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Posted on Techdirt - 22 June 2017 @ 6:50pm

Facial Recognition Software Brings Personalized Ads To The Supermarket

from the I-saw-what-you-bought-there dept

Facial recognition software is getting to the point where there are some very interesting things that can be done with it in everyday life. That includes really bad ideas like enabling the police to run record checks on everyone who passes in front of their body-worn cameras. But it also means that businesses can start applying the technology in novel ways. Here's what is happening on a trial basis in some German supermarkets and post offices, as reported by Deutsche Welle:

There's a camera and a screen set up by the check-out. A visual sensor scans the faces of waiting customers who have looked directly at the camera and detects whether they're male or female and how old they are.

Marketing company Echion is running the cameras and screens. The brands that advertise with them have clearly delineated target groups. If the visual sensor detects that enough people who fall into a company's target demographic are looking at the screen, an ad by this company will start playing.

Being shown ads that are likely to be more relevant to you is probably no bad thing. But once cameras are in place, it would be natural for shops to start using them for other more complex tasks, like spotting known shoplifters:

faces of individuals caught on camera are converted into a biometric template and cross-referenced with a database for a possible match with past shoplifters or known criminals. Some stores in the US give shoplifting suspects the option of allowing themselves to be photographed, rather than arrested. All this had been made possible by the arrival of networked, high-resolution security cameras and rapidly advancing analytical capabilities.

That's from a story in the Guardian last year, so it's likely that the technology has moved on considerably since then. It's easy to think of more troubling extensions to the idea of scanning shoppers: for example, linking up to other databases of troublemakers and ne'er-do-wells, or to selfies derived from social networks.

As well as obvious privacy issues, explored in the Deutsche Welle report, a more general concern is the normalization this latest application of facial scanning might produce. Once cameras coupled with facial recognition software are routinely installed in everyday settings like supermarkets -- with appropriate warnings -- perhaps we will begin to accept them as the norm, and barely notice their silent spread to other locations and situations.

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Posted on Techdirt - 21 June 2017 @ 6:31pm

Cheese: The Final Frontier For The Completion Of The Canada-EU Trade Deal CETA

from the blessed-are-the-cheesemakers dept

Remember CETA, the "Comprehensive Economic and Trade Agreement" between the EU and Canada? After years of on-off moments, including one last burst of uncertainty in March of this year, it finally seemed that everything had been settled, and that the deal would soon come into force. But it turns out that there is another, hitherto-unsuspected problem -- cheese:

Canada's CBC reported on its website that plans to have CETA (the Comprehensive Economic Trade Agreement) in place on 1 July were "threatened by a new cheese dispute". It said Europeans were upset at how Canada would allocate import quotas for new EU products, including 18,000 additional tonnes of cheese that Canada has agreed to import tariff-free.

Euractiv has all the details of the problem, which turns out to be bickering over how EU cheese producers will share that new tariff-free allowance. That's just last-minute haggling, and presumably will be solved with some appropriate sticks and carrots on both sides of the Atlantic. But an earlier report on the same site indicates there are deeper issues with CETA that remain unresolved:

In France, 110 MPs have demanded the opinion of the Constitutional Council on the legality of CETA. A ruling is due this summer. And Belgium, whose calls for additional guarantees had led to a confrontation with Brussels, has promised to take its concerns to the Court of Justice of the European Union in the coming weeks.

Most recently, it is France's new President Emmanuel Macron who has put the issue back on the negotiating table, promising in the last days of his presidential campaign to set up an expert committee to examine the CETA agreement before ratification.

The last one of these is particularly problematic. Macron has adopted a surprisingly muscular style in his first few days as French President, most famously in his handshake with Donald Trump, and won't want to be seen backing down from his promise to seek expert scrutiny of CETA before ratification. Looks like there's life in that cheesy CETA saga yet.

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Posted on Techdirt - 16 June 2017 @ 8:35am

Multiple German Courts Rule Photos Of Public Domain Works Are Not In The Public Domain

from the and-no,-you-can't-take-your-own,-either dept

Back in November 2015, we wrote about a bad situation in Germany, where a museum in Mannheim was suing the Wikimedia Foundation over photos of public domain works of art, which were uploaded to Wikimedia Commons. Sadly, since then, things have not gone well for the public domain. No less than three German courts -- in Berlin, Stuttgart and now again in a higher Stuttgart court -- have ruled against the use of the photos. The latest court judgment is available in full (pdf in German), and it contains some pretty worrying statements.

For example, the upper Stuttgart court confirms that the museum's photographs of the public domain works are not in the public domain, because they were produced by a photographer, and not some mechanical process like a photocopier. Under German law, if there is any kind of creativity involved, however minimal, then the photograph produced enjoys protection as a "Lichtbildwerk" -- literally, a "light image work" -- and is not in the public domain.

The court also ruled that not even photos of works in the public domain taken by a Wikipedia supporter to put on Wikipedia could be used freely by Wikipedia. Making a photo in this way "injured" the museum's ownership of the objects in question, the judges said, even though the works were in the public domain, as a report on the iRights site explained (original in German). In addition, the court said that the museum was within its rights to make it a condition of entry that no photos were taken.

These are clearly dreadful rulings for Wikipedians in Germany. The good news is that the Stuttgart court has allowed an appeal to the country's top court, the Bundesgerichtshof. If even those judges fail to see how crazy this situation is, and how harmful to the public domain, there is always the hope that the Court of Justice of the European Union, the highest court in the EU, might consider the case, but there's no guarantee of that.

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Posted on Techdirt - 14 June 2017 @ 6:33pm

Islamic State Using Small Drones Routinely In Iraq For Scouting And Dropping Explosives

from the drone-swarms-coming-up-next dept

Here on Techdirt we like to remind people that drones are not just death-dealing machines in the sky, but can also be a force for good. However, like any other technology, drones can and are utilized by the worst as well as the best. Inevitably, that includes terrorist groups like Islamic State (ISIS), as an interesting article from the Los Angeles Times reveals:

In the seven months of the Iraqi government's drive to recapture Mosul from the jihadists, small drones have become a signature tactic of the [ISIS] group: Their appearance on the horizon, loaded with a camera, signals that punishing mortar barrages will soon be on the way. Others guide car bombs to their target, or drop small explosives miles behind the front line.

Most of these drones come from the Chinese company DJI, generally regarded as the leading drone manufacturer in terms of market share. Clearly, the routine use of its products by ISIS is not the best publicity in the world:

Reports that Islamic State had used DJI products pushed the company in February to create a geofence, a software restriction that creates a no-fly zone, over large swaths of Iraq and Syria, specifically over Mosul.

But there are problems with geofencing. First, there is the issue of when a demand to geofence certain regions is legitimate, since answering that question requires a political judgment about who is really in power. Secondly, it's not that hard to get around geofencing, either by using quick fixes, or simply swapping to other drones that run on open source code that allows geofencing to be turned off.

Given that geofencing may not work, countermeasures are generally necessary. Those include rather crude solutions like shooting drones out of the sky with firearms, to more sophisticated ones like the DroneGun, from the Australia-based DroneShield Ltd., a company that specializes in counter-drone technology:

[the DroneGun] jams the GPS signal and radio linkages between the drone and its operator. The device, which sends out a jamming cone over a mile in length, forces the drone to either land immediately or to return to its base so that it can be tracked.

DroneShield's CEO, Oleg Vornik, already has some thoughts on what terrorists will do next:

"we believe organizations like ISIS will begin deploying swarms of drones. If you saw the Super Bowl halftime, you would have seen dozens of drones with little lights on them moving in a choreographed fashion," Vornik said. "That technology can be used to load grenades onto a large number of drones."

In other words, as drones continue to develop new and potentially exciting capabilities, so terrorists will eagerly embrace them -- just like everyone else.

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Posted on Techdirt - 8 June 2017 @ 6:30pm

Two Big Copyright Cases Sent To Top EU Court: One On Sampling, The Other On Freedom Of The Press

from the metall-auf-metall-auf-metall-auf-metall dept

Back in 2012, Techdirt wrote about one of the longest-running copyright sagas. It involved a 2-second rhythmic sample from the Kraftwerk track "Metall auf Metall", which was used by the German rapper Sabrina Setlur in a single called "Nur Mir". After the case had ping-ponged around various German courts for 12 years, a decision by Hamburg's highest regional court seemed to be the end of the matter, as Tim Cushing described in his comprehensive post. But in 2016, Germany's constitutional court took a look, and now a press release from the country's highest court (original in German), the Bundesgerichtshof (BGH), informs us that the case is still not yet over, and that it is moving up a level. The BGH has asked the Court of Justice of the European Union (CJEU), the top court in the EU, to clarify some basic points of law. A post on the IPKat blog runs through the details, and notes that one of the issues is:

What role the rights granted by the Charter of Fundamental Rights of the European Union plays: in particular, what is the relationship between copyright protection (Article 17(2)) and freedom of the arts (Article 13)?

That's asking a pretty deep question about copyright, and its relationship to creativity. As it happens, the same BGH has referred another copyright case to the CJEU asking equally important questions about that the role and limits of copyright (original in German). Here's IPKat again:

The second reference (I ZR 139/15 - Afghanistan Papiere) has been made in the context of litigation between the German Government and German newspaper WAZ over the unauthorised publication by the latter of the so called 'Afghanistan Papers', ie confidential military reports on the operations of the Germany armed forces in the region in the period 2005-2012.

Exciting stuff. Equally exciting, albeit in a different way, are the key questions the BGH wants the CJEU to answer:

can copyright protection be trumped by the need to safeguard freedom of the press and freedom of information? Or can fundamental rights be even directly invoked to prevent enforcement of copyright?

There is probably no need to note that this question goes to the very heart of copyright protection, and will revive the longstanding discussion around the scope of protection.

Indeed. These are two very big copyright cases whose outcomes could have a major impact on the contours of copyright law in the EU, and maybe even beyond.

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Posted on Techdirt - 8 June 2017 @ 8:33am

Strong Crypto Is Not The Problem: Manchester And London Attackers Were Known To The Authorities

from the adding-hay-to-the-stack-makes-it-harder-to-find-the-needles dept

Soon after the attack in Manchester, the UK government went back to its "encrypted communications are the problem" script, which it has rolled out repeatedly in the past. But it has now emerged that the suicide bomber was not only known to the authorities, but that members of the public had repeatedly warned about his terrorist sympathies, as the Telegraph reports:

Counter Terrorism agencies were facing questions after it emerged Salman Abedi told friends that "being a suicide bomber was okay", prompting them to call the Government's anti-terrorism hotline.

Sources suggest that authorities were informed of the danger posed by Abedi on at least five separate occasions in the five years prior to the attack on Monday night.

Following the more recent attacks on London Bridge, the UK prime minister, Theresa May, has gone full banana republic dictator, declaring herself ready to rip up human rights "because terrorism". But once more, we learn that the attackers were well known to the authorities:

London attack ringleader Khuram Butt was identified as a major potential threat, leading to an investigation that started in 2015, UK counterterrorism sources tell CNN.

Butt was seen as a heavyweight figure in al-Muhajiroun, whose hardline views made him potentially one of the most dangerous extremists in the UK, the sources said Tuesday. The investigation into Butt involved a "full package" of investigatory measures, the sources told CNN.

Butt was filmed in a 2016 documentary with the self-explanatory title "The Jihadis Next Door", in which a black flag associated with ISIS was publicly unfurled in London's Regent’s Park. Even though police were present during the filming, they did not follow up that incident, according to the Guardian:

Police did not make a formal request for footage or information from the makers of a Channel 4 documentary that featured Khuram Butt, one of the London Bridge attackers.

The broadcaster of The Jihadis Next Door said no police requests were made for film or programme maker's notes to be handed over under the Police and Criminal Evidence Act or Terrorism Act.

The UK authorities were warned last year about another of the London Bridge attackers,Youssef Zaghba, by Italian counter-terrorism officials:

An Italian prosecutor who led an investigation into the London Bridge attacker Youssef Zaghba has insisted that Italian officials did send their UK counterparts a written warning about the risk he posed last year and monitored him constantly while he was in Italy.

Giuseppe Amato, the chief prosecutor in Bologna, who investigated Zaghba when he tried to travel from Italy to join Islamic State in Syria in March 2016, told the Guardian that information about the risk he posed was shared with officials in the UK.

Amato added that he personally saw a report that had been sent to London by the chief counter-terrorism official in Bologna about the Moroccan-born Italian citizen.

Manchester and London are not the only cases where the authorities were informed in advance about individuals. A 2015 article in The Intercept looked at ten high-profile terrorist attacks around the world, and found that in every single case, at least some of the perpetrators were already known to the authorities. Strong encryption is not the problem: it is the inability of the authorities to act on the information they have that is the problem. That's not to suggest that the intelligence services and police were incompetent, or that there were serious lapses. It's more a reflection of the fact that far from lacking vital information because of end-to-end encryption, say, the authorities have so much information that they are forced to prioritize their scarce resources, and sometimes they pursue the wrong leads and miss threats.

We wrote about this problem back in 2014, when an FBI whistleblower confirmed what many have been trying to explain to governments keen to extend their surveillance powers: that when you are looking for a needle, adding more hay to the stack makes things worse, not better. What is needed is less mass surveillance, and a more targeted approach. Until Theresa May and leaders around the world understand and act on that, it is likely that more attacks will occur, carried out by individuals known to the authorities, and irrespective of whether they use strong crypto or not.

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Posted on Techdirt - 2 June 2017 @ 10:46am

UK Government Department Says It Will Cost $7 To Send It An Email, But Only If You Are A Foreigner

from the no-real-reason,-we're-just-racist-bigots dept

Last June, the UK held a referendum on whether to stay in the European Union, or to make a British exit -- Brexit. The majority of those casting their votes -- but only 36% of the UK electorate -- chose to turn their backs on Europe and its people. Since then, the British government has been taking every opportunity to burnish its xenophobic credentials, and with some success: recent figures show that EU citizens who have been resident in the UK for years are leaving in droves.

But it seems that the UK government feels it hasn't punished those foolish enough to live beyond the white cliffs of Dover as much as it could, and has come up with a cunning new plan to show Jane and Johnny Foreigner they are not welcome in any way, shape or form. The government department that handles immigration and the granting of UK visas has just announced that there will be some additional discrimination, specifically:

customers [applying from outside the UK] who contact UK Visas and Immigration by email will be charged £5.48 [about $7]

While true-blue emails born in the pure digital air of Britain's sceptered isle can still be sent free of charge, any emails containing filthy foreign IP packets will be whacked with a $7 charge, presumably to have their electrons scrubbed clean of transmissible diseases and the smell of garlic.

The underlying message to people thinking about visiting the UK should therefore be clear: you and your pathetic tourist spending power are no longer wanted. Just like in the US.

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Posted on Techdirt - 26 May 2017 @ 3:36am

Wikipedians Join Push For Fair Use In Australia After Six Government Reports Recommend It

from the how-many-more-do-politicians-need? dept

People in Australia have been asking for the introduction of fair use as part of a broader copyright reform for a long time. Techdirt first wrote about it four years ago, then again last year, when the Australian Law Reform Productivity Commission produced one of the best reports ever written on the topic by a government body. Amazingly, most of its ideas, including a call for fair use, survived in the final version of that document, which appeared at the beginning of this year.

However, it turns out that those are just a few of the six Australian government reports which have recommended adopting fair use for copyright in Australia. That emerges from a new entry on the English-language Wikipedia, called "History of fair use proposals in Australia". Its appearance is not simply down to some random urge to wiki: it's part of a new campaign by Wikipedians in Australia to put pressure on the government there to bring in fair use after so many official calls to do so. A post on the Wikimedia blog explains the current copyright situation in Australia:

all copying requires permission unless you are only using an insubstantial part of a copyrighted work (which is typically very hard to judge), or the Copyright Act provides a specific exception. The most important exceptions, the fair dealing exceptions, cover research, study, criticism, review, parody, satire, reporting the news, and professional advice as long as the use is "fair". Any use not for one of these purposes will be illegal, no matter how fair or reasonable it is, unless the government introduces a specific exception for it.

The post also points out ways in which Australia suffers as a result of the lack of fair use, for example:

Australian schools end up paying millions of dollars each year to use publicly accessible online content on websites that you use at home for free. No one is asking to be paid for using these websites, and the money rarely makes it to the copyright owner. Just as importantly, the use is transformative and socially beneficial. But because the Act doesn't say such uses are allowed, payment still has to be made.

As part of the campaign to raise awareness of fair use and its benefits, Wikipedians in Australia are adding a banner on the English Wikipedia, and Electronic Frontiers Australia and the Australian Digital Alliance have also set up a new site called Fair Copyright. It would be nice to think that all this hard work would lead to the recommendations of those Australian government reports being implemented at last. But as Techdirt noted last month, the copyright industry has built up a fund of $11 million specifically to fight changes to copyright law in Australia, so we can expect fierce resistance to any such moves.

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Posted on Techdirt - 25 May 2017 @ 11:58am

Brazilian Journalist Detained By UK Border Police For Reading A Book About ISIS

from the don't-judge-a-book-by-its-cover dept

Just last week, we reported on how a British human rights activist was held at London's Heathrow airport by UK border police, and risked prison for failing to hand over his passwords. Now we learn from the Independent about a Brazilian journalist, Diogo Bercito, who was detained at Manchester airport for reading a book during his flight there:

He was reading The Isis Apocalypse, by former adviser to the US State Department on terrorism issues Will McCants. It explores the ideology of the terrorist organisation and is often used as a reference for journalists and researchers.

That seems a perfectly reasonable thing for a journalist to be reading in order to understand the background to the Manchester attack, which Bercito had been sent to cover for his employer, the Folha de São Paulo newspaper. But it was apparently enough for the border police to pull him in for questioning. His passport and press credentials were taken away, and he waited for an hour before he was interviewed. The police officers then explained exactly why Bercito had been singled out for special attention: another passenger on his flight had felt "uncomfortable" about his choice of reading matter.

To be fair, you can't really blame the Manchester border police for following up on that complaint, given the terrorist attack that had taken place in the city just 24 hours before. But it's a sad reflection of the effectiveness of the authorities' scaremongering that some members of the public feel the need to report someone because he or she was reading about ISIS. What next: reporting people to the police for watching TV reports about terrorism?

After a few questions, Bercito was allowed to continue with his journey, with the friendly warning not to read his book in public -- in case other, similarly-nervous people thought he was a terrorist -- as well as a less-friendly threat:

Mr Brecito said they then returned his passport to him, but warned that "if they wanted, they could keep him for a long time".

And they're right -- as David Miranda discovered the hard way.

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Posted on Techdirt - 22 May 2017 @ 6:05pm

Financial Times Editorial: Time To 'Ditch' Corporate Sovereignty In Trade Deals

from the more-trouble-than-it's-worth dept

The European Union's top court has just handed down an important ruling about an otherwise minor trade deal between the EU and Singapore. The two sides initialled the text of the agreement in September 2013, and since then it has been waiting for the Court of Justice of the European Union (CJEU) to hand down its judgment. The issue is who gets to sign off on the deal: is it just the European Union, or do all 28 Member States of the EU need to agree too? There's clearly a big difference there, because in the latter case, there are 28 opportunities for the deal to be blocked, whereas in the former situation, the EU can simply wave it through on its own. The CJEU ruling (pdf) is fairly straightforward: the EU can sign and conclude trade deals covering most areas, but not for a few that must involve the EU Member States. Of most significance is the following:

The regime governing dispute settlement between investors and States also falls within a competence shared between the EU and the Member States. Such a regime, which removes disputes from the jurisdiction of the courts of the Member States, cannot be established without the Member States’ consent.

That is, the thorny area of corporate sovereignty, also known as investor-state dispute settlement (ISDS), is one of the few that requires the approval of all Member States. There's an interesting corollary to that ruling: if the EU wants to agree trade deals as quickly as possible, without the risk of Member States vetoing them -- as Wallonia did with CETA -- it should not include a corporate sovereignty chapter.

If it seems hopelessly naïve to think that might ever happen, here's an editorial in a ruthlessly hard-headed newspaper, the Financial Times (FT), recommending that it should (paywall):

[The CJEU's ruling] would be an excellent opportunity for the EU to go further, and reverse one of its bigger recent errors in trade policy. It should ditch the whole idea of having rules on investment, or at least rules allowing companies to sue a government directly, in FTAs. Such "investor-state" provisions have attracted intense opposition, not just from the Walloons but also from anti-corporate campaigners.

Removing these rules would ease the way for future deals. As they do not seem to encourage foreign direct investment, they are more trouble than they are worth. Freed from this unnecessary encumbrance, the EU would find it easier to sustain with its quiet run of closing bilateral trade pacts.

When Techdirt first started writing about corporate sovereignty, four years ago, it was an obscure area of trade policy that few knew about. The insiders who were familiar with the mechanism assumed it was a fixed and indispensable part of free trade deals. Now we have one of the most influential business newspapers calling it an "error" that should be "ditched," since ISDS chapters are "more trouble than they are worth." We've come a long way.

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Posted on Techdirt - 19 May 2017 @ 3:45pm

China To Require Drone Owners To Register, Just As Similar US Requirements Are Struck Down

from the not-what-you-might-expect dept

The South China Morning Post has a story about a new requirement for drone owners in China to register with the country's civilian aviation regulator starting next month. So is this yet another example of the Chinese authorities clamping down on a potentially subversive new technology by ensuring that drone use can be tracked? Well, that might be one reason, but it's probably also to do with this:

The move is the latest by Chinese authorities to tackle the drone safety threat after the illegal use of unmanned aerial vehicles (UAVs) made headlines at least a dozen times since the beginning of 2017.

The latest case was in April when more than 240 flights were disrupted by drones flying near Chongqing Jiangbei International Airport in southwest China, leaving 10,000 travellers delayed.

And if you still think this is another manifestation of China's authoritarianism, just using safety as a pretext, you might like to bear in mind that the US authorities have required drone owners to register their machines for over a year. However, those regulations have just been struck down by a federal court in Washington, D.C., and it's not clear what the FAA will now do. Perhaps more interesting than arguing about China's real motives here, is information in the South China Morning Post story about who is using this technology in China:

Once the preserve of the military, they are now used in a wide range of industries, from aerial surveillance of crops to search operations and delivery of medical supplies to remote or otherwise inaccessible regions. For Chinese consumers, drones have become the favoured gadget for taking aerial videos and photos.

There are also estimates of future growth:

The overall UAV market in China is expected to reach 75 billion yuan (US$10.9 billion) by 2025, of which consumer drones will contribute 30 billion yuan while agricultural and forestry drones, as well as security drones, are likely to account for 20 billion yuan and 15 billion yuan respectively, iiMedia Research said in a report last year.

It's worth noting that the company generally regarded as world's top drone maker, DJI, is also Chinese. Given the activity and importance of the sector, what's surprising is not that China has brought in registration requirements for drone owners, but that it has taken so long.

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Posted on Techdirt - 19 May 2017 @ 3:23am

British Human Rights Activist Faces Prison For Refusing To Hand Over Passwords At UK Border

from the digital-strip-search dept

As Techdirt readers will recall, in 2013 David Miranda was held by the UK authorities when he flew into Heathrow airport, and all of his electronic equipment was seized, in an act of blatant intimidation. His detention was under Schedule 7 of the UK's Terrorism Act, which, as its name implies, is supposed to be used only if someone is involved in committing, preparing or instigating "acts of terrorism."

That was clearly ridiculous in Miranda's case, and it's just as outrageous in the latest example of UK border bullying, this time against Muhammad Rabbani. He's a British citizen, and the international director of Cage, which describes itself as "an independent advocacy organisation working to empower communities impacted by the War on Terror." The Guardian fills in the background:

Rabbani, 35, from London, is involved through Cage in investigating torture cases. He said he was stopped at Heathrow in November returning from one of the Gulf states where he had been investigating a torture case allegedly involving the US.

He said he handed over his laptop and mobile phone but refused to provide his passwords. Although not a lawyer, he said the laptop contained information about the case and the client refused permission to release it. Rabbani was then arrested.

Rabbani later said that he felt that he had been subjected to a "digital strip search," and pointed out:

Using this power, [UK] officers can compel a person to surrender their passwords without cause and there's also no right to remain silent. There is nothing like this anywhere in the Western world.

Rather than dropping the case, this week the UK authorities have formally charged Rabbani under the Terrorism Act. He told the Guardian that he intends to fight, because the move has "serious implications" for journalists, lawyers and human rights, even though he faces three months in jail if he loses. This may be the first time Rabbani's been charged, but he is certainly no stranger to being stopped by the UK border officials:

Rabbani said he had been detained 20 times over the last decade by border officials and had handed over his laptop and mobile phone. On previous occasions, after refusing to hand over passwords, they were returned to him and he was allowed to go. But not on this occasion.

He's not alone in being subjected to this kind of harassment by the UK authorities. Figures published in an article on the Middle East Eye site reveal just how ineffective Schedule 7 examinations are at spotting terrorists:

More than 28,000 people were subjected to Schedule 7 examinations in 2015-16 resulting in about 10,000 intelligence reports being filed, according to a report by the Independent Reviewer of Terrorism Legislation.

About 500,000 are also estimated to have been subjected to pre-examination screening questions in the same period.

According to 2016 statistics, only 0.02 percent of stops lead to an arrest. An even smaller number lead to criminal charges.

The good news is that the UK court of appeal has already criticized Schedule 7 for forcing people to betray confidences and thus make it unlikely that others would trust them again with information in the public interest. That holds out the hope that Rabbani will ultimately win in the courts, since his case is very similar. The bad news, of course, is that the US is thinking of demanding passwords from every foreigner who visits the US.

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Posted on Techdirt - 17 May 2017 @ 6:28pm

US Court Upholds Enforceability Of GNU GPL As Both A License And A Contract

from the but-might-that-prove-a-mixed-blessing? dept

Free software dominates modern computing, from smartphones to supercomputers -- only the desktop remains a stronghold of proprietary code. Most of that free software has the Linux kernel at its heart, and a key element in the success of Linux -- and of thousands of other coding projects -- is the GNU General Public License. Although the first version of the GNU GPL was released by Richard Stallman back in 1989, and version 3 was issued in 2007, there have been surprisingly few court cases examining it and other open source licenses, and whether they are legally watertight.

A key case is Jacobsen v. Katzer from 2008. As a detailed Groklaw post at the time explained, the US appeals court held that open source license conditions are enforceable as a copyright condition. Now we have another important judgment, Artifex v. Hancom, that clarifies further the legal basis of open source licenses. It concerns the well-known Ghostscript interpreter for the PostScript language, written originally by L. Peter Deutsch, and sold by the company he founded, Artifex Software. Artifex was a pioneer in adopting a dual-licensing approach for Ghostscript. That is, you could either use the software under the GNU GPL, or you could avoid copyleft's redistribution requirements by taking out a conventional proprietary license.

Hancom is a South Korean company that produces Hangul, word-processing software that is primarily used in South Korea as an alternative to Microsoft Word. Artifex says that Hancom incorporated Ghostscript into its Hangul software, but neither sought a proprietary license, nor complied with the terms of the GPL by releasing the source code for the application that incorporated Ghostscript. As a result, Artifex took legal action, alleging copyright infringement and breach of contract. Hancom asked the court to dismiss Artifex's complaint on several grounds, but they were all denied. The most significant ruling is on Hancom's claim that the GNU GPL was not a contract. In her order, embedded below, Judge Jacqueline Scott Corley wrote:

The GNU GPL, which is attached to the complaint, provides that the Ghostscript user agrees to its terms if the user does not obtain a commercial license. Plaintiff alleges that Defendant used Ghostscript, did not obtain a commercial license, and represented publicly that its use of Ghostscript was licensed under the GNU GPL. These allegations sufficiently plead the existence of a contract.

That's an important new ruling. The judge also affirmed a result of the Jacobsen v. Katzer case, that even though code released under the GPL is available free of charge, damages could still be awarded because:

there is harm which flows from a party's failure to comply with open source licensing.

A useful analysis of the judge's order on the Lexology blog explains the pros and cons of bringing cases under copyright and contract law:

Generally, copyright claims may afford plaintiffs more damages and stronger remedies than contract claims. However, contract claims may help a plaintiff pursue a violator's worldwide conduct in a way that jurisdictional limits on copyright claims might not allow. Breach of contract claims may also be able to address reputational harm and other indirect non-economic benefits that a plaintiff might derive from enforcing open source license conditions. A breach of contract claim might also, in certain instances, allow for specific performance of open source obligations.

However, the fact that Artifex may now proceed, drawing on both copyright and contract law, raises the important question of how those interact. Mike wrote about this back in 2010, and pointed to a longer discussion of the legal questions involved. The decision by the District Court for the Northern District of California to allow Artifex to move forward with its case is certainly an important confirmation of the legal solidity of open source licensing. But it also brings with it important questions about the role of contracts in the world of free software.

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Posted on Techdirt - 15 May 2017 @ 6:30am

Hollywood Helps China Set Up National Surveillance And Censorship System To Tackle Copyright Infringement

from the how-long-before-the-MPAA-asks-for-the-same-in-the-US? dept

The Copyright Society of China has just launched a new site, called the 12426 Copyright Monitoring Center, whose job is to scan the entire Chinese Internet for evidence of copyright infringement. As a post on the EFF site explains, its scope is incredibly wide:

This frightening panopticon is said to be able to monitor video, music and images found on "mainstream audio and video sites and graphic portals, small and medium vertical websites, community platforms, cloud and P2P sites, SmartTV, external set-top boxes, aggregation apps, and so on."

Quite how it manages to monitor SmartTVs and external set-top boxes in people's homes is not clear, but the fact that it even claims to be searching them is pretty worrying, since it may be true.

When it finds content that matches material submitted to it by a copyright holder, the Center provides them with a streamlined notification and takedown machine, from the issuance of warning notices through to the provision of mediation services.

Complementary to that "streamlined" search and takedown system, the Center's technology provider offers a preemptive platform filtering solution:

The Content Filtering System automatically matches, retrieves, de-emphasizes, and automatically alerts or filters content related to copyrighted content or content in violation, by means of content matching technology; thereby it reduces the labor costs and the potential risk of content infringement. It can be applied to cloud disks and all kind of platforms including music, video, pictures, literature and other media contents.

Of course, such automatic filtering systems can't encompass all the subtleties of copyright law, and inevitably take a very crude approach that generally amounts to "when in doubt, block". Once in place, they can also easily be extended, for example to "content in violation", as here. The Chinese system comes from the company First Brave, which claims to be the "world's leading copyright monitoring and distribution service provider". That's probably just the usual hyperbole at the moment, but it's not impossible that it could become true as a result of moves in the EU.

There the main copyright legislation is being updated, supposedly to make it fit for the digital world. And yet, alongside the ridiculous snippet tax, which would create a new ancillary copyright for newspaper publishers (as if they needed any more monopolies), there is an even more dangerous proposal to require major online platforms to filter all user uploads before posting them. That's very similar to the Chinese content filtering system -- good news for First Brave -- and would be just as toxic to freedom of expression and privacy.

The Chinese upload filtering system on its own would be bad enough, but coupled with a similar requirement in the EU, it would pose a real threat in the US too. The copyright industry would doubtless claim that since it is being done everywhere else, there is no reason why Internet platforms should not roll out the same system in the US.

The head of the MPAA, Chris Dodd, used exactly this argument back in 2011 to call for online censorship in the name of reducing copyright infringement. It's noteworthy that two of the six major Hollywood studios that make up the MPAA, 21st Century Fox and Warner Bros., are listed at the bottom of the 12426 Copyright Monitoring Center's home page as partners in the new venture. Once the service has been up and running for a while, we can expect breathless reports from the MPAA on how well the surveillance and censorship system is working in China, along with yet more demands that something similar be set up in the US.

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Posted on Techdirt - 8 May 2017 @ 6:11pm

China's New Online Encyclopedia Aims To Surpass Wikipedia, And To 'Guide And Lead' The Public

from the great-wall-of-culture dept

China has a long history of producing encyclopedias that goes back thousands of years. One of the most famous works is the fifteenth-century Yongle encyclopedia, which had over 15,000 volumes, and is still the largest paper-based general encyclopedia ever created. More recently, the main publication in this field was the Encyclopedia of China, whose first edition had 74 volumes. Later, CD-ROM and online versions were added. The third edition has just been announced, and although it is not quite on the scale of the Yongle encyclopedia, it is ambitious in its scope:

The third edition of the Chinese Encyclopaedia is currently China's largest publication project, with more than 20,000 authors from universities and research institutes contributing to articles in more than 100 disciplines.

Designed to be the nation's first digital book of "everything", it will feature more than 300,000 entries, each about 1,000 words long, making it twice as large as the Encyclopaedia Britannica, and about the same size as the Chinese-language version of Wikipedia.

As the article in the South China Morning Post notes, access to Wikipedia is patchy in China. Most of the uncontroversial articles can be read, but searches for sensitive keywords such as "Dalai Lama" and even "Xi Jinping," have a habit of timing out. The new project is clearly designed to steer people towards safer opinions:

"The Chinese Encyclopaedia is not a book, but a Great Wall of culture," Yang Muzhi, the editor-in-chief of the project and the chairman of the Book and Periodicals Distribution Association of China, told senior scientists at a meeting at the headquarters of the Chinese Academy of Sciences (CAS) in Beijing on April 12, according to a report on the academy’s website the next day.

...

Yang told the meeting China was under international pressure and felt an urgent need to produce its own encyclopaedia to "guide and lead the public and society".

Speaking of Wikipedia, Yang went on:

"The readers regarded it to be authoritative, accurate, and it branded itself as a 'free encyclopaedia that anyone can edit', which is quite bewitching," he wrote. "But we have the biggest, most high-quality author team in the world ... our goal is not to catch up, but overtake."

China certainly has the resources to complete this huge project by 2018, its planned launch date. And once those 300,000 entries are available to "guide and lead the public," it's hard not to think that accessing the rival Wikipedia will be made so hard that most people will give up trying, and stick with the new Chinese Encyclopedia. At that point, the Chinese authorities will indeed have created a "Great Wall of culture" to complement that Great Firewall of China, both designed to keep out all those inconvenient ideas.

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Posted on Techdirt - 8 May 2017 @ 11:42am

Just Because Eli Lilly's Corporate Sovereignty Claim Over Patents Failed Doesn't Mean The Threat Has Gone Away

from the don't-relax-yet dept

Back in March, Mike wrote about how Eli Lilly's demand for $500 million "compensation" from Canada for rejecting two of its patents was finally thrown out. This was a long-running story, and was widely-regarded as a crucial test. Had Eli Lilly won, people suggested, it would have opened the floodgates for many such corporate sovereignty claims. Some also claimed that Eli Lilly's defeat showed what is officially known as the "investor-state dispute settlement" (ISDS) system was actually working well, and needed neither abolishing nor tweaking. But an interesting analysis by Cynthia Ho, who is a professor at Loyola University Chicago School of Law, suggests that things might not be so clear cut. Here are the key points she makes in a column published by Intellectual Property Watch:

It is true that Eli Lilly ultimately failed to persuade the investment tribunal that Canada's invalidation of two patents, based on its interpretation of "useful," compromised guarantees under NAFTA's investment chapter. But, it should be noted, this failure was principally evidentiary in nature. That is, Eli Lilly failed to provide adequate evidence in support of its claims, all of which were premised on its assumption that there was a dramatic change in the law. The tribunal, however, never questioned whether IP rights that were invalidated consistent with domestic law could constitute a violation of international investment law. Even more importantly, the tribunal never questioned whether patent laws consistent with TRIPS could nonetheless be challenged as compromising investment agreements. In addition, although some have suggested that Eli Lilly could not win, the tribunal explicitly stated that the claim was not frivolous.

As Ho points out, there are a number of troubling aspects to the tribunal's decision, even if it went against Eli Lilly. The main one is that countries still have the threat hanging over them of corporate sovereignty cases being brought and won because of disputes over patents and copyright. That would represent a radical departure from traditional ISDS cases, which are typically over physical assets like mines and oil fields. Moreover, she suggests that even if a new law were fully consistent with the main Trade-Related Aspects of Intellectual Property Rights (TRIPS) treaty, it could still be challenged using a corporate sovereignty claim -- in effect, setting ISDS tribunals above global agreements like TRIPS:

the tribunal stated that a judicial decision could form the basis of an investment claim without any actual denial of justice. In addition, while the Eli Lilly tribunal stated that it is inappropriate for ISDS tribunals to serve as an "appellate tier" over domestic decisions, it would be premature to assume, as some have suggested, that this single decision obviates any such concern. Importantly, there is no precedent in investor-state disputes and, unlike the [World Trade Organization] system where panel decisions tend to be consistent and uniformity is promoted with a standing appellate body, there are often inconsistent investor-state rulings with no current mechanism to promote uniformity.

The rest of Ho's column explores these and other concerns, and is well-worth reading. It may be that her fears are overblown, and that Canada's success in defending its patent system will discourage others from bringing similar cases. But given the unpredictable nature of ISDS cases, and the fact that a new wave of speculative funding is available, it is quite likely that investors will be emboldened to try their luck in this area again, irrespective of the Eli Lilly defeat.

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Posted on Techdirt - 3 May 2017 @ 6:30pm

Mounting Privacy Problems In Europe For Facebook's Acquisition Of WhatsApp

from the statement-of-objections dept

When it comes to online privacy, the European data protection authorities tend to be quite interventionist as they try to police the movement of personal data within and out of the EU. The concerns over the Safe Harbor and Privacy Shield frameworks are one manifestation of this. Another is the increasing EU scrutiny of Facebook's purchase of WhatsApp.

A couple of years after Facebook acquired WhatsApp, the latter announced that it was updating its terms and privacy policy so as to allow user data to be transferred to its parent company. Johannes Caspar, the Commissioner for Data Protection and Freedom of Information in Hamburg, where Facebook has its German headquarters, was unhappy with that move. He saw it as harmful to users' privacy, not least because there was no way to opt out of the data sharing. In September last year, he ordered Facebook to stop collecting data from WhatsApp, and to delete anything it had already brought across. Facebook appealed against the decision, and the Administrative Court of Hamburg has now handed down its ruling, which is to deny the US giant's request for Caspar's order to be revoked (pdf):

Facebook has appealed to the administrative court against the order in the preliminary proceedings. The goal was to repeal the immediate enforcement. The court rejected this request today and clarified the fact that it does not see any legal basis for the planned data exchange. Facebook can not invoke interests of its own business because the complete data exchange is neither necessary for the purpose of network security or business analysis nor for advertising optimization. Furthermore, the court clarifies that there is no effective consent from WhatsApp users for a data exchange with Facebook. As a result, the administrative court is making a clear consideration in the context of the preliminary legal proceedings: the interests of the approximately 35 million German WhatsApp users predominates the economic interest of Facebook in a suspension of immediate enforceability.

That's not the only problem Facebook faces in Europe. A little while after WhatsApp announced that it would be consolidating its user data with Facebook, the European Commission sent what is called a "Statement of Objections" to Facebook, alleging that:

the company provided incorrect or misleading information during the Commission's 2014 investigation under the EU Merger Regulation of Facebook's planned acquisition of WhatsApp.

The problem is that:

When reviewing Facebook's planned acquisition of WhatsApp, the Commission looked, among other elements, at the possibility of Facebook matching its users' accounts with WhatsApp users' accounts. In its notification of the transaction in August 2014 and in a reply to a request of information, Facebook indicated to the Commission that it would be unable to establish reliable automated matching between the two companies' user accounts.

Once WhatsApp and Facebook started carrying out precisely that kind of automated data matching last year, the Commission naturally wondered whether Facebook had been totally frank in its answers. The company had until January 31 to explain itself, and the Commission is now deciding whether it feels it was given misleading information. If it does, the consequences may be quite costly. Under EU law, Facebook could be fined 1% of its global turnover -- which would amount to around $179 million based on 2015 revenues. On its own, that probably wouldn't be too much of a problem for the deep-pocketed company. But combined with the ruling in Germany, and the possibility that data protection authorities in other countries will follow suit -- the law is the same throughout the EU, after all -- these European concerns about privacy are turning into a major a headache for Facebook.

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Posted on Techdirt - 2 May 2017 @ 6:15pm

New Tools Allow Voice Patterns To Be Cloned To Produce Realistic But Fake Sounds Of Anyone Saying Anything

from the shopped-images-are-so-yesterday dept

Fake images, often produced using sophisticated software like Photoshop or the GIMP, were around long before so-called "fake news" became an issue. They are part and parcel of the Internet's fast-moving creative culture, and a trap for anyone that passes on striking images without checking their provenance or plausibility. Until now, this kind of artful manipulation has been limited to the visual sphere. But a new generation of tools will soon allow entire voice patterns to be cloned from relatively small samples with increasing fidelity such that it can be hard to spot they are fake. For example, in November last year, the Verge wrote about Adobe's Project VoCo:

"When recording voiceovers, dialog, and narration, people would often like to change or insert a word or a few words due to either a mistake they made or simply because they would like to change part of the narrative," reads an official Adobe statement. "We have developed a technology called Project VoCo in which you can simply type in the word or words that you would like to change or insert into the voiceover. The algorithm does the rest and makes it sound like the original speaker said those words."

Since then, things have moved on apace. Last week, the Economist wrote about the French company CandyVoice:

Utter 160 or so French or English phrases into a phone app developed by CandyVoice, a new Parisian company, and the app's software will reassemble tiny slices of those sounds to enunciate, in a plausible simulacrum of your own dulcet tones, whatever typed words it is subsequently fed. In effect, the app has cloned your voice.

The Montreal company Lyrebird has a page full of fascinating demos of its own voice cloning technology, which requires even less in the way of samples:

Lyrebird will offer an API to copy the voice of anyone. It will need as little as one minute of audio recording of a speaker to compute a unique key defining her/his voice. This key will then allow to generate anything from its corresponding voice. The API will be robust enough to learn from noisy recordings. The following sample illustrates this feature, the samples are not cherry-picked.

Please note that those are artificial voices and they do not convey the opinions of Donald Trump, Barack Obama and Hillary Clinton.

As Techdirt readers will have spotted, this technical development raises big ethical questions, articulated here by Lyrebird:

Voice recordings are currently considered as strong pieces of evidence in our societies and in particular in jurisdictions of many countries. Our technology questions the validity of such evidence as it allows to easily manipulate audio recordings. This could potentially have dangerous consequences such as misleading diplomats, fraud and more generally any other problem caused by stealing the identity of someone else.

The Economist quantifies the problem. According to its article, voice-biometrics software similar to the kind deployed by many banks to block unauthorized access to accounts was fooled 80% of the time in tests using the new technology. Humans didn't do much better, only spotting that a voice had been cloned 50% of the time. And remember, these figures are for today's technologies. As algorithms improve, and Moore's Law kicks in, it's not unreasonable to think that it will become almost impossible to tell by ear whether the voice you hear is the real thing, or a version generated using the latest cloning technology.

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Posted on Techdirt - 28 April 2017 @ 9:35am

Want To Promote Breastfeeding? That's A Trade Barrier, Says US Trade Rep

from the milk-of-human-kindness dept

As most people know, babies who are breastfed from birth enjoy a wide range of benefits. Here's what the United Nations Children's Fund (Unicef), a global organization with nearly $5 billion of funding, has to say on the topic of breastfeeding:

It has profound impact on a child's survival, health, nutrition and development. Breast milk provides all of the nutrients, vitamins and minerals an infant needs for growth for the first six months, and no other liquids or food are needed. In addition, breast milk carries antibodies from the mother that help combat disease.

Breastfeeding also lowers the risk of chronic conditions later in life, such as obesity, high cholesterol, high blood pressure, diabetes, childhood asthma and childhood leukaemias. Studies have shown that breastfed infants do better on intelligence and behaviour tests into adulthood than formula-fed babies.

Formula milk, by contrast, can actively harm babies:

Formula is not an acceptable substitute for breastmilk because formula, at its best, only replaces most of the nutritional components of breast milk: it is just a food, whereas breast milk is a complex living nutritional fluid containing anti-bodies, enzymes, long chain fatty acids and hormones, many of which simply cannot be included in formula. Furthermore, in the first few months, it is hard for the baby's gut to absorb anything other than breastmilk. Even one feeding of formula or other foods can cause injuries to the gut, taking weeks for the baby to recover.

The case for breastfeeding, and against formula milk, seems pretty clear. But a new publication from the Office of the United States Trade Representative (USTR), the "2017 National Trade Estimate Report on Foreign Trade Barriers" (pdf), begs to differ. As a post on the Public Citizen site explains, the USTR calls out several countries for promoting breastfeeding over formula as a "technical barrier to trade" that might harm the profits of US industries. These are some of the polices that the USTR wants eliminated:

Hong Kong: The Report criticizes a Hong Kong draft code, designed to "protect breastfeeding and contribute to the provision of safe and adequate nutrition for infants and young children." USTR labels the policy as a technical barrier to trade due to its potential to reduce sales of "food products for infants and young children."

Indonesia: USTR labels a draft regulation in Indonesia that would prohibit the "advertising or promotion of milk products for children up to two years of age" as a technical barrier to trade.

Malaysia: USTR questions Malaysia's proposed revisions to "its existing Code of Ethics for the Marketing of Infant Foods and Related Products" that would restrict corporate marketing practices aimed at toddlers and young children.

Thailand: The report critiques Thailand for introducing a new regulation that would impose penalties on corporations that violate domestic laws restricting the "promotional, and marketing activities for modified milk for infants, follow-up formula for infants and young children, and supplemental foods for infants."

Although "technical barriers to trade" sound like a minor issue, they lie at the heart of modern trade deals. Traditional tariffs are now relatively low in many parts of the world, which means that the hard part of trade negotiations is often these "non-tariff barriers" (NTBs). Indeed, it was in large part a failure to agree on the removal of NTBs that caused the TAFTA/TTIP talks to grind to a halt, and then end up in limbo when the Trump administration took them over.

The USTR's attack on policies that promote breastfeeding over formula milk may seem extreme. But they are typical of the way the USTR views the world primarily through the optic of boosting the profits of US companies, with no thought to the harms this may inflict on people in other nations as a result. No wonder that trade deals are viewed so negatively in many parts of the world.

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Posted on Techdirt - 27 April 2017 @ 9:24am

Australia's Copyright Agency Keeps $11 Million Meant For Authors, Uses It To Fight Introduction Of Fair Use

from the not-very-fair dept

Even though stories of copyright collecting societies failing to distribute the monies that they collect to artists abound -- we wrote about one just a few weeks ago -- this doesn't seem to discourage others from continuing to bend the rules somewhat. Here, for example, is a story from Australia, where there is a major battle to switch to a US-style fair use approach to copyright. Naturally, the affected industries there hate the idea of allowing the public a little more leeway in the use of copyright materials. So Australia's copyright collection agency decided to build up a war-chest to lobby against such changes. The Sydney Morning Herald explains where the money for that fighting fund is coming from:

Australia's government-mandated copyright collection agency has been diverting payments intended for journalists and authors to a [$11 million] "future fund" to fight changes to the law.

Specifically, the monies come from payments made by educational establishments in order to use orphan works. That's a major change of the agency's policy that was not disclosed to the Australian government's Productivity Commission that oversees this area:

[The Copyright Agency] has been criticised in a Productivity Commission review that is before the government over the transparency of its accounts and its practice of retaining, rather than returning, millions of dollars collected from schools and universities on behalf of the owners of "orphan works" who can't be traced.

An examination of accounts shows that in a change not disclosed to the commission or to its members in annual reports, since 2013 it has been channelling that income into a fund set up to campaign against changes to the copyright law.

Between 2013 and 2016 the fund amassed [$11 million].

In other words, schools and universities have effectively been paying to lobby against changes to Australian copyright laws that would be very much in the interest of themselves, the public, and writers, who could use copyright materials more freely under a fair use system. According to the Sydney Morning Herald article, the top three executives at Australia's Copyright Agency are all paid around $200,000 a year to come up with these kinds of ideas. It would be interesting to know whether Australian authors consider that $600,000 well spent.

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