I'm all for calling out the UK Government when they do nasty things, but I'm not convinced this is as controversial as it sounds.
For starters, it is a turf war between the Labour-controlled Home Affairs Committee and the Government-controlled Intelligence and Security Committee. Having watched the HAC's "grilling" of Rusbridger, I'm far from convinced that it (on the whole) cared about the underlying issues of privacy and security - it seemed more interested in finding ways to embarrass the Government while broadly supporting the actions of GCHQ. The message seemed to be that the ISC's oversight was terrible and so the ISC needed to be reformed (in particular, giving Labour control over it).
For the issue here, both decisions make sense; the ISC is the committee that has "jurisdiction" over the intelligence services, with special powers to monitor MI5. If the Home Affairs Committee has issues with what MI5 is doing, they should be taking that up with the Home Office, or with the ISC.
With Kim Darroch, again I'm not sure it would be appropriate to bring him before the Home Affairs Committee; he acts as advisor to the National Security Council; getting him to testify would be like getting someone's lawyer to testify rather than the person themselves, which is why it makes more sense for the Home Secretary (or someone else from the NSC) to give evidence.
The prime minister has suggested that the home secretary should come before us to answer our questions and Theresa May is suggesting that it is a matter for the intelligence and security committee. We cannot play pass the parcel on the issue of accountability on these important issues.
And that is misleading politics; the Prime Minister did say the Home Secretary should be the one giving evidence instead of the National Security Advisor, but she said that the ISC should be the one looking into what MI5 are doing; different answers to different questions.
Given that it was Labour who created most of these surveillance powers, I have little faith that they are going to do anything about them...
I watched most of the hearing, then my computer crashed and I couldn't be bothered to watch the end; it was rather boring. For the most part it was just party politics.
The committee chair (Keith Vaz, Labour) was pushing for quotes to show the oversight system needed looking into; Labour don't want more oversight, they just want the oversight committee chair to have to be from Labour.
Michael Ellis and the other Conservative went on the attack; trying to get Rusbriger to admit to breaking the law - even though at least one of them is a lawyer and should understand the subtleties involved. And Keith Vaz had to cut them off a bit, as it was clear they were talking mostly-nonsense in order to get a quote.
The only one really asking about surveillance was the Lib Dem (Julian Huppert) but even he seemed to mostly be focussed on praising the Guardian (which endorsed the Lib Dems at the last general election).
But that's Select Committees for you; it seems the more attention they have the more party-political they get.
I can't speak for US law, but over in the EU there is some debate as to whether linking a work amounts to communicating that work to the public (an act restricted by copyright).
The latest site-blocking judgment in the UK had a brief discussion on this, but didn't reach a conclusion (finding infringement on other grounds), and there are a handful of cases pending before the CJEU.
So it isn't surprising that some people do think that you can't link without permission (whether from a copyright owner or at law). Obviously to most of us it is clear that requiring this would break large chunks of the Internet, but that doesn't always stop the courts...
It was EU Directive 2011/77/EU. The law went through the Parliament in the late 00s, but got stalled by Denmark(?) and a few other countries blocking it. In 2011 Denmark changed its position, which meant it could get enough votes to pass through the EU Council. The new Parliament tried to block it (or call it for another vote) but they were stalled long enough for it to get through.
The change itself was pushed mainly by the UK and French recorded music industry, particularly the late EMI. Much of their balance sheet value was wrapped up in the copyrights of sound recordings from the 50s and 60s, so they had been trying for a long time to get the copyright extended (even though their own study on its effects showed it wouldn't help them much, and would be bad for everyone else).
Obviously it was too late to save EMI - perhaps if they'd spent more money investing in new music, and less in trying to cling on to the past, they'd have survived.
I may be wrong but I think Article QQ.H.12 is more relevant to the Cablevision ruling:
[US propose: Notwithstanding Article QQ.G.16 [limitations and exceptions] and Article QQ.G.14.3(b) [over the air broadcasting reference], no Party may permit the retransmission of television signals (whether terrestrial, cable, or satellite) on the Internet without the authorization of the right holder or right holders of the content of the signal and, if any, of the signal.]
Although that comes with the footnote:
[US: For purposes of this Article and for greater certainty, retransmission within a Party's territory over a closed, defined, subscriber network that is not accessible from outside the Party's territory does not constitute retransmission on the Internet.]
I don't know enough about the Cablevision ruling or current law to know whether or not that conflicts. My instinct is that the main Article would negate the ruling, but the footnote saves it. Perhaps someone with a greater understanding of the US legal position could comment.
It's a fairly standard process now. Country A expands copyright law. Then they push a treaty or agreement which encourages other countries to match them. Except the treaty has room for uncertainty; enough so that, before it is in force, the countries can claim that it is compatible with their existing laws, but afterwards can be used to justify an expansion.
And so one country goes further than the others (with duration that's currently Mexico, with the longest duration - and it's pushing for some longer copyright in TPP, along with the US). And then it starts again, with that country leading the way to push their position on others.
But at each level the treaty locks things into place, so even if things go wrong, copyright can never get reduced or shortened. Even if all the countries realise they don't actually want such strong laws, they can't do anything without re-negotiating the treaty (and possibly not even then, if it has investor-state dispute resolution procedures).
Copyright always gets bigger, never smaller.
There's a good explicit example of this in the recent change to UK copyright law (covered by Techdirt here). It extends copyright in various situations, including some where it returns works that were in the public domain back into copyright. But then there is a specific section that makes it clear that even if the drafters have screwed up somewhere and made copyright shorter for some works, the old term will still apply. It's a one-way process.
I just have no idea how going after lyrics sites is at all justified in an age where you can legally purchase an album digitally and thus never get the liner notes that contain the lyrics.
Because it reflects the mindset of many people connected with the music and film industry at the moment, fostered by years of propaganda and lobbying. It seems to have three main aspects:
* If I came up with something (no matter if it was inspired by anything else) I should have complete control over it;
* No one should be able to make any money from my stuff without my permission;
* If someone does make money from my stuff without my permission, even if they are willing to pay me some of the proceeds and are doing a positive service, they must be stopped and punished.
I can see why people hold these views and understand where they are coming from, but they are major stumbling-blocks in reform of copyright law and technological progress. I think it comes from modern copyright being based on ownership and permission, rather than exploitation with reasonable remuneration.
On the last point, I'm not sure if it is still the case but for a while the BBC had a policy whereby acronyms wouldn't be capitalised, while initialisms (like BBC) would be. Partly because of that, "Tardis" is a fairly common way of writing it.
The way I see it he has several challenges to his claim (which still seems to be in the "pay me money" stage, rather than the "I've talked to lawyers" one) - I think that if he had a case he wouldn't be telling newspapers.
* Showing that there is copyright in the Tardis; it's not quite clear what he is arguing he has copyright over - obviously not the idea of a blue police telephone box, or a time machine, maybe combining those two (with it being bigger on the inside) or the name. The name might be an interesting claim, although then there's the argument that it isn't a literary work on its own, but part of a larger one - the script for the first episode. Then there's the question of whether or not it is a substantial part.
* Showing that his father was the first copyright owner; that requires raising evidence that it was his father (and not anyone else working on the show) who came up with the idea. Wikipedia suggests that he did come up with the idea of it being a police telephone box, but that might not be sufficient if that itself isn't covered by copyright. If he was employed by the BBC (rather than commissioned) then the copyright would start with the BBC anyway.
* Showing that there was an informal licence and that it expired on his father's death; I think this is the one where a court is most likely to throw the case out. Copyright licences are binding on (most) successors in title, so if there was a licence that allowed the BBC to use the Tardis in other episodes, there is no reason why it would expire on his father's death. He would have to raise evidence as to the terms of the licence; given that it was informal and the circumstances (writing for a TV show), there may be a strong presumption against it.
That said, it worked for the estate of Terry Nation (credited with creating the Daleks and co-owning rights to them, with the BBC) - although I don't think that ever went to Court.
Plus it seems the BBC isn't being entirely honest with the truth. The statement from them reads "The BBC registered the TARDIS trade mark in the 1980s unchallenged and there have been no challenges since..." (the Independent getting it wrong and thinking they were talking about registering the copyright - which isn't registered in the UK). There seem to be about 15 trade marks registered for "The Tardis" or "Tardis", not all owned by the BBC, the earliest (now expired) from 1931.
While there is one from the 80s it only applies to books etc., the main BBC ones seem to come from 1996 - possibly after the film was released. I think it may have been those ones that the Met Police challenged unsuccessfully, but I'd need to do more research to check that.
Authorised will mean; it is within the scope of our duties under law (which is very broad).
Necessary will mean; if we don't do this we have no other way of getting the information we need to carry out our legal duties.
Proportionate will mean; there is no less intrusive thing we could do to achieve this effect.
Rigorous oversight means: we have a couple of retired judges who come round a couple of times a year and ask questions, are answerable to a minister (who listens to whatever we say) and a Parliamentary Committee (appointed by the Prime Minister) which can ask us questions, but only force us to give answers about historical things and has no legal duty to investigate anything.
Which isn't to say that GCHQ is evil. But their legal rules and oversight framework could be improved.
You couldn't before. This is an extension only to the copyright in the sound recordings, not in the songs.
The distinction is important because, by default, usually the record labels own the former, and the composers etc. own the latter.
This extension gives the record labels and extra 20 years of monopoly over their works against composers and authors, so even if the composers want to use the sound recordings in any way (such as publishing them themselves) they still need the labels' permission.
Reading some of what was said in Court today, there seems to have been a "firewall" between different groups. The Security Services told a senior police officer about the national security issue, and then he told some junior officers to carry out the detention, with a list of things to ask about that didn't give too much away.
I think this may have been a policy shift due to a case from a year or so ago when there wasn't a "firewall" and the Court ruled the stop was illegal because the people knew the guy was a terrorist (and thus couldn't question him for the purpose of working out if he was a terrorist).
So they're using this firewall thing to get around the limited purpose of the detention power. Which I hope the Court will not appreciate...
Well someone has to decide what is and isn't legal, and usually that decision is left to courts. From what I remember there was no claim that the newspaper was trespassing (which wouldn't have enabled him to press charges, because that isn't how English law works). Instead they gave one of the individuals invited a secret camera.
So he sued them for misuse of private information. Privacy does seem to be a more European concept than American, but the basic principles are that if someone has a legitimate expectation of privacy about something, it is illegal to breach that privacy (say, by publishing photographs) unless the breach is in the public interest.
By me being fine with the original ruling, that was the original English High Court ruling (and, for that matter, the ruling of the ECtHR in the case). I would suggest that the French ruling wouldn't hold in the UK due to it being relatively futile.
Mosley won his claim in England on privacy grounds. His argument, which the Court accepted, was that a national newspaper has no business in infiltrating a private event, taking pictures of it and publishing them. And they didn't help their case by re-running the story after being sued - the Court wasn't happy about that.
The issue of it being a Nazi-themed event came up because one of the newspaper's arguments was that it was in the public interest that an important public figure, with connections to the Nazis, was appearing to celebrate that and mock victims of the Holocaust. But the Court looked into this and found that they were speaking German because one of the women involved wanted that, and Mosley was fine with it due to speaking German. The Court also noted "Russian might have also been suitable, but unfortunately none of the participants spoke Russian."
While I'm fine with the original ruling, he does seem to be getting rather ridiculous in his quest for vengeance.
The first quote is the statement from MI5, and makes no reference to him being a journalist.
The second quote is about what the the Police believed (completely different group), who had the information in that form given to them from MI5. Thus is it perfectly possible that they didn't know that he may have been connected to journalism at the time. And as (according to the police) Miranda didn't make that claim to them, plus he denied that he was carrying any documents etc. for anyone else, they had *no reason* to believe he was a journalist.
Plus, when the second quote was given, there was no evidence before the Court to the contrary (as there was no witness statement from Miranda).
So this may not lying. Nor nearly as crazy as it sounds.
Legal arguments don't always make sense out of context...
tl;dr: This is a legal argument, it shouldn't be read as anything else. Legal arguments sometimes sound crazy because they are based on specific legal definitions or the evidence before the Court.
So, let's get this straight. The UK is arguing (1) that it knew enough that Miranda was carrying the Snowden documents, such that they believed he might help them get published and that's terrorism, but (2) they had no idea he might be involved in journalism, so there was no human rights issue.
This is about evidence/legal stuffs. The police's position is that Miranda never claimed to be a journalist and denied he was carrying the documents on behalf of anyone else. They're not saying they had no idea he was connected, but that they didn't believe he was (because, from their point of view, he was denying it).
The second strand of this is that, when the first legal arguments were made, there was no evidence before the court that Miranda was connected to journalism because Miranda hadn't made a witness statement. So rather than the UK Government lying, they're being a bit snarky about the fact that Miranda isn't giving evidence in his own case. That has now been fixed given that Greenwald has been added as a party to the case and given his own witness statement.
Now the Government's position is apparently that they don't have a position on whether Miranda was involved in journalism, as that is for Miranda to prove if relevant (which they argue it isn't, as even if he was, the documents weren't "journalistic material" and even if they were, the protections for "journalistic material" don't apply to Schedule 7 powers).
If anyone is interested, you can find the Home Office's original defence here, the Police's defence here and Miranda's claim here - all with analysis from an English barrister.
Just in case this wasn't clear, I campaigned against the Comms Data Bill, and if anyone was actually doing it, would campaign against Part I of RIPA. They are bad laws and, imho are being abused. I would certainly argue against the need for secrecy for these provisions.
But that doesn't mean that I think the MtI programme is illegal. Yes, it doesn't matter where the tap is; what matters is that the communications being tapped are being sent or received outside the British Islands. This then is defined as being the entity sending or receiving the individual transmission of data, not the initial sender or ultimate receiver (so anything that leaves the country or comes into it is fair game).
The extent of these programmes may have been kept from the Cabinet (other than Hague obviously, who signs the warrants) and/or Parliament (the Courts haven't really been involved), but now that they have been leaked, there have (apparently) been investigations within Parliament and the Cabinet into them, and both were happy that the programmes were legal. The ECtHR may disagree on human rights grounds, but that's just going to lead to another boost for the anti-human-rights brigade.
While some of the spin for the Comms Data Bill was that it was necessary for the security services (which they claim it is on the basis of changing technologies), the driving force wasn't the security services (who lobbied against it), but law enforcement. Again, that's why it came from the Home Office (both under Labour and the Coalition) not the Foreign Office. There is a huge amount of pressure on the Home Office from Police groups and Arms Dealers to pass it, because they are the ones to benefit.
The Mastering the Internet programme (and Tempora, which appear to be parts of it) are likely authorised through warrants under Part I of the Regulation of Investigatory Powers Act.
Whether or not they fully comply with that or other legislation is another matter. But the claim (yet to be rebutted) is that they are legal under the current regime.
However, the Part I RIPA regime has restrictions and limits on it, such as the warrants either needing specific targets, or being limited to "external communications" - which is why the main Tempora taps are just off the coast (as "external communications" covers anything sent or received outside the British Islands).
Under Part I RIPA, the surveillance technically doesn't have to be proportionate or necessary; the requirement is that the relevant Secretary of State (Hague) believes (reasonably or not) that it is proportionate and necessary. That said, the HRA imposes the duty to act compatibly with the relevant articles of the ECHR, even on GCHQ and the Cabinet, hence the current legal challenge to the Tempora etc. programmes in the ECtHR.
What the Comms Data Bill did was take the narrow, limited and restricted schemes in RIPA and make them much broader, giving the Secretary of State (then Theresa May) much greater discretion in authorising stuff. That it was pushed by Theresa May (and thus the Home Office) not William Hague (and thus the Foreign Office), along with what I've picked up from various articles and meetings/talks on it, suggest that the drive for it came from the police rather than security services. Again, they were already doing it and believe it to be legal (as did the Parliamentary Committee which investigated).
If you're interested in the detail of what they've allegedly been doing, and the legal basis for it, much of this is set out in Dr Ian Brown's witness statement to the ECtHR in this upcoming case.
The Snoopers' Charter or Communications Data Bill wasn't about authorising this sort of mass-surveillance by GCHQ. It was about expanding it to any other authority, including police, tax inspectors, local government etc.
GCHQ and the other security services were opposed to it, and lobbied against it, likely for the same reasons as above; they were afraid that if this law did pass, there would be much greater awareness of the sort of spying that was being done. It was being introduced because the police wanted access to this massive source of data they knew/suspected was already being gathered.
The legal regime the current spying is done under is that in the Regulation of Investigatory Powers Act. The reason it is causing a stir is because that programme requires a ministerial warrant for any interception, which targets "one person" or "a single set of premises." The thinking being that this power covered individual acts of targeted surveillance.
It seems that the Government may have interpreted this as allowing the "single set of premises" to be the place where the tap is (so the cable junction or whatever), and lasts for 6 months with indefinite renewals.
It may well be legal under domestic law, but that doesn't make it right.
The data retention doesn't require any data to be handed over to anyone - it just mandates that traffic data is stored for a certain period of time.
It doesn't even go as far as that; it requires the retention of data that fits within the appropriate categories if the service provider was creating the data in the first place. So if an ISP doesn't keep logs of anything, they're not required by the Data Retention Directive to make or retain them.
There are reasons many Governments are unhappy with the Directive and want it expanded...