massively limiting patents.

When discussing ACTA, there's a natural tendency to concentrate on the bigger players -- the US or the EU -- but it's important to remember that there are many other countries involved. One of those is Switzerland, which has just joined the doubters' club by holding off from signing ACTA. Here's why (French original):

Since the conclusion of the negotiations, the criticisms regarding ACTA have multiplied in various countries. The [Swiss] Federal Council takes these fears seriously since they concern fundamental liberties and important points of law.

As a result, Switzerland will not be signing ACTA for the moment. Instead:

The Council will re-examine the question when new elements on which it can base its decision are available. These elements could include the deliberations of the five EU countries that have delayed signing ACTA, the results of the referral to the European Court of Justice by the European Commission, or the continuation of the EU's ratification procedure.

Clearly, the Swiss Federation is taking a wait-and-see attitude, and doesn't want to rush into ACTA when others are taking their time. In itself, this latest move by Switzerland doesn't change much, but it does add to the growing doubts about whether ACTA will ever come into force.

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