Glyn Moody’s Techdirt Profile


About Glyn MoodyTechdirt Insider

Posted on Techdirt - 28 July 2016 @ 3:25am

Not Just In The US: TPP Meeting More Resistance In Australia And Japan, Too

from the it-ain't-over-yet dept

It's remarkable how TPP, a previously obscure trade deal known only to a few specialists -- and to enlightened Techdirt readers, of course -- has suddenly become one of the hottest issues in the US Presidential contest. But it's important to remember that TPP is still a live issue in many of the other participating countries too. Malaysia seems to be the furthest along in the ratification process, and Peru is also moving forward. But there are signs that resistance could be growing, rather than diminishing, in some key nations. For example, the Australian Government's Productivity Commission has just released its Trade & Assistance Review 2014-15 (pdf), in which it says:

There are provisions in the TPP that the Commission has previously flagged as of questionable benefit. These include term of copyright and the investor state dispute settlement elements.
On the former latter, the report says:
The Australian Government should seek to avoid the inclusion of Investors-State Dispute Settlement (ISDS) provisions in bilateral and regional trade agreements that grant foreign investors in Australia substantive or procedural rights greater than those enjoyed by Australian investors.
On copyright, the Productivity Commission warns:
The history of Intellectual Property (IP) being addressed in preferential trade deals has resulted in more stringent arrangements than contained in the multilateral agreed Trade-Related Aspects of Intellectual Property (TRIPS). Australia's participation in international negotiations in relation to IP laws should focus on plurilateral or multilateral settings. Support for any measures to alter the extent and enforcement of IP rights should be informed by a robust economic analysis of the resultant benefits and costs.
It's not just Australia's Productivity Commission that is concerned. As the Guardian reports, Australia's opposition party, Labor, has also taken a firmer stance against corporate sovereignty chapters in TPP and elsewhere:
The opposition recently promised to review three of the major free-trade agreements signed by the Abbott and Turnbull governments -- the Korean FTA, the China FTA and the TPP -- in the hope of removing their ISDS clauses.

Labor says it will not accept ISDS clauses in new trade pacts. If existing ISDS clauses can't be removed, then Labor's position is stronger safeguards should be imposed on existing agreements to make it harder for corporations to sue the government.
Finally, there's some trouble brewing in Japan, as The Japan Times notes:
Although the Diet [Japan's parliament] is expected to resume discussions on the TPP and accompanying bills this autumn, the government is facing headwinds after a number of ruling bloc candidates from the Tohoku region were defeated in the July 10 Upper House election.

Observers say the losses in Tohoku, where farmers wield considerable influence, highlights lingering opposition to the pact.
That's not to say that TPP is doomed in either Japan or Australia. But coupled with the very real problems in ratifying the deal in the US, these latest developments emphasize that it is by no means certain that TPP will ever come into force.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

23 Comments | Leave a Comment..

Posted on Techdirt - 27 July 2016 @ 3:56am

This Is What It Was Like To Take Part In The Failed Turkish Coup, In The Words Of The Plotters

from the history-in-the-making dept

A year ago, we wrote about an interesting new organisation called Bellingcat. Although it's not clear what kind of project it should be called, it's easy to understand what it does: it takes publicly-available information from many sources, and tries to piece together the jigsaw puzzle of contemporary events. Its most recent analysis is an extremely topical piece of work:

A group of plotters of the failed Turkish coup attempt used a WhatsApp group to communicate with each other. Bellingcat has transcribed, translated, and analysed the conversation, thereby cross-referencing the messages with photos, videos, and news reports of the evening, night, and morning of July 15-16.
There are two sources for the WhatsApp conversation. One was widely circulated on Twitter soon after the coup, and consists of a video purporting to show messages on the phone of a plotter. The other source is a series of photos obtained by a journalist with Al Jazeera, although no further information on them is given. Naturally, claims that these are authentic need to be treated with caution, and this is where the Bellingcat method of drawing on diverse sources shows its strength. For example, a mention of the 66th Mechanised Infantry Brigade in the conversation is corroborated using other information from Twitter, Facebook and YouTube as follows:
By cross-referencing registration plates, military vehicles of the 2nd Armoured Brigade and the 66th Mechanised Infantry Brigade can indeed be spotted on photographs taken during the coup attempt in Istanbul. Number plates from vehicles from the First Army all start with "1" followed by five other numbers, thus "1XX XXX". While some military vehicles had their number plates covered during the coup attempt, others had not and often showed registration plates starting with "117" and "196", as Twitter users @Ald_Aba and @AbraxasSpa noted.

These numbers can be specifically attributed to the 2nd and 66th regiments, by looking at older photo and video material of both units, @Ald_Aba tweeted. As with regards to the numbers "196", photos uploaded to Facebook of the 2nd Armoured Brigade also show vehicles with the number "196". Similarly, the numbers "117" we also spotted on a vehicle of a YouTube video of the 66th Mechanised Infantry Brigade.
The extensive Bellingcat post consists of the conversation, in the original and in translation, as well as commentary of the kind quoted above. It provides extraordinary insights into the mechanics of a coup in the digital age.

At first, everything seems to be going according to plan, as key Turkish infrastructure is seized, including the state broadcaster. At around about midnight local time, one of the plotters in the WhatsApp group warns: "Privately owned TV stations must be silenced." But shortly afterwards, Turkey's President Erdoğan made his by-now famous speech using FaceTime while mid-flight, broadcast by the privately-owned TV stations the plotters had failed to shut down. The Bellingcat post explains:

President Erdoğan's speech is not mentioned in the group conversation, but the direct results of that speech are clearly noticeable: most units are asking for support as they are being surrounded by large crowd of civilians.
As a result, the plotters give increasingly desperate orders to use lethal force on the growing crowds, but to no avail. The last part of the WhatsApp transcription records the guttering of the short-lived attempted coup:
"Has the operation been cancelled Murat", Major Aygar asks.
"Yes, commander", he replies.
Major Aygar: "We're quitting??"
Colonel Doğan: "Which operation, all of it?"
Major Çelebioğlu: "Yes quit, commander."
Colonel Doğan: "Meaning?"
Major Çelebioğlu: "Yes, commander, operation aborted."
Colonel Doğan: "Shall we escape?"
Major Çelebioğlu: "Stay alive, commander. The choice is yours. We have not decided yet. But we have left our position. I'm closing the group. Delete the messages if you want."
It's fortunate for us -- and for future academics who will pore over them -- that the messages were not completely deleted. They survive to provide us with a unique record of a coup as it happened, told in the words of those who tried and failed to seize a major nation. On their own, the short bursts of conversation would be interesting, but hard to parse. With Bellingcat's characteristic annotations and amplifications, they become a gripping spectacle of history as it was being made, just two weeks ago.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

15 Comments | Leave a Comment..

Posted on Techdirt - 22 July 2016 @ 3:25am

China To Ban Ad Blockers As Part Of New Regulations For Online Advertising

from the whatever-next? dept

As we noted last week, China continues to find new ways to bring the online world under control. A post on the Adblock Plus blog has spotted yet another sector the Chinese authorities are bringing to heel: Internet advertising. Last week, China's State Administration for Industry and Commerce issued "Interim Measures for Internet advertising" (original in Chinese.) As the Adblock Plus blog post explains, the rules seek to pin down what exactly Internet advertising is, what is allowed, and what isn't:

Among other things the rules seek to target false or misleading online advertising for prescription medicine and tobacco; require government approval to run ads for health products, medical supplies, veterinary medicine and pesticides; necessitate that paid search results be clearly differentiable from organic results; and oblige advertisers to be responsible for the authenticity of their ad content.
That's all sensible stuff. But Article XVI (B) says that the following are prohibited:
the use of Internet services, network devices, applications etc. to disrupt normal advertising data, tampering with or blocking reasonable advertisements from third-party businesses, unauthorized loading of advertisements;
The Adblock Plus post points out that the ban on ad blocking is likely to have a major impact on Chinese users when it comes into force:
There are apparently 159 million people who block ads on their mobile devices in China. Desktop numbers are relatively low by comparison. All of them, though, are going to have a fundamental right snatched from them come September, when their government will take away their right to block ads.
Since it's hard to see the Chinese government really caring too much about the problems that ad-blocking software causes for online publishers, there is presumably another motivation behind this particular move. One possibility is that the Chinese authorities use the tracking capabilities of online ads for surveillance purposes, and the increasing use of ad blockers in China is making that harder. That clearly runs against the current policy of keeping an eye on everything that online users do in China, which is perhaps why the authorities want ad blockers banned in the country, despite the inconvenience and risks for users of doing so.

It remains to be seen how successful the Chinese government will be in stamping out such popular software, or whether this will be another regulation that is largely ignored.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

13 Comments | Leave a Comment..

Posted on Techdirt - 21 July 2016 @ 3:27am

Just As We Warned: A Chinese Tech Giant Goes On The Patent Attack -- In East Texas

from the we-don't-want-to-say-'we-told-you-so',-but... dept

Techdirt has been warning for years that the West's repeated demands for China to "respect" patents could backfire badly. In 2010, Mike pointed out that Chinese companies were starting to amass huge patent portfolios, which were soon used as weapons against foreign firms operating in China, most notably Apple. In another 2010 post, Mike wrote the following:

Huawei, the Chinese networking giant, has taken over the lead as filing the most international patents of any company. Just wait until American companies, whose execs complained about China "not respecting intellectual property," start getting sued in East Texas for violating Huawei's patents.
And guess what? That is exactly what has just happened, as The Wall Street Journal reports:
Huawei Technologies Co. said it has filed a lawsuit against T-Mobile US Inc., alleging the U.S. telecommunications carrier violated the Chinese company’s patents related to wireless networks.

In its complaint filed this week in the U.S. District Court for the Eastern District of Texas, Huawei said T-Mobile is using its patented technology without signing a licensing agreement.
There is an uncanny closeness between those two stories, even though six years separate them. In part, of course, that's because of Mike's ability to spot trends well ahead of others (no, he didn't tell me to write that...) But it's also down to the fact that this trend was really obvious to anyone who was able to consider the situation dispassionately. Sadly, that seems to exclude most of the people demanding that fast-growing economies around the world should start to "respect" patents.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

26 Comments | Leave a Comment..

Posted on Techdirt - 18 July 2016 @ 10:16pm

Defeat Of Philip Morris In Its Corporate Sovereignty Case Against Uruguay Likely To Open Floodgates For Tobacco Packaging Legislation

from the this-is-the-big-one dept

Last December, Techdirt wrote about Australia fending off an attempt by Philip Morris to use corporate sovereignty to overturn the country's plain-packaging regulations. As we pointed out, this wasn't proof that investor-state dispute settlement (ISDS) was no threat to national sovereignty, despite what some were claiming. Australia won on purely procedural grounds, not because the ISDS tribunal agreed that Australia had a fundamental right to regulate.

However, as the Techdirt article also mentioned, there is another tobacco case based on corporate sovereignty provisions in a trade deal -- the one which Philip Morris brought against Uruguay. It's fortunate that Uruguay decided not to roll over, but to contest the case -- something it could only do because of funding from a foundation set up by former New York mayor Michael Bloomberg -- because a tribunal has just found in its favor:

The award released on Friday brings to a close a six year dispute between the global tobacco giant and Uruguay, with an arbitral tribunal upholding Uruguay's right to do two things: prohibit tobacco companies marketing cigarettes in ways that falsely present some cigarettes as less harmful than others and require tobacco companies to use 80% of the front and back of cigarette packs for graphic warnings of the health hazards of smoking.

Uruguay's lawyers, the Boston-based firm Foley Hoag, praised the decision as having broad international consequences.
As that quotation from an article in The Mandarin suggests, this is a much more significant decision than the Australian one, because Philip Morris did not lose on procedural grounds this time. That establishes a crucial precedent for other countries that wish to introduce health measures affecting tobacco packaging. Several have been holding off from bringing in such laws until they knew what happened to Australia and Uruguay, and therefore what legal risks they would run. We can probably expect many more nations to move forward with new legislation now, not least because Philip Morris was also ordered to pay $7 million of Uruguay's $10.3 million costs (pdf).

Uruguay's regulations on cigarettes did not bring in plain packs of the kind adopted by Australia. Instead, the South American country currently limits how much of the cigarette packet can be used for branding, and also stops tobacco companies from making misleading claims that their products are "mild" or "ultra-light." However, The Mandarin notes that Uruguay will:

soon move towards all tobacco products being sold in generic packages, with even larger warnings of the harms caused by smoking, in an effort to further reduce smoking levels.
The latest defeat for Philip Morris clears the way for Uruguay to do that. Even more importantly, it also represents a high-profile failure of the tobacco company's strategy of using the threat of ISDS litigation to apply pressure to nations not to bring in legislation. It's hard not to think that the tribunal's refusal to sanction this approach is due to a massive growth in public awareness and public antipathy towards corporate sovereignty, an area that not so long ago was a sleepy corner of trade law familiar to only a few specialist lawyers.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

43 Comments | Leave a Comment..

Posted on Techdirt - 14 July 2016 @ 9:38pm

AstraZeneca Tries To Use 'Orphan Drug' Designation To Extend Patent Life Of Top-Selling Pill

from the evergreen-desire-to-hang-to-intellectual-monopolies dept

At the heart of copyright and patents there is -- theoretically -- an implicit social contract. People are granted a time-limited, government-backed monopoly in return for allowing copyright material or patented techniques to enter the public domain once that period has expired. And yet copyright and patent holders often seem unwilling to respect the terms of that contract, as they seek to hang on to their monopolies beyond the agreed time in various ways.

In the case of copyright, this has been through repeated extensions of copyright's term, even though there is no economic justification for doing so. In the realm of pharma patents, a number of techniques have been employed. One is "pay for delay." Another is the granting of "data exclusivity." And a third is the use of "evergreening." Techdirt wrote about the last of these a while back, so it's no surprise that companies have continued to "innovate" in this field since then. For example, AstraZeneca is trying to use a variant of evergreening for its anti-cholesterol pill Crestor. As a New York Times article explains:

Crestor is the company’s best-selling drug, accounting for $5 billion of its $23.6 billion in product sales last year. About $2.8 billion in sales were in the United States, where the retail price is about $260 a month, according to
Here's how AstraZeneca hopes to hold on to that lucrative market, even though its patent on the drug is now coming to an end, and it should be entering the public domain:
The company is making a bold attempt to fend off impending generic competition to its best-selling drug, the anti-cholesterol pill Crestor, by getting it approved to treat [a] rare disease. In an unusual legal argument, the company says Crestor is entitled to seven years of additional market exclusivity under the Orphan Drug Act, a three-decade-old law that encourages pharmaceutical companies to develop treatments for rare diseases.
In May, AstraZeneca won approval of Crestor to treat children with the rare genetic disease of homozygous familial hypercholesterolemia (HoFH ). That gives it an additional seven-year patent on the drug, but only for that particular -- very small -- market. However, the designation means that detailed prescription information about using Crestor to treat children in this way must not be included on the label. AstraZeneca's clever lawyers are trying to turn that into an extended patent for all uses of the drug:
AstraZeneca immediately petitioned the F.D.A., arguing that if the correct dose for children with HoFH could not be on the generic label, then it would be illegal and dangerous to approve any generic versions for any use at all. That is because doctors might still prescribe the generic for children with HoFH and choose the wrong dose, posing "substantial safety and efficacy risks."
Needless to say, AstraZeneca was only asking for generic versions to be kept off the market for another seven years for safety reasons, not because doing so would bring it billions more in exclusive sales to the general population. Of course.

The New York Times article goes into more detail about the fascinating legal background to AstraZeneca's argument here, and notes that other drug companies have tried the same approach in the past, without success. Even if this particular ploy does fail again, we can be sure that pharma companies will be back with other sneaky ways of extending their patent monopolies -- implicit social contract be damned.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

19 Comments | Leave a Comment..

Posted on Techdirt - 13 July 2016 @ 9:58pm

China Forbids The Use Of English Words In Mobile Games

from the not-as-crazy-as-it-looks dept

Techdirt has run many articles about China's direct assault on Internet freedom. Indeed, its attempts to muzzle online dissent are so all-encompassing you might think it has run out of things to censor. But you'd be wrong: China is now reining in games for mobile phones, as a post on Tech in Asia explains:

A little over a month ago, Chinese censorship bureau SAPPRFT announced new rules that require every mobile game launched in China to be pre-approved by SAPPRFT (already-launched games will have to get retroactive approval before the grace period ends in October). Before the rules had even gone into effect, developers and analysts alike were predicting things could be bad, and that the rules might dismantle China’s indie mobile gaming scene entirely.
Making sure games aren't seditious in any way might be expected, but there's a rather weird twist to this latest move:
One developer's rant has gone viral in the Chinese web after their game was supposedly rejected by SAPPRFT for containing English words. Not offensive English words, mind you, but completely innocuous ones like "mission start" and "warning." "I'm really fucking surprised," wrote the developer of the rejection.

Another developer confirmed that their game had been rejected for the same reason: including English words like "go" and "lucky." SAPPRFT's rules also forbid the use of traditional Chinese characters.
The use of English here is hardly subversive. The words in question form part of a global gaming language that has little to do with either the US or the UK. The ban on traditional Chinese characters, as opposed to the simplified ones that are generally used in China, is more understandable: Taiwan still uses the traditional form, so their inclusion might be seen as some kind of subliminal political statement.

The consequence is likely to be fewer games from smaller Chinese software companies, who are less able to meet the stringent new demands. As the Tech in Asia post rightly points out:

We could be facing a future where China's entire mobile game catalogue consists only of the games produced by powerful corporations like Tencent and Netease, with no room for startups and indies.
And that is probably the real reason for this latest move: big companies tend to be far more willing to toe the government line than smaller independents, since they have far more to lose. So, as with other apparently arbitrary moves, the latest unexpected clampdown by the Chinese government looks to be yet another example of its shrewd and subtle control of the online world.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

7 Comments | Leave a Comment..

Posted on Techdirt - 13 July 2016 @ 3:35am

France Might Allow NGOs To Sell Public Domain Seeds To Non-Commercial Buyers. Might?

from the so-what's-the-problem? dept

When Techdirt has written about seeds in the past, it tended to be in the context of patents, and how Big Agribusiness is trying to use multiple layers of intellectual monopolies to prevent patented seeds from entering the public domain. By contrast, seeds that are already in the public domain -- that is, owned by no one and thus everyone -- ought to be unproblematic. But an interesting story in Intellectual Property Watch indicates that's not the case in France:

the French Senate is due to consider a bill on biodiversity for the third time. That bill, which could be modifying several legislations, might allow for the sharing and selling by non-governmental organisations of seeds in the public domain to non-commercial buyers, which is so far not permitted under the current French legislation, according to sources.
The fact that non-governmental organisations are currently not allowed to sell public domain seeds to non-commercial buyers seems curious, to say the least. The issue seems to be about governmental control, since the new law:
would allow NGOs already sharing and selling seeds to individual gardeners, which are not on the French National official seeds catalogue, to legalise their activities, and escape prosecution, according to a press release [pdf] (in French) from Kokopelli, one of those associations.
That's a reminder of how controlling seeds was a key government power back in the days when agriculture represented a far greater share of economic activity than it does now. Such control may have been justified back then in terms of ensuring that "official" seeds were the varieties they claimed to be, and of high quality. But it's surely time for restrictions on selling public domain seeds to be relaxed not just in France but everywhere they exist, to promote biodiversity and to offer a counterbalance to the increased control exercised by companies using patents.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

15 Comments | Leave a Comment..

Posted on Techdirt - 11 July 2016 @ 10:13pm

Sweden Considers Making DNA Donated Purely For Medical Research Available To Police And Insurance Companies

from the so-what-if-we-promised-we-wouldn't? dept

When it comes to biometrics, you really can't beat DNA. You can always erase your fingerprints, or wear contact lenses to fool iris scanners, but there's no way of changing all your DNA enough to make it unrecognizable (even with the new CRISPR technique). Couple that with the fact that we are shedding DNA everywhere we go -- leaving tell-tale markers on everything we touch -- and you have the perfect surveillance mechanism. That's why earlier UK plans to give police access to medical databases are problematic, to say nothing of Kuwait's mandatory DNA database for all citizens, residents and visitors. Now Rick Falkvinge has written a post about troubling moves in Sweden:

Since 1975, Sweden has taken a DNA sample from all newborns for medical research purposes, and asked parents’ consent to do so for this research purpose. This means that over time, Sweden has built the world's most comprehensive DNA database over everybody under 43 years of age. But now, politicians are considering opening up this research-only DNA database to law enforcement and private insurance companies.
As Falkvinge points out, this is not just a betrayal of a trust, it is totally counterproductive:
This is, of course, an outrageous and audacious breach of contract with the parents who were promised the sample would be used only for the good of humanity in terms of medical research. The instant there's a mere suspicion that this will be used against the sampled newborn in the future -- as is the case now -- instead of being used for the good of humanity as a whole, people won't provide the DNA database with more samples, or at least not enough samples to provide researchable coverage.
The risk that Sweden might proceed down this road is also a reminder that once such huge databases are created, it is almost inevitable that one day someone will come along and say: "since we have this information, surely nobody could object to it being used to catch terrorists/pedophiles/rapists etc. etc." And as the news from Sweden shows, initial promises that such sensitive data will only be used for research are worthless, since they can always be revoked later on, and there is no easy way of removing the data once it is on the database.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

26 Comments | Leave a Comment..

Posted on Techdirt - 11 July 2016 @ 10:42am

Polish Authorities Demand British Law Enforcement Interrogate Tor Exit Node Operator About Information He Doesn't Have

from the colossal-waste-of-time-and-effort dept

As numerous posts on Techdirt attest, the authorities really don't like Tor, even though the Onion routing system was developed by the US Naval Research Laboratory, not some terrorist hacker group. The latest jurisdiction to misunderstand how Tor works is Poland, as this report on Motherboard explains:

Polish authorities have requested British law enforcement to interrogate the node operator because of a 2014 forum post supposedly insulting the ex-mayor of a small Polish town; apparently an illegal act in Poland.
A letter from the District Public Prosecutor's Office in Bialystok, Poland, to the UK Home Office points to Article 212, paragraph 2 of the Polish Penal Code, which says, in sum, that characterising someone else in such a way that might "degrade them in public opinion or expose them to the loss of confidence necessary to occupy a given position […] is subject to a fine or the penalty of limitation of liberty."
The Tor exit node used by the person who allegedly wrote the problematic post is run by Thomas White, better known as TheCthulhu on Twitter, where his bio reads:
Technology and privacy activist. Hidden service dev. Turkey-certified terrorist. Radical giver of no shits.
It will therefore come as no surprise that White is unsympathetic to the request by the District Public Prosecutor's Office in Bialystok. Even better, he has posted part of his statement in reply to that request, which is well-worth reading. White points out that the Polish law in question seems to violate Article 19 of The Universal Declaration of Human Rights, further enshrined as Article 10 of the European Convention on Human Rights. He says that he accepts the ex-mayor in question may have found a statement about him to be humiliating or offending, but adds:
I have many times felt offended where his political party have made derogatory remarks concerning the LGBT community for example, or where his complaint is an attempt to trample upon the rights of others. The difference is that I seem to have the mental capacity to take the opinions of others on board and reason my views with them to make my points.
White concludes pretty much as you might hope and expect:
I can only reaffirm my position that I have no intention of assisting with the request from the Polish authorities
Of course, the great thing about Tor is that White couldn't help the Polish authorities even he wanted to, since he was just operating the exit node, and knows nothing about the origin of the Tor traffic he facilitates. The sooner governments learn this basic fact, the sooner they can stop wasting time and resources trying to extract information from people that don't have it.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

14 Comments | Leave a Comment..

Posted on Techdirt - 6 July 2016 @ 9:46pm

India's High-Tech Billion-Person Aadhaar Identity System Can't Cope With Real-Life Biometrics

from the well,-that's-awkward dept

We first wrote about India's Aadhaar system, which assigns a unique 12-digit number to all Indian citizens, a year ago. Mainstream media are finally waking up to the scale of the project, as this article in the Guardian indicates:

The Aadhaar scheme was launched in 2009, under former prime minister Manmohan Singh, but the current government, led by Narendra Modi, is credited with rolling it out across India. According to the latest figures in May 2016 from the Unique Identification Authority, more than a billion people have been given Aadhaar numbers. Within the next few months, the details of every person in India will be in the government database.
To allay privacy and surveillance concerns, the Indian government insisted initially that Aadhaar was to be purely voluntary. But as Techdirt reported earlier this year, it's quite clear that the government's intention is to get everyone on to the Aadhaar system, and to embed it ever-more deeply in daily life. The principal argument for doing so is that it will make India's bureacracy more efficient, help fight corruption, and make it easier for citizens to receive government support:
The data collected by the Aadhaar centres will be stored in a network of servers in the southern city of Bangalore. Information from the database can then be circulated to different authorities. The ID system, according to the government, will prevent welfare fraud and ensure subsidies and social security schemes are reaching the right people.
All laudable goals, but an article in The Times of India reveals the reality. In the Indian State of Rajasthan, 14 million people have dropped off the Aadhaar system. A major problem is that one of the key biometric identifiers -- fingerprints -- is proving unusable for precisely the groups of people that Aadhaar was supposed to help:
Hard manual labour flattens fingerprint patterns on the palm. Chances of the machines detecting them are really dim.

These patterns also fade with age. "I've never been a manual labourer, but at 70 the lines on my fingers are faint and the device never works with me too," says Aruna Roy of [the Indian social movement] MKSS.

Vaishali Devi of Kishangarh tehsil, Ajmer, complains she's been deprived of ration and pension for over three months. She was at the Jawab Do dharna in Jaipur for 20 days. With her was fellow villager Vanni Bai. For three months, she hasn't been able to collect her quota of supplies.
Another issue is that poor Internet connectivity makes it hard to check readings with the central Aadhaar databases in Bangalore, so many attempts are necessary before fingerprints are recognized, and the food rations can be given out. The good news is that there's an alternative approach:
In principle, the Unique Identity Authority of India, implementing agency for Aadhaar can issue a one-time password to the ration seeker's mobile phone if the system fails.
The bad news:
Many using the system can't afford mobile phones; some don't remember the number registered on their Aadhaar.
It sounds like getting India’s 1.29 billion population to use the Aadhaar system for routine daily transactions is going to be something of a challenge, to put it mildly.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

21 Comments | Leave a Comment..

Posted on Techdirt - 5 July 2016 @ 11:23pm

Diagnostic Patents Suffer Another Setback In US As Supreme Court Refuses To Hear Sequenom Appeal

from the outbreak-of-good-sense dept

In recent years, there have been a couple of really important US Supreme Court decisions in the biotech field. One is the 2013 judgment striking down gene patents. The other is a ruling from 2012 that rejected the patenting of basic medical diagnostics, in a case involving Mayo Collaborative Services and Prometheus Labs. The resultant loss for biotech companies in terms of devalued patent portfolios, and their reduced ability to control the market using intellectual monopolies, has been so serious that it is no surprise that there are periodic attempts to get these decisions mitigated through subsequent court rulings.

For this reason, the industry has been watching with great interest a case involving Sequenom, and its patent on a non-invasive pre-natal diagnosis test using the fact that fetal DNA is present in the blood plasma of expectant mothers. A lower court invalidated that patent on the basis of the Mayo decision, and Sequenom appealed to the Supreme Court to review the ruling. But a statement from the company has now dashed the biotech industry's hopes:

The Supreme Court of the United States denied [Sequenom's] petition to review decisions by lower Federal courts that the claims of Sequenom's U.S. Patent No. 6,258,540 ("'540 Patent") are not patent eligible under the patent eligibility criteria established by the Supreme Court's Mayo Collaborative Services v. Prometheus Laboratories decision. In the petition, Sequenom urged the Court to hear the case because the Court is uniquely suited to reconcile and interpret the patent eligibility criteria established in its Mayo decision. Sequenom will pursue no further appeal opportunities for review of the '540 Patent.
Although the industry will doubtless whine about how there is no incentive to produce new diagnostic tests, there's no evidence that research and development in this area has ground to a halt in the US since the Supreme Court ruling on Mayo. All that has happened is that obvious applications of natural biological phenomena have been removed from patentability. Given the inherent reasonableness of that, we can probably hope that further challenges to Mayo will also fail.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

11 Comments | Leave a Comment..

Posted on Techdirt - 1 July 2016 @ 3:25am

Two Courts Throw Out Turkish President's Bid To Obtain An Injunction Against German Media Boss

from the but-it-ain't-over-yet dept

Last month, Techdirt noted that the Turkish President, Recep Tayyip Erdoğan, had broadened his assault on free speech in Germany with even more ridiculous actions. As well as demanding that the German comedian Jan Böhmermann should be punished for an admittedly rather coarse satirical poem, Erdoğan went on to seek an injunction against the German media boss Mathias Döpfner for daring to say he laughed out loud when he read the ditty in question. Fortunately, not just one but two German courts have now (politely) told the Turkish president what he can do with his request, as EurActiv reports:

After failing to get an injunction from a lower court last month, Erdoğan also lost an appeal before the higher regional court in the western German city of Cologne.

The judges said they considered Doepfner’s letter of support "a permissible expression of opinion as protected under Article 5" of Germany’s constitution, the court said in a statement.
Unfortunately, that's not the end of the affair. First, as EurActiv notes:
Erdoğan could still seek recourse before Germany’s top tribunal, the Federal Constitutional Court.
Knowing Erdoğan, that remains a distinct possibility. Secondly, and more seriously, the main case involving Böhmermann has not been heard yet. And there it's not a matter of an injunction, but of time behind bars.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

14 Comments | Leave a Comment..

Posted on Techdirt - 29 June 2016 @ 11:23pm

TAFTA/TTIP Just Got Harder: Brexit Is 'A Midsummer Night's Nightmare' Says EU Trade Commissioner

from the massive-potential-win-for-humanity dept

After the dramatic and largely unexpected victory of the "Brexit" (Britain Exit) camp in the UK -- those who want the country to leave the European Union -- politicians around the world are trying to work out what the implications will be. For the UK, of course, it meant an immediate trashing of the UK pound against the US dollar; for the US, it meant the loss of a reliable ally within the EU camp. As The New York Times puts it:

No country shares Washington's worldview quite the way Britain does, they say; it has long been the United States' most willing security ally, most effective intelligence partner and greatest enthusiast of the free-trade mantras that have been a keystone of America's internationalist approach. And few nations were as willing to put a thumb as firmly on the scales of European debates in ways that benefit the United States.

Now that quiet diplomatic leverage -- including moderating European trade demands and strong-arming nations to contribute more to NATO military missions -- is suddenly diminished.
As that mentions, trade is one area where the UK played a key role for the US, and its departure from the EU will make negotiations for the TAFTA/TTIP deal, now dragging on into their fourth year, even harder, since the UK was one of the main countries pushing for it. The European Commission is worried: after the results of the Brexit vote were known, the EU's commissioner for trade, Cecilia Malmström, called it "A midsummer night's nightmare," (original in Swedish.) However, she also insisted that she would press on regardless:
I am determined to make as much progress as possible in the months to come. This is particularly true for our negotiations with the United States on a Transatlantic Trade and Investment Partnership.
But as points out, once the UK leaves the EU, TTIP won't be such an attractive deal for the US:
"We certainly lose an important market," said MEP Bernd Lange, the chair of the European Parliament's international trade committee, of the U.K. "In a way, that means losing leverage."
Losing that leverage will make it harder to wring concessions out of the US, which was not particularly keen on offering any even before. The USTR's lukewarm post-Brexit statement hardly gives the EU much hope of the US meeting its main demands:
The importance of trade and investment is indisputable in our relationships with both the European Union and the United Kingdom. The economic and strategic rationale for T-TIP remains strong. We are evaluating the impact of the United Kingdom's decision on T-TIP and look forward to continuing our engagement with the European Union and our relations with the United Kingdom.
The problem is that without some clear wins for the EU, it will be very hard to sell the TAFTA/TTIP deal to Europeans and the Members of the European Parliament (MEPs) who must ratify the deal once it is finished. A report on Reuters is already pessimistic about TTIP's chances:
The historic divorce launched by Thursday's vote will almost certainly further delay substantial progress in the Transatlantic Trade and Investment Partnership (TTIP) talks as the remaining 27 EU states sort out their own new relationship with Britain, trade experts said on Friday.

With French and German officials increasingly voicing skepticism about TTIP's chances for success, the United Kingdom's departure from the deal could sink hopes of a deal before President Barack Obama leaves office in January.
That view was backed up by the following new report:
French Prime Minister Manuel Valls on Sunday blasted a planned EU-US trade treaty, saying the ambitious deal was against "EU interests."

"No free trade agreement should be concluded if it does not respect EU interests. Europe should be firm," Valls told members of the governing Socialist Party, adding "France will be vigilant about this."

"I can tell you frankly, there cannot be a transatlantic treaty agreement. This agreement is not on track," Valls said.
Meanwhile, in an open letter to the EU heads of state and government, 240 European organizations have called for the TTIP negotiations to be abandoned now:
People across the continent have a greater awareness of trade deals than at any previous time. Any move to express renewed support for TTIP will be highly publicised and scrutinised across Europe. We therefore appeal to you to use this opportunity to heed public opinion and urgently withdraw the mandate for TTIP.
The UK probably does not care about the havoc Brexit is wreaking on TAFTA/TTIP, not least because it has its own huge problems in the area of trade. Once it leaves the EU, it will need to renegotiate all the trade deals that it currently enjoys as a result of being part of the European Union, as well as striking some new ones. Naturally, the most important of those would be with the US. Even if some kind of TAFTA/TTIP deal is achieved at some point -- possibly years down the line -- the UK will not be part of it. As a result, it needs to agree something with the US on its own.

That's not going be easy. A spokesperson for President Obama confirmed that the UK would not be getting any preferential treatment when it came to trade deals, and that it would have to wait its turn. As people are already pointing out, the UK's extremely weak negotiating position means that it is likely to end up with a really bad US deal:

Nick Dearden, director of Global Justice Now, said the "right-wing lurch of Brexit" could result in Britain signing up to "TTIP on steroids".
As well as its inability to haggle, there's another reason why the UK may sign up to something that is far worse than the current TAFTA/TTIP: the person seen as a likely successor to David Cameron as UK prime minister, Boris Johnson, thinks such a deal with the US would be an unalloyed boon. In 2014, he wrote a prophetic article in which he gushed as follows:
This pact is a massive potential win for humanity -- the closer economic union between two vast territories that share a tradition of democracy, free speech, pluralism: the Western values that are under threat in so many other parts of the world; and where almost everyone has English as a first or second language.

Trade between Europe and the US is already worth $4.7 trillion; this is the chance to go further. If the EU can't pull it off, we in Britain should offer to go first and do it ourselves.
It now looks increasingly likely that the UK will do precisely that. The big question is: will the US care?

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

41 Comments | Leave a Comment..

Posted on Techdirt - 28 June 2016 @ 11:23pm

US Suddenly Discovers Why Supranational Tribunals Are A Problem, Just As It Starts Losing In Them

from the probably-just-a-coincidence dept

There's a bit of a battle going on in an obscure part of the World Trade Organization (WTO) called the Appellate Body, which has extremely wide-ranging powers within the WTO:

It is a standing body of seven persons that hears appeals from reports issued by panels in disputes brought by WTO Members. The Appellate Body can uphold, modify or reverse the legal findings and conclusions of a panel, and Appellate Body Reports, once adopted by the Dispute Settlement Body (DSB), must be accepted by the parties to the dispute.
Here's what's been happening, as reported by Bloomberg:
The U.S. won't support the reappointment of Seung Wha Chang of South Korea to the World Trade Organization (WTO) appellate body, a U.S. official said at a meeting in Geneva.

"We do not consider that his service reflects the role assigned to the appellate body by WTO members in the WTO agreements," Deputy U.S. Permanent Representative Chris Wilson told members of the WTO dispute settlement body (DSB) May 23. "Any failure to follow scrupulously the role we members have assigned through these agreements undermines the integrity of, and support for, the WTO dispute settlement system."
As the article explains, that's not going down too well with other WTO members, including Brazil, the European Union, Japan, and South Korea, who are traditionally allies of the US in trade matters. So what exactly has Chang done to incur the wrath of the US?
The U.S. said it was troubled by four recent panel decisions that Chang was involved in because they "raised systemic concerns about the disregard for the proper role of the appellate body and the WTO dispute settlement system."
Which seems to be a polite way of saying that Chang hasn't been toeing the US line. That's confirmed by the following section from a WTO news item about the DSB meeting where this argument took place:
Canada, the European Union, India and Viet Nam added that the United States' statement of opposition [to Chang] based on previous Appellate Body decisions could create a dangerous precedent for other reappointment proceedings and affect an Appellate Body member's decision-making during their first term.
Here's one of those panel decisions that the US doesn't like:
In the fourth ruling -- which upheld China's allegations about U.S. duties on non-market economies -- the appellate panel "took a very problematic and erroneous approach" that risks turning the DSB into "one that would substitute the judgment of WTO adjudicators for that of a member's domestic legal system as to what is lawful under that member's domestic law," Wilson said.
The interesting part is the bit at the end there, where the US complains that the WTO's dispute settlement system is effectively overruling national law. Techdirt readers will recognize that as a common complaint about the tribunals that adjudicate on disputes between investors and governments -- the so-called "investor-state dispute settlement" (ISDS) system, aka corporate sovereignty. Until now, the US has been a solid supporter of these tribunals, so it's rather significant to see it moaning about the problem of uppity adjudicators here. It raises the question why the US is unhappy with the DSB tribunal, but doesn't seem to have a problem with those used in ISDS.

It might have something to do with the fact that the US has never lost a corporate sovereignty case -- something it uses to justify the inclusion of ISDS in TPP and TAFTA/TTIP -- but is increasingly on the wrong end of decisions at the WTO. As to why the US never loses ISDS cases, Ante Wessels, writing on the blog, has a provocative theory: he says the "Investor-to-state dispute settlement is a rigged system" that is tilted in favor of the US. Whether or not you agree with his analysis, it's certainly interesting to see how the US seems to be changing its mind on the value of supranational tribunals that can ride roughshod over domestic legal systems now that it finds itself on the losing side.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

24 Comments | Leave a Comment..

Posted on Techdirt - 23 June 2016 @ 8:33am

Russia's Problem (According To Russian Politicians): Not Enough Mass Surveillance

from the can't-be-too-careful dept

When you look back at Techdirt's coverage of Russia's attempts to control its people and shut down online dissent, it's unlikely you will be thinking to yourself: "What Russia really needs is more mass surveillance." But Russian politicians would disagree with you there, as they debate bringing in even more powers for the government:

A new bill in the Russian Duma, the country's lower legislative house, proposes to make cryptographic backdoors mandatory in all messaging apps in the country so the Federal Security Service -- the successor to the KGB -- can obtain special access to all communications within the country.

Apps like WhatsApp, Viber, and Telegram, all of which offer varying levels of encrypted security for messages, are specifically targeted in the "anti-terrorism" bill, according to Russian-language media. Fines for offending companies could reach 1 million rubles or about $15,000.
That's from a report in The Daily Dot. But it appears there's another angle here, too, as The Moscow Times explains:
The Russian State Duma has recommended new anti-terrorism measures requiring telecommunications operators to store phone and Internet records for three years.

Companies are currently only required to record and store connection details for six months. The new law would change the system to ensure that the content of any call or message would be saved for half a year, while the connection details would be stored for three years, the Interfax news agency reported Friday. All information would be available to state officials "on demand," the Meduza news website reported in May.
Of course, being able to read encrypted messages or inspect the internet activities of Russians for the last three years is hardly enough to keep everything locked down: what about all those websites stirring up trouble? The new measures wouldn't deal with them, would they? But don't worry, Russia's plucky Attorney General has spotted the problem, and is on it, as the Meduza site informs us:
Russian Attorney General Yuri Chaika has proposed granting regional prosecutors the authority to block websites without any judicial oversight, if the websites spread information about preparations for unsanctioned political demonstrations and calls to mass unrest.
Well, that's a relief: I was beginning to worry that Russia might be losing control of the situation.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

23 Comments | Leave a Comment..

Posted on Techdirt - 17 June 2016 @ 11:46am

Top EU Court Advisor Makes A Strangely Sensible (But Only Provisional) Copyright Ruling On The Lending Of eBooks

from the evolutionary,-not-revolutionary dept

The Court of Justice of the European Union (CJEU), the EU's highest court, has a slightly unusual procedure for delivering its judgments. After a case has been referred to it by a national court, one of the CJEU's top advisors, known as an Advocate General, offers a preliminary opinion. This is meant to provide guidance to the judges considering the case, and generally indicates how the CJEU will rule. But it is by no means binding, and judges have been known to go completely against the advice offered to them. Let's hope that doesn't happen in a copyright case currently before the EU court.

The library association of the Netherlands wants to lend out ebooks as well as the dead-tree kind, but is concerned that the relevant EU directive on the rental and lending rights of books does not cover the digital ones. So it decided to take pre-emptive legal action against the Dutch organization tasked with collecting payments for authors, seeking a declaratory judgment from the court that it could indeed lend out ebooks without any problems. Since deep questions of EU law were involved, the District Court of The Hague in the Netherlands referred the case to the CJEU. That, in its turn, triggered a preliminary response from Advocate General Szpunar (pdf) as follows:

In today's Opinion, Advocate General Maciej Szpunar takes the view that the making available to the public, for a limited period of time, of electronic books by public libraries may indeed come within the scope of the directive on rental and lending rights.
He points out that the reason ebooks aren't mentioned in the EU directive is that the technology was still in its infancy, and so the question wasn't considered by the lawmakers.
He thus suggests that a 'dynamic' or 'evolving' interpretation of the directive should be applied, arguing, inter alia, that the lending of electronic books is the modern equivalent of the lending of printed books. According to the Advocate General, such an interpretation alone will be capable of ensuring the effectiveness of the legislation in question in a sector experiencing rapid technological and economic development.
Recognizing that the law needs to be interpreted in a way that takes account of technological change ought to be simple common sense. But in the backward-looking world of copyright law, it isn't -- even the tiniest advance has to be fought for, and can take years of effort. So the Advocate General's clear statement of that principle here is welcome. Of course, there's still plenty that could go wrong before this sensible view actually helps the group that asked for it. First, the CJEU must weigh in. As mentioned above, it would be surprising -- very surprising in this case -- if it diverged from the views of the Advocate General, but it could happen. After that, the case will be sent back to the District Court of The Hague to make the final ruling. Who knows? In a few years' time, EU libraries might even be given formal permission to lend out ebooks.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

Read More | 8 Comments | Leave a Comment..

Posted on Techdirt - 17 June 2016 @ 6:24am

Australian Electoral Commission Refuses To Allow Researchers To Check E-Voting Software

from the after-all,-it's-only-democracy-that's-at-stake dept

The fact that Techdirt has been writing about e-voting problems for sixteen years, and that the very first post on the topic had the headline "E-voting is Not Safe," gives an indication of what a troubled area this is. Despite the evidence that stringent controls are still needed to avoid the risk of electoral fraud, some people seem naively to assume that e-voting is now a mature and safe technology that can be deployed without further thought.

In Australia, for example, e-voting is being used for the elections to the country's Senate, but the Australian Electoral Commission (AEC) has refused to release the relevant software, despite a Senate motion and a freedom of information request. Being able to examine the code is a fundamental requirement, since there is no way of knowing what "black box" e-voting systems are doing with the votes that are entered. A story by the Australian Associated Press (AAP) explains why AEC is resisting:

The Australian Electoral Commission referred AAP to a decision by the Administrative Appeals Tribunal [AAT] in December 2015.

In that decision, relating to a freedom of information request, the tribunal found the release of the source code for the software known as Easycount would have the potential to diminish its commercial value.

"The tribunal is satisfied that the Easycount source code is a trade secret and is exempt from disclosure," the AAT said.
Placing trade secrets above the public interest is a curious choice, to say the least. It seems particularly questionable given Australia's recent experience with e-voting software problems:
When the ACT Electoral Commission released its counting code, researchers at Australian National University found three bugs which were subsequently fixed before an election.

When the Victorian Electoral Commission made its electronic voting protocol available to researchers in 2010, University of Melbourne researchers identified a security weakness which was then rectified before the state election.
As Techdirt readers well know, bugs are commonplace, and there's no particular shame if some are found in a complex piece of software. But refusing to allow independent researchers to look for those bugs so that they can be fixed is inexcusable when the integrity of the democratic selection process is at stake.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

44 Comments | Leave a Comment..

Posted on Techdirt - 15 June 2016 @ 11:22pm

TPP's Corporate Sovereignty Chapter A 'Threat To Democracy And Regulation'

from the wrong-direction dept

When the negotiations for the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada were concluded in September 2014, the text was finally released after years of secrecy. At the time, the Canadian Centre for Policy Alternatives put together what remains the best overall analysis of the main text's 1598 pages, in a series of studies collectively called "Making Sense of CETA." The same organization has now published a set of analyses looking at key aspects of TPP, entitled "What’s the big deal? Understanding the Trans-Pacific Partnership".

They are all worth looking at, but Techdirt readers will probably be particularly interested in one called "Foreign investor protections in the Trans-Pacific Partnership." It's by Gus Van Harten, a professor at Osgoode Hall Law School of York University in Toronto, Canada, and a well-known commentator on trade law and policy. The first part of his analysis provides a good summary of the world of corporate sovereignty, or investor-state dispute settlement (ISDS) as it is more formally known. The later section looks at some new research that provides additional insight into just how bad corporate sovereignty is for those of us who are not insanely rich.

For example, Van Harten quotes some recent work showing that 90% of ISDS fines against countries went to corporations with over $1 billion in annual revenue or to individuals with over $100 million in net wealth. Similarly, the success rate among the largest multinationals -- those with turnovers of at least $10 billion -- was 71% in the 48 cases they initiated, compared with a success rate for everyone else of 42%. So any claim that ISDS is equally useful to all companies, including small and medium-sized businesses, is not borne out by the facts.

Van Harten also mentions some interesting figures for the financial winners and losers across all known corporate sovereignty cases. The largest corporations ended up with gains of around $6 billion; the thriving ISDS legal industry took home $2 billion; very wealthy individuals received around $1 billion; and large companies picked up another $500 million. As for the countries that were sued by these groups, their losses totaled some $10 billion. That's an important reminder that nations cannot win ISDS cases: the best they can ever hope for is not to lose. And they often do lose, as the high cumulative fines indicate.

Another fascinating insight comes from looking at the percentage of foreign-owned assets (that is, inward foreign direct investment) in the US economy that are covered by ISDS in trade and investment agreements. Currently, it is only around 10%, which is probably why corporate sovereignty is not a big deal for the US public today. If TPP is ratified, another 10% of foreign investments will be covered. But if the TAFTA/TTIP deal with the EU goes through, it would add another 60% to the total -- a huge jump. That would mean that TPP and TTIP together would make nearly all foreign investments in the US subject to corporate sovereignty.

Van Harten highlights another key aspect of TPP that has not received much attention. He points out that TPP goes beyond the older North American Free Trade Agreement (NAFTA), which is between the US, Canada and Mexico, but does not solve its serious problems, despite claims to the contrary:

anything that is apparently better in the TPP compared to NAFTA will very likely be lost in practice because a U.S. investor can bring a claim under NAFTA instead of the TPP. Also, anything worse in the TPP would not be displaced by NAFTA because a foreign investor could choose to bring a claim under the TPP. If a foreign investor was unsure which agreement offered the best chance to win compensation, it could bring a claim under the TPP and NAFTA, making a different argument under each and getting compensation if it won under either.
In other words, TPP has been written in such a way that the public always gets the worst of both worlds. Van Harten's chilling summary of the corporate sovereignty provisions in TPP is worth quoting in full:
The TPP would take us in the wrong direction and be very difficult to reverse. It would expand the transfer of power to ISDS arbitrators from legislatures, governments, and courts. The arbitrators would not be accountable like a legislature. They would not be capable of regulating like a government. They would not be independent or fair like a court.

At the core of the TPP's threat to democracy and regulation is the uncertain and potentially huge price tag that its ISDS process would put on any law or regulation that is opposed by a large multinational company or a billionaire investor. The problem is not that foreign investors would be too big to fail; it is that the TPP would make the biggest and richest ones too risky to regulate.

The TPP was an opportunity for countries to step back from and reform the flawed system of foreign investor rights and ISDS. Instead, the TPP would expand the system massively. That decision is reason enough to reject the TPP in order to protect the established institutions of democracy, sovereignty, and the rule of law in TPP countries.
Anyone who has any lingering illusions that it might be worth signing up to TPP should read this new analysis, which will dispel them rapidly.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

24 Comments | Leave a Comment..

Posted on Techdirt - 15 June 2016 @ 3:26am

Ruling From EU's Top Court Confirms Copyright Levies Are A Ridiculous, Unworkable Mess

from the big-fat-nothing dept

In the last year, Techdirt has posted a couple of stories about court decisions that underline the fact that the EU system of copyright levies is an unworkable mess. A new ruling from the EU's highest court, the Court of Justice of the European Union (CJEU) has confirmed this once more, but for different reasons. The levies are supposed to compensate copyright holders for an alleged "loss" arising from copies made for personal use. The case concerns Spain's implementation of the system, which pays money directly from the state's budget. That's obviously much simpler than the complicated approach that involves collecting a levy placed on storage devices that varies according to their size -- a system used in other European countries. However, the CJEU has found a problem with Spain's method (pdf):

the Court notes that the [EU's] private copying exception is intended exclusively for natural persons who make, or have the capacity to make, reproductions of protected works or subject matter for private use and for non-commercial ends. It is those persons who cause harm to the rightholders and who are, in principle, required to finance, in return, the fair compensation payable to those rightholders. For their part, legal persons are excluded from benefiting from that exception.
The issue here is that under the 2001 EU Copyright Directive, only "natural persons" -- people -- are allowed to make personal copies, whereas "legal persons" -- companies -- are not. But in Spain, the private copying exception is funded from the general government budget, and therefore inevitably includes monies gathered as taxes from companies. The CJEU says that's not allowed, because it's the ones doing the private copying -- the "natural persons" -- who must pay, and no one else. The court pointed out:
it has not been established that there is a particular measure in Spain allowing legal persons to request to be exempted from contributing to the financing of that compensation or, at least, to seek reimbursement.
It's really not clear how that could be done in practice. Maybe by allocating a tiny tax rebate to companies by way of "reimbursement" for the copyright levy payment made from the state budget. But that would add yet another layer of complexity to the tax system, hardly a welcome outcome. It would be far simpler just to get rid of the unwieldy and anachronistic copyright levy system altogether. It's time to recognize that everybody has a fundamental right to make copies of stuff they own, and that the "fair compensation" for doing that is a big, fat nothing.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

26 Comments | Leave a Comment..

More posts from Glyn Moody >>