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Posted on Techdirt - 24 July 2015 @ 1:09am

Chinese Smartphone Leader Xiaomi Adds Special New Feature In Order To Enter US Market -- A Patent Hoard

from the I've-a-feeling-we're-not-in-Beijing-anymore dept

The smartphone sector is undergoing an upheaval at the moment, as Chinese manufacturers move up the global market share rankings. Already, the third, fourth and fifth places are occupied by Chinese companies: Huawei, Lenovo and Xiaomi. But it's the last of these that has emerged as the real star. Although Xiaomi was only founded in 2010, in 2014, the company sold 61 million phones, and hopes to sell 100 million in 2015. Much of that growth will come from outside China: Xiaomi has already started selling its products across Southeast Asia, especially in India, as well as in Mexico, Turkey, Russia and Brazil.

Now it is aiming to enter perhaps the toughest market of all: the US. But it knows that offering hugely-popular products at extremely competitive prices is not enough. If it wants to survive in the US -- never mind thrive -- there is one more thing that it must have, as this report in re/code explains:

Xiaomi international head Hugo Barra said on Thursday that the Chinese electronics company is looking to file more patents and strike more deals ahead of a launch into the U.S. market.

The move is essential if Xiaomi really wants to play in the U.S. and Europe, where intellectual property issues are taken seriously.



Xiaomi has already filed for 2,000 patents, Barra said in an interview with Bloomberg TV.

“Think of it as, like, a war chest of sorts,” Barra said, adding that the company is also systematically taking patent licenses, especially for standards-essential patents.
Well, "taking intellectual property issues" seriously is one way of putting it. You could also say that the US smartphone market has extremely high entry costs because of patent thickets, and that the only way to play there is to have your own patents that you can use as a bargaining chip with the other patent-holders. But it doesn't have to be this way. China's "gongkai" culture shows how rapid innovation can flourish in an environment where patents and copyright are largely ignored, and where every company builds on the work of others, and is built on in turn. And for those who think that the US approach is safer and easier to manage, it's worth considering the following comment in the re/code article:
Even if Xiaomi takes licenses for standards-essential patents from Ericsson and others, it still could face the type of legal action that Samsung faced from Apple.
In other words, companies that try to play strictly by US rules find out that the rules are not as clear-cut as they might seem. It will be interesting to see how Xiaomi fares in this strange new world, and whether the "war chest" it is busily acquiring is enough to protect it from the worst excesses of patent monopolies.

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Posted on Techdirt - 23 July 2015 @ 1:06am

Australia Ploughing Ahead With TPP Negotiations Even Though It Has Never Checked If Any Previous Trade Agreement Was Beneficial

from the who-cares-if-it-was-beneficial,-it-passed,-didn't-it? dept

As Techdirt has noted many times, one of the things that makes it hard to engage sensibly with so-called "trade negotiations" like TPP and TAFTA/TTIP is the secrecy surrounding them. Aside from the odd leak and any crumbs of information that drop from the negotiating table, one of the few things that are made public is the predicted benefit of participating in these agreements. To hear the politicians tell it, the models employed for this purpose prove that a country would be crazy not to sign up to whatever deal they are currently pushing. Given the central role played by these econometric models, you'd think more would be done to refine them and check whether they get it right. Here's what has happened on this front in Australia, as reported by the Sydney Morning Herald:

On the eve of negotiations expected to finalise a giant trans-Pacific free trade agreement with 11 of Australia's neighbours, the Department of Foreign Affairs has revealed that none of Australia's existing agreements has been subjected to an independent analysis to work out whether the claims made for it have stacked up.
That's rather strange, since Australia signed its Closer Economic Relations agreement with New Zealand 32 years ago and its free trade agreement with the US 11 years ago, so it's not as if the government there hasn't had time to collect and analyze the numbers. For the second of those agreements, we do have an independent investigation into how predictions compared with reality:
Ahead of the US Australia Free Trade Agreement the department published modelling conducted by the Centre for International Economics that said it would boost Australia's gross domestic product by $5.7 billion. A study conducted a decade later by the Australian National University found it had boosted trade not at all.
Given that sobering fact, and research that indicates trade agreements with Mexico and South Korea turned out to be equally disastrous for the US, you have to admire the shamelessness of governments that continue to commission these obviously-flawed models and trumpet their results, only to forget about them completely once they've done the job and the relevant agreement is signed and ratified.

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Posted on Techdirt - 22 July 2015 @ 1:30am

African Nations Agree To Plant Variety Treaty; Traditional Farmers' Group Shut Out From Negotiations

from the definitely-not-suspicious dept

Techdirt has been covering discussions to establish a harmonized pan-African legal framework for the protection of plant breeders' rights for a couple of years now, in particular the fears that this will benefit Western seed companies the most, at the expense of Africa's plant diversity and seed independence. As the African Regional Intellectual Property Organization (ARIPO) website reports, what is now known as the "Arusha Protocol for the Protection of New Varieties of Plants" has been agreed:

The ARIPO Protocol for the Protection of New Varieties of Plants has been adopted by the Diplomatic Conference that was held in Arusha, the United Republic of Tanzania on July 6, 2015.



The Protocol seeks to provide Member States with a regional plant variety protection system that recognizes the need to provide growers and farmers with improved varieties of plants in order to ensure sustainable Agricultural production.

Eighteen Member States of the Organization were represented at the Diplomatic Conference namely; Botswana, The Gambia, Ghana, Kenya, Liberia, Lesotho, Malawi, Mozambique, Namibia, Rwanda, São Tomé and Príncipe, Sierra Leone, Sudan, Swaziland, United Republic of Tanzania, Uganda Zambia and Zimbabwe.
As well as those African nations, a number of international organizations took part in the discussions: the World Intellectual Property Organization, the EU's Community Plant Variety Office, France's National Seeds and Seedlings Association, the United States Patent and Trademark Office and the International Union for the Protection of New Varieties of Plants. The inclusion of representatives from the US, EU and French plant organizations is indicative of some of the key driving forces behind the Arusha Protocol. That stands in stark contrast to a rather significant absence from the talks: the Alliance for Food Sovereignty in Africa (AFSA), an association that champions "Small African Family Farming/Production Systems based on agro-ecological and indigenous approaches." AFSA writes on its site:
Despite AFSA's well-established track record of constructive engagement with ARIPO on the Draft ARIPO PVP Protocol, and despite it being a Pan African network of African regional farmers and NGOs, working with millions of African farmers and consumers, AFSA was purposely excluded from the Arusha deliberations.
This is not the first time that AFSA has been unwelcome at ARIPO meetings, as we reported last year. That's presumably because AFSA has long-standing concerns about the whole move towards giving plant breeders greater rights in Africa. Here's its view on the new Protection of New Varieties of Plants (PVP) protocol:
The Arusha PVP Protocol is part of the broader thrust in Africa to ensure regionally seamless and expedited trade in commercially bred seed varieties for the benefit, mainly, of the foreign seed industry. Multinational seed companies intend to lay claim to seed varieties as their private possessions and to prevent others from using these varieties without the payment of royalties.

Germplasm developed by farming households over centuries is increasingly under threat of privatisation; and ecologically embedded farming practices risk being destabilised and dislodged. The broader modernisation thrust of which the Arusha PVP Protocol is an intrinsic part, is designed to facilitate the transformation of African agriculture from peasant-based production to inherently inequitable, inappropriate and ecologically damaging Green Revolution/industrial agriculture. Such a transformation will lead to many farming households being threatened with marginalisation or extinction, without alternative options for survival.
While AFSA is worried that the new Protocol will harm traditional cultivation practices, supporters claim that it will lead to more and better plant varieties being created, to the benefit of farmers. That would obviously be welcome, assuming it isn't simply a cover for multinational companies to privatize and industrialize Africa's food production. Unfortunately, the refusal to allow the participation of representatives of traditional African farming in drawing up the new Arusha Protocol has to raise fears that this is precisely what is planned.

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Posted on Techdirt - 21 July 2015 @ 1:06am

TPP Likely To Force Canada To Repeal Local Data Protection Laws

from the so-who-voted-for-that? dept

Techdirt has written a couple of times about European sensitivities regarding data protection, in particular when it comes to privacy rules requiring local storage of personal data. It turns out that Europe is not alone in its concern that agreements like TAFTA/TTIP and TISA could jeopardize this approach. An article in The Tyee points out that two of Canada's provinces -- British Columbia and Nova Scotia -- have requirements that sensitive personal data must be stored locally, and that they are likely to fall victim to TPP because the US insists the laws are "non-tariff barriers":

U.S. negotiators are pushing hard to eliminate national laws in TPP countries that require sensitive personal data to be stored on secure local servers, or within national borders. This goal collides with the B.C. Freedom of Information and Privacy Act and similar regulations in Nova Scotia, which are listed as "foreign trade barriers" in a 2015 United States Trade Representative (USTR) report.

According to that report, the B.C. privacy laws "prevent public bodies such as primary and secondary schools, universities, hospitals, government-owned utilities, and public agencies from using U.S. services when personal information could be accessed from or stored in the United States."
Irrespective of your views on whether such local storage requirements are reasonable or not, what's significant here is that TPP, ostensibly a trade agreement, may force Canada to repeal local privacy laws. That fact underlines why the secret nature of the negotiations is profoundly anti-democratic: matters are being decided behind closed doors that should rightly be debated openly.

Data flows are just one example: TPP and other "trade" agreements like TAFTA/TTIP and TISA will have profound implications for many aspects of everyday life in signatory countries. And yet the public in those nations will be able to provide almost no input into the negotiating process, largely on the grounds that the discussions are "just" technical adjustments to trade rules. Indeed, most people aren't even aware of what is being done in their name: a recent poll suggests that three in four Canadians have never heard of TPP, so the chances that a massive wave of public outrage might yet save those local data privacy laws are pretty close to nil.

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Posted on Techdirt - 20 July 2015 @ 3:45am

EU Proposes To Reform Corporate Sovereignty Slightly; US Think Tank Goes Into Panic Mode

from the who's-afraid-of-a-little-rebranding? dept

Back in May, we wrote about the European Commission's sharing "concerns" about corporate sovereignty chapters in trade agreements. The Commissioner responsible for trade, Cecilia Malmström, even went so far as to say that the present investor-state dispute settlement (ISDS) system was "not fit for purpose in the 21st century." But rather than removing something that is unnecessary between two economic blocs with highly-developed and fair legal systems, she instead proposed to "reform" it, and to start working towards an international investment court.

That idea was dismissed almost immediately by the US Undersecretary for International Trade at the Commerce Department, Stefan Selig. Despite that, the EU seems set on replacing today's corporate sovereignty with some kind of court. In a non-binding but important set of recommendations to the European Commission regarding TTIP, the European Parliament called for the following:

to ensure that foreign investors are treated in a non-discriminatory fashion, while benefiting from no greater rights than domestic investors, and to replace the ISDS system with a new system for resolving disputes between investors and states which is subject to democratic principles and scrutiny, where potential cases are treated in a transparent manner by publicly appointed, independent professional judges in public hearings and which includes an appellate mechanism, where consistency of judicial decisions is ensured, the jurisdiction of courts of the EU and of the Member States is respected, and where private interests cannot undermine public policy objectives;
The wording is extremely vague, and leaves plenty of room for a kind of ISDS-Lite to be agreed between the EU and US in TAFA/TTIP. Many in Europe regard the proposal as little more than a face-saving compromise that allows the opponents of ISDS to claim that "this is the end of ISDS in trade deals," while allowing supporters to maintain that it has merely been re-branded, rather than removed.

We don't know what the US government thinks of the idea, but we do have a fascinating post on the proposal from The Heritage Foundation, which describes its mission as "to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense." Its views on the EU's corporate sovereignty reforms are quite clear:

The EU's proposal, backed by a vote of the European Parliament on July 8 -- that the TTIP should establish a permanent investment court, not an ISDS mechanism -- is a bad solution in search of a non-existent problem. ISDS mechanisms work well to secure basic legal protections for a signatory state's nationals abroad. The U.S. should firmly reject the EU's proposal and insist that TTIP establish an ISDS.
The rest of the post provides rare insights into the thinking of the pro-ISDS, pro-big business camp in the US. Bizarrely, it describes corporate sovereignty tribunals as:
designed to safeguard fair, unbiased, and transparent legal processes by providing independent and impartial arbitration.
That's an odd description of processes that take place in secret, with no case law to guide decisions, no limits to damages, no right to appeal, and where the tribunal members are corporate lawyers who can also act for the same companies that appear before them in other cases, because there are no rules governing conflicts of interest. But more interesting than this topsy-turvy view of reality is the following revealing comment:
because any case inside the EU can ultimately reach the European Court of Justice (ECJ), and the ECJ is mandated to make decisions that promote deeper European integration, it is not clear how the U.S. can rely on the ECJ to rule fairly when the EU seeks to promote integration in ways that discriminate against the U.S.
Essentially, then, The Heritage Foundation objects to Europe's highest court doing its job of strengthening the European Union, and wants supranational corporate sovereignty tribunals as an option to overrule its judgements -- confirming critics' worst fears about ISDS undermining democracy. The post then goes on to list a number of problems that the Foundation sees with the EU's proposed international investment court, many of which again display a curious inversion of reality. For example:
[an investment court] would have limited accountability and few checks and balances.
That is precisely the situation with corporate sovereignty tribunals, which have no checks or balances, and no limits to their power, as clearly shown by the $50 billion award made against the Russian government last year. The post concludes:
The EU is advancing this proposal in a futile and wrong-headed effort to win over critics who are fundamentally skeptical about freer trade. These critics had not previously raised any objections to the many ISDS mechanisms to which EU nations are already party: They began to complain only when the U.S. became involved.
That's true, because previous trade agreements incorporated ISDS as a mechanism for rich Western countries -- including those in the EU -- to use to sue poor, developing countries. Since the latter had few, if any, investments in the Western countries, there was little or no risk that they would use corporate sovereignty against the richer nations. TAFTA/TTIP changes that situation dramatically. Both the US and EU have huge investments in each other: the European Commission estimates them as more than $1.75 trillion dollars in both directions -- a clear demonstration ISDS is not needed in order to encourage investors. If there is a corporate sovereignty chapter in TTIP, tens of thousands of companies on both sides of the Atlantic will gain the power to sue governments over policies they claim could impact their future profits adversely.

That is why critics have raised the issue now, and partly why the EU has proposed moving away from such a manifestly flawed approach. Given that it believes in "a strong national defense," it's curious that The Heritage Foundation is desperate to preserve a system that gives foreign investors such a powerful weapon to use against America.

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Posted on Techdirt - 17 July 2015 @ 2:30am

Another Reason Adopting 'Collect It All' Was A Bad Idea: China May Now Be Applying It To US Citizens' Personal Data

from the this-is-why-strong-crypto-is-your-friend dept

At the start of the year, we wrote about an important point made by Bruce Schneier and Edward Snowden concerning information asymmetry in the world of spying -- the fact that the US and the West in general have far more to lose by undermining security in an attempt to gain as much information as possible about other countries, than they have to gain. A fascinating analysis from Bloomberg indicates that this also applies to the "collect it all" mentality. The article raises the troubling possibility that both the huge OPM data breaches were not only the work of Chinese state actors, but part of a much larger plan:

Some investigators suspect the attacks were part of a sweeping campaign to create a database on Americans that could be used to obtain commercial and government secrets.

"China is building the Facebook of human intelligence capabilities," said Adam Meyers, vice president of intelligence for cybersecurity company CrowdStrike Inc. "This appears to be a real maturity in the way they are using cyber to enable broader intelligence goals."
The Bloomberg article suggests that China started gathering first travel records, then health records, Social Security numbers and other personal information on Americans in an attempt to build an increasingly complete picture about huge swathes of the US population. Whether or not that new "collect it all" approach was directly inspired by the NSA's espousal of the idea is a detail: it was certainly brought to prominence by General Alexander's statements, and is now part of the common currency of surveillance.

It is made possible by lax security, even for huge datasets, as the OPM fiasco shows. That means it is entirely plausible for the Chinese secret services -- and for those of other nations -- to try to collect information about every US or EU citizen, as people's lives move online, and their most personal data is stored in Internet-accessible databases.

Standing in the way of achieving that is the strength of the security protecting that information -- something that governments around the world are now threatening to undermine in the name of their own offensive surveillance capabilities. How many hundreds of millions of personal records must be lost before the authorities wake up to the fact that if they compromise encryption, the only thing they are certain to achieve is to make the task of "collecting it all" easier for China and other nations?

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Posted on Techdirt - 13 July 2015 @ 10:40am

Germany's Leading Digital Rights Blog Netzpolitik.org Accused Of 'Treason' After Leaking Bulk Surveillance Plans

from the still-enough-disk-space dept

Netzpolitik.org is arguably the most influential German blog in the realm of digital rights. It played a key role in marshalling protests against ACTA three years ago. You'd think the German government would be proud of it as an example of local digital innovation, but instead, it seems to regard it as some kind of traitor:

The president of the German domestic secret service has filed criminal charges with the public prosecutor because of two of our articles. The accusation: leaking state secrets.
Those two articles concerned a leak about extending bulk surveillance of online users (original in German), and plans to create a new department of the German secret service to extend its Internet surveillance capabilities (in English.) As Netzpolitik's founder and Editor-in-chief, Markus Beckedahl, explains, he decided to publish this information because it showed that despite Edward Snowden's revelations about NSA surveillance, the German government still thinks the best way of spending taxpayers' money is by spying on them. He adds:
Naturally, we uploaded the original documents relating to our article because there was still enough disk space and because it is part of our philosophy to enable our readers to inform themselves using the original source. Thus, they can scrutinise us and our reporting.

Apparently, this suffices for a twice charge for treason because it seems to be confidential when the Federal Office for the Protection of the Constitution expands the Internet’s surveillance and keeps social networks under surveillance using the dragnet principle. This affects everybody, e.g. we could be under surveillance because we have sign up for the same Facebook event as a potential terrorist. But a public debate thereon is undesired.
This is not the first time that the German government has given Netzpolitik.org a hard time:
Already in the autumn of 2014, the German Federal Chancellery (German: Bundeskanzleramt, translator’s note) has threatened us with a charge which was also announced but later on abandoned.
Like the present case, that seems a clear attempt to intimidate reporting. As Beckedahl points out, even though the new hunt for whistleblowers is not aimed directly at the blog and its journalists, they are likely to be caught up in any investigation, probably just to act as a warning:
It is very rare that the German Federal Public Prosecutor investigates against journalistic sources. We could not find any case since 2005. Now we shall experience the full rigour of the constitutional state. The charge is not directed straight to our reporting but we are nevertheless affected. We are mentioned and have to expect to be under surveillance and possibly to be subject to a house search.
What makes this kind of bullying doubly outrageous is that there is a rather bigger story regarding the press in Germany: the fact that both the NSA and CIA spied on the news magazine Der Spiegel. And yet rather than investigate that fact, or that other newspapers seem to have been victims too, the German government is more concerned about intimidating journalists that dare to report on its own plans to spy on millions of its citizens.

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Posted on Techdirt - 10 July 2015 @ 9:34am

How China Tamed The Country's Top Bloggers, And Took Back The Net

from the Weibo-vs-WeChat dept

Techdirt has been reporting for a while on China's continuing clampdown on the internet, the latest step being the new national security law. You might think these stringent measures, combined with numerous previous moves to strengthen censorship, would be enough. But a fascinating report in The Australian Financial Review reveals that over the last few years the Chinese authorities have also used other techniques in order to ensure that their control of the online world is as complete as possible.

As we reported last year, the number of posts on the Chinese microblog site Weibo plummeted by 70% as a result of new censorship rules that were brought in. The Australian Financial Review feature explains what happened next:

[China's Communist Party], which runs one of the world's slickest propaganda machines, was smart enough not to kill off social media entirely. Instead, it has encouraged the development of a more appropriate platform.

That is WeChat, the four-and-a-half-year-old service that boasts 500 million active users and a parent company with a sharemarket value of $US190 billion ($248 billion), making it the world's eighth-largest technology stock.
Here's the crucial difference between Weibo and WeChat:
Acquiring friends or followers on WeChat is more difficult than Weibo, as you either need to know a user's phone number, be in their vicinity or meet them in person whereby you can scan their QR code. Then they must accept your invitation to become a contact.

There is also no search function to seek out celebrities or opinion leaders and no way to determine how many followers or friends a user has.
That makes WeChat much more intimate -- and much less useful for spreading hot news rapidly or stirring things up.

Not content with replacing the mass-medium Weibo with the smaller-scale WeChat, the Chinese authorities have also ensured that the celebrities of the social media world, who once wielded immense online power, and represented an emerging challenge to the state, have been reined in. Sometimes this was done in the crudest possible manner, as the arrest of a popular political blogger last year shows:

At a nearby police station, in addition to the handcuffs, shackles were placed on his ankles. They would remain in place for 24 hours while he was interrogated.

Blackmail was the blogger's stated crime, although no documents were produced to substantiate these allegations.

"They told me just confess to something and you can go home. If I didn't co-operate, they said, 'you will be in jail for years'."
Remarkably, he didn't, and the situation deteriorated:
In the months after his detention, the man's father has been threatened and the blogger has been beaten up twice by hired thugs, once outside a public building watched over by security guards.
Understandably, in the end he yielded:
After some initial resistance, the blogger who describes himself as a "mild reformist" retreated from the field of battle. He is no longer exposing corruption and hypocrisy within the party.
After a few other high-profile bloggers were arrested and treated harshly, the intimidation could become more subtle:
Last month, at a state-run hotel outside Beijing, a group of China's most influential bloggers assembled. None was there by choice.

They had been summonsed to the Changping district, north-west of the capital, by the State Internet Information Department for a seminar on "Domestic Current Affairs".

It was the modern version of a re-education camp, complete with swimming pool, towelling robes and a buffet breakfast.
Central to that re-education were some helpful hints about what topics they might like to write about in the future:
During the seminar, the authorities even put up a slide, showing what they believed to be a successful re-education of one blogger. The person in question, who had once written about politics and the rule of law, had now turned his keyboard to more appropriate subjects, according to the moderator, such as hotel reviews, fashion and first-world type lifestyle problems.
As the rest of The Australian Financial Review's report makes plain, most of the country's top bloggers have gotten the message. Social media is now a "dreary mix of food reviews and gossip," and China's grip on the online world looks firmer than ever.

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Posted on Techdirt - 10 July 2015 @ 1:05am

New Boycott In Support Of Open Access: Third Time Lucky?

from the idea-whose-time-has-come dept

Over three years ago, we wrote about a fast-growing boycott of the academic publisher Elsevier, organised in protest at that company's high prices, its "bundling" of journals into larger collections, and its support for SOPA. Even though over 15,000 people eventually pledged not to work with Elsevier, the company is still going strong, making huge profits from the work of academics, and putting paywalls between the public and knowledge. Perhaps we should have guessed it would end like that. As we noted then, this was not the first or biggest boycott in the history of open access. In 2000, 34,000 scientists from 180 nations signed up to the following:

we pledge that, beginning in September 2001, we will publish in, edit or review for, and personally subscribe to only those scholarly and scientific journals that have agreed to grant unrestricted free distribution rights to any and all original research reports that they have published, through PubMed Central and similar online public resources, within 6 months of their initial publication date.
The failure by many of them to follow through on that promise did have one positive effect: it led to the creation of what remains perhaps the most influential open access publisher, the Public Library of Science, which is still around today, and flourishing. Both of these unsuccessful attempts to use boycotts to push forward open access are mentioned in a post by Dr Danny Kingsley on the Unlocking Research blog, which reports on yet another attempt to use this approach:
A long running dispute between Dutch universities and Elsevier has taken an interesting turn. Yesterday Koen Becking, chairman of the Executive Board of Tilburg University who has been negotiating with scientific publishers about an open access policy on behalf of Dutch universities with his colleague Gerard Meijer, announced a plan to start boycotting Elsevier.

As a first step in boycotting the publisher, the Association of Universities in the Netherlands (VSNU) has asked all scientists that are editor in chief of a journal published by Elsevier to give up their post. If this way of putting pressure on the publishers does not work, the next step would be to ask reviewers to stop working for Elsevier. After that, scientists could be asked to stop publishing in Elsevier journals.
And here's why Kingsley thinks this time the boycott might work:
Typically negotiations with publishers occur at an institutional level and with representatives from the university libraries. This makes sense as libraries have long standing relationships with publishers and understand the minutiae of the licencing processes . However the Dutch negotiations have been led by the Vice Chancellors of the universities. It is a country-wide negotiation at the highest level. And Vice Chancellors have the ability to request behaviour change of their research communities.
That exposes what went wrong with the previous boycotts: they were carried out by the researchers, who have very little clout individually or even collectively when it comes to putting pressure on huge companies like Elsevier. But the Vice Chancellors have real power, based on the ability to instruct their respective institutions how they should -- or shouldn't -- act, including, presumably, how they spend their money on journal subscriptions.

The Dutch seem to be serious about making open access the norm in their country. A recent amendment to the country's copyright act means that authors are now entitled by law to make the results of their research available under open access licenses. As a short notice on the University of Utrecht site explains:

This means that university staff no longer have to lay down the right to publish open access in agreements with publishers. After the amendment of the law they have and keep this right automatically. With the publisher they only have to reach an agreement on the length of 'a reasonable period of time'.
Even without the boycott, then, Elsevier will be obliged to agree to release research that is completely or partly paid for by the Dutch government as open access after that "reasonable period of time." All-in-all, now might be a good moment for the company to take a more accommodating approach to open access than it has in the past.

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Posted on Techdirt - 9 July 2015 @ 1:08am

The Latest In The 'Collect It All' Collection: An Entire Nation's DNA

from the adding-more-hay dept

"Collect it all": for the NSA, it is communications data; for Kenya, it is information about every Wi-Fi user and device. For Kuwait, as Yahoo News reports, it's everyone's DNA:

Kuwait's parliament, reacting to a suicide bombing last week that killed 26 people, adopted a law Wednesday requiring mandatory DNA testing on all the country's citizens and foreign residents.

The legislation, requested by the government to help security agencies make quicker arrests in criminal cases, calls on the interior ministry to establish a database on all 1.3 million citizens and 2.9 million foreign residents.
Kuwait seems to be pretty serious about implementing this scheme. Refuse to give samples? That will cost you $33,000 and a year in jail. Try to pass off someone else's DNA as your own? Make that seven years in jail. Setting up the DNA database won't be cheap, but an extra $400 million has been allocated by Kuwait's parliament:
"We have approved the DNA testing law and approved the additional funding. We are prepared to approve anything needed to boost security measures in the country," independent MP Jamal al-Omar said.
Following the high death toll in the suicide bombing, there is a natural desire to do something to stop it happening again, and to help catch those behind it. But the move to collect everyone's DNA seems to be born mostly from an opportunistic government desire to exploit tragic events to bring in extreme laws without much resistance.

After all, how exactly will having everyone's DNA in a database prevent future suicide bombings? Yes, it might help with the rapid identification of the bomber(s) and victims. That's useful, but hardly justifies an unprecedented collection of everyone's DNA. And it may help resolve other crimes, particularly rape, which will be welcomed by the victims. But if DNA becomes a standard tool in everyday criminal cases, having everyone's DNA may actually hinder investigations because of false positives. We are all shedding DNA everywhere we go, so the presence of somebody's genetic material at the scene of a crime probably means nothing (and could even be an attempt to frame someone, which becomes much easier.) But it will require the police to eliminate all those genetic bystanders, which is likely to slow down the investigation.

In this respect, it's the classic needle-in-a-haystack data problem, but applied to the world of genomes. Just as adding more hay does not help you find those proverbial needles, so increasing the size of the DNA database to encompass the entire population does not generally make it easier to find the perpetrator of a crime. In fact, smaller, more selective DNA databases are more sensible, just as targeted surveillance is more effective. With luck, Kuwait's future discovery of this fact, and its failure to draw much benefit from this massive intrusion into the most personal sphere of all -- the genome -- will make other governments think twice before following suit.

Well, I can dream, can't I?

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Posted on Techdirt - 8 July 2015 @ 1:25am

Bosses Of Big Pharma Companies Unable To Deny Australia Being Ripped Off On Drug Costs

from the and-that's-even-before-TPP-is-in-place dept

Here on Techdirt, we often write about the bad behavior of Big Pharma, particularly in terms of how it is one of the main driving forces behind far-reaching international agreements like TPP. As a recent leak underlines, drug manufacturers hope to use TPP to extend the monopolies that allow them to charge high prices for their products. Confirmation that drug pricing has little to do with actual costs in at least one part of the world comes from a surprising source -- the heads of Big Pharma companies, as this report in the Canberra Times reveals:

Multinational pharmaceutical companies are unable to assure Australians they are not being "ripped off" on the price of medicines as a result of their complex global supply chains.

The Australian heads of nine of the biggest global drug suppliers were forced into the embarrassing admission on Tuesday after backing themselves into a corner by insisting they have no idea what their own sister companies in other countries pay to import the same medicines.
This interesting confession was made during an Australian Senate inquiry into corporate tax avoidance. Apparently, Pfizer paid just AU$21 million (about US$16 million) in company tax in 2014, even though its Australian sales were AU$1.4 billion (about US$1 billion). The company claimed that was because its "cost of sales" in Australia were more than three-and-a-half times higher than those in the US. However, when pressed on those figures:
Pfizer managing director David Gallagher said he didn't know what any other Pfizer subsidiary paid for drugs manufactured by the company in Ireland and declined repeated requests to explain the "arm's length" process that determined intra-company transactions, known as "transfer pricing".
Understandably surprised by this, the Senate Committee chairman asked the heads of Pfizer, AstraZeneca and GlaxoSmithKline to confirm what they seemed to be saying:
"As the CEOs of three of Australia's biggest pharmaceutical companies, you have no idea what drugs cost in other jurisdictions? You can't tell us whether we're getting ripped off?"
As the Canberra Times reported:
All three agreed they could not.
It seems unlikely that TPP will do much to improve the situation.

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Posted on Techdirt - 7 July 2015 @ 1:11am

Aadhaar: Soon, In India, Everyone Will Be A Number

from the national-identity-card-club dept

National identification numbers are common enough -- many countries issue their citizens with a unique identifier. But in terms of scale, few can match Aadhaar, India's identity number system. As The Times of India explained a few years back, when the scheme was first announced:

Aadhaar is a 12-digit unique number which will be issued by the Unique Identification Authority of India (UIDAI) to all residents of the country. It's a step towards putting India in the club of more than 50 countries around the world that have some form of national identity cards. These include most of continental Europe (not the UK), China, Brazil, Japan, Iran, Israel and Indonesia. The number will be stored in a centralized database and linked to the basic demographics and biometric information photograph, ten fingerprints and iris of each individual. The number will be unique and would be available for online and offline verification and, hence, will rule out the possibility of duplicate and fake identities from government as well as various private databases.
The Aadhaar system is designed to make it easier for people on the sub-continent to prove their identity:
One of the key challenges faced by people in India is difficulty in establishing identity. People have multiple identity documents, each serving a different purpose. The most important characteristic of Aadhaar is its universality and it is assumed that the biometric card with the number will be gradually accepted across the country as the identification number by all service providers and government agencies.
The system is almost in place. According to an article in The Economic Times, as of this month, 870 million Aadhaar numbers have been issued. The hope is to achieve "universal coverage" -- 1.2 billion people -- by December.

Initially, the Indian government insisted that the scheme was voluntary, although even in 2013, there were concerns that it was effectively mandatory because various state benefits required its use. In 2014, India's Supreme Court reiterated that the system should not be compulsory, and also forbade the authorities from sharing biometric data held on the associated database with the police or similar agencies without the permission of the person concerned.

That raises one of the principal concerns with such centralized databases: the fact that, once created, there is a natural tendency to use them for purposes that have nothing to do with the original justification. For example, in 2013, there were suggestions that the Aadhaar card could be linked to driving licenses. In December last year, 100 million bank accounts were already associated with Aadhaar numbers. Last month, it was revealed that the Indian Railways may make the use of the Aadhaar number mandatory for booking online tickets. All of those will make tracking a person's activities much easier.

As the use of the Aadhaar system spreads to more domains, and becomes indispensable for more everyday services, that single number will assume an ever-greater importance in the lives of people in India -- and therefore become increasingly useful for identity fraud. It will doubtless make things much easier for the public there; but it will also provide the authorities with the perfect way of unifying all the information that they hold about citizens. Let's hope that by the time that happens, India has in place suitably robust laws regulating both government surveillance and data protection.

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Posted on Techdirt - 2 July 2015 @ 1:16am

What's Behind The Attack On EU's Outdoor Photography? The Usual Copyright Maximalism And Anti-Americanism

from the civilization-in-peril dept

Last week, Tim Cushing explained that one of the bad outcomes of the recent European Parliament committee vote on Julia Reda's copyright reform report was that it recommended limiting freedom of panorama -- the ability to take pictures and make videos of public objects -- to non-commercial use. As Techdirt readers know, in the digital age, it is very hard to draw a clear distinction between commercial and non-commercial contexts online, which makes any kind of limitation to non-commercial use problematic. The person responsible for introducing the amendment to Reda's report, Jean-Marie Cavada, has written a blog post about the freedom of panorama issue (original in French), and it gives us some interesting insights into his thinking here:

The fight which is being led today by Ms. Reda, in the guise of defending free access to the works that are in the public domain [public objects] on behalf of users, is actually one conducted above all to allow US monopolies such as Facebook, or Wikimedia, to avoid the payment of fees to the creators.
Yes, it's all about those evil American companies again, refusing to pay when somebody dares to post a holiday picture on their Facebook page. Because, as the copyright maximalists keep on reminding us, every single use of every single owned object must be licensed every single time, otherwise civilization -- specifically European civilization -- will come crashing down.

But whatever people might think about Facebook, it's hard to see Wikipedia/Wikimedia as a "US monopoly" avoiding payment, as Cavada calls it. Indeed, Cavada goes on to contradict himself, writing:

this structure is well aware that the use of works on Wikimedia pages is not questioned by the authors, even in countries where there is no [freedom of] panorama exception.
Well, if it's not questioned, why is he using Wikipedia as an example of an evil "US monopoly" that wants to avoid paying licensing fees? Or does he mean that authors don't have a problem with Wikipedia using photos of landscapes with their works visible provided they are paid? Which of course ignores the fact that Wikipedia is not a company, and can't afford to pay licensing fees. Or, there again, is he perhaps advocating that Wikipedia just ignore the law, and use the pictures anyway?

Altogether, this confused post is a perfect demonstration of why people who don't understand a technology should not be allowed to make laws about it.

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Posted on Techdirt - 1 July 2015 @ 1:07am

CETA Isn't Dead, But Its Corporate Sovereignty Chapter Is Still A Huge, Unresolved Problem

from the and-let's-not-mention-TTIP dept

It's been a while since we last wrote about CETA, the trade deal between Canada and the European Union. Back in March, we noted that the French Secretary of State for External Commerce, Matthias Fekl, said that France would not ratify CETA unless the corporate sovereignty, or investor-state dispute settlement (ISDS), provisions were removed or replaced by something completely different. Of course, it's hard not to be sceptical about these statements, since politicians like to grandstand, and are happy to change their positions every few months. But not, it seems, Matthias Fekl. According to a report on the French site Le Devoir (original in French), he's still of the same opinion:

For the Secretary of State for Foreign Trade, Matthias Fekl, who expresses the official position of France, it is not only a question of principle but a fact of life today. If negotiators do not rewrite Article 33 of the [CETA] Treaty which deals with dispute resolution, there will be no ratification.
And it's not just France that has a problem here. According to the article, Fekl said:
Look, this [refusal to accept the corporate sovereignty provisions in CETA] will also be the case in other countries. This isn't meant as a threat. But as far as this chapter is concerned, things must definitely move.
The EU Commissioner for trade, Cecilia Malmström, is well aware of the issues here -- not least because 145,000 people told her in the ISDS consultation last year -- and has presented a concept paper entitled "Investment in TTIP and beyond – the path for reform" (pdf). These are quite similar to proposals made by Fekl for the creation of a new European court to settle trade disputes. But there are two big problems with following that path.

First, the European Commission (and Fekl) have only just begun to sketch out how that reform might look. It is likely to take some time to come up with alternatives like entirely new courts. There is no way that something will be agreed for CETA, which may be ready for ratification quite soon. There's also the problem of TAFTA/TTIP. Given that Malmström has admitted that the current ISDS is unsatisfactory, and that she is trying to come up with something better, it will be hard for her to include it in TAFTA/TTIP in its current form. But the US side has made it clear that it is not happy with dropping corporate sovereignty completely, which leads once more to the problem of time-scales, since a serious replacement for ISDS may not be available even for TTIP. It will be interesting to see how Malmström deals with this key issue for both CETA and TAFTA/TTIP.

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Posted on Techdirt - 29 June 2015 @ 12:41pm

Australia's New Law Would Strip Citizenship For Possessing A 'Thing' Connected With Terrorism, Or Whistleblowing

from the proportionate-response,-what's-that? dept

Things seem to be going from bad to worse in Australia. In April, it brought in mandatory data retention, and last week its own version of SOPA finally became law. Now the Australian government is working on another awful piece of legislation: a bill to revoke the citizenship of those holding dual nationality if they are "involved in terrorism." A column in The Sydney Morning Herald gives a few examples of what that dangerously elastic concept might mean in practice:

Citizenship would automatically be stripped from a person convicted of entering an area declared to be a no-go zone by the Australian government. This would occur even if the person has entered that area for innocent purposes, such as to do business, visit friends or undertake a religious pilgrimage. The same result would follow for a person convicted of damaging Commonwealth property or possessing a 'thing', such as a book or downloaded file from the Internet, that is in some way connected with terrorism.
Yes, download a file that is "in some way connected with terrorism," and your Australian citizenship will be taken away -- automatically. According to the article quoted above, this is because:
[the Australian government] has responded to concerns that its proposal might be struck down by the High Court. Instead of allowing a minister to strip a person of their citizenship, the bill states that this would occur automatically. This is consistent with the current law.
An article in The Guardian points out that the bill covers whistleblowers too:
The proposed law would also capture a range of offences for disclosing matters relating to national security under section 91.1 of the [Australian] Criminal Code.

The section is titled "offence relating to espionage and similar activities", but includes several offences for intentionally disclosing matters pertaining to national security.
The author of the article in The Sydney Morning Herald, George Williams, is a professor of law at the University of South Wales. As he says:
The government has again overplayed its hand. Its proposal goes well beyond a modest, sensible extension to the existing law so as to remove citizenship from a person who has committed a terrorist act or fought for an organisation like IS. Instead, its bill could cause people to be exiled from the Australian community where their connection to terrorism is minor, or even non-existent.
The same disregard for proportionality can be seen in the data retention and copyright laws brought in recently. Sadly, it seems likely that the proposed citizenship-stripping bill will soon join them in Australia's Hall of Legislative Shame.

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Posted on Techdirt - 26 June 2015 @ 6:18pm

Two Overlooked Aspects Of Those Leaks About NSA Spying On French Presidents

from the reasons-to-be-cheerful dept

There's been quite a lot of excitement in the press about the latest leaks that the NSA has been spying on not just one French President, but (at least) three of them. As Mike pointed out, this isn't such a big deal, because it is precisely the kind of thing that you would expect the NSA to do -- as opposed to spying on the entire US public, which isn't. There is, though, an aspect that most people have overlooked: the fact that these NSA leaks don't appear to originate from Snowden's stash.

Of course, Mr Crypto himself, Bruce Schneier, did spot it, and pointed out it could be one of his "other" US intelligence community leakers, listed a couple of months ago, or even a completely new one. As that post shows, there are now a few people around that are leaking secret documents, and that's a pretty significant trend, since you might expect enhanced security measures taken in the wake of Snowden's leaks would have discouraged or caught anyone who attempted to follow suit.

That's not the only thing that's interesting about the French documents. As Fabio Chiusi points out in a blog post (original in Italian), they are the latest in a recent series of very rich leaks that include the Sony archives; the Saudi cables; the TPP transparency chapter; and -- not mentioned by Chiusi -- 17 chapters from TISA.

What all those collections have in common is the fact that they came from WikiLeaks. As Chiusi rightly emphasizes, after a period when WikiLeaks seemed to have lost its ability to release important material -- and thus its relevance -- the organization is beginning to hit its stride again. Coupled with the fact that there are half-a-dozen or so people who are leaking intelligence materials, that development offers hope that things are really beginning to look up on the transparency front.

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Posted on Techdirt - 26 June 2015 @ 1:07am

Apology Legislation In Hong Kong? What Kind Of A Stupid Law Is That?

from the soz dept

Here on Techdirt, we often write about laws, particularly stupid ones. A new law that is being considered in Hong Kong, to encourage people to make apologies, seems to fit the description nicely. Here's the background, as given by the consultation paper seeking input on the idea (pdf):

In 2010, the Working Group on Mediation of the [Hong Kong] Department of Justice recommended, amongst other things, that the question whether there should be apology legislation dealing with the making of apologies for the purpose of enhancing settlement deserves fuller consideration by an appropriate body. In 2012, the Secretary for Justice established the Steering Committee on Mediation (“Steering Committee”) to further promote the development of mediation in Hong Kong. The Regulatory Framework Sub-committee set up under the Steering Committee has been tasked to consider whether there is a need to introduce apology legislation in Hong Kong. After reviewing the report prepared by the Regulatory Framework Sub-committee, the Steering Committee recommended the enactment of apology legislation in Hong Kong.
Here's why it's under consideration:
The main objective of the proposed apology legislation is to promote and encourage the making of apologies in order to facilitate the amicable settlement of disputes by clarifying the legal consequences of making an apology.
Apologizing after some mishap might be taken as a tacit admission of guilt, which could indeed have "legal consequences", since the fear is naturally that doing so will be used against the party making the apology. As a result, people often restrain their natural instinct to say sorry. The consultation documents points out that's likely to exacerbate the situation:
It is unfortunate that this is the perceived legal position as regards apologies, for the heat of the moment so commonly found in a dispute could have been extinguished (or at least reduced) by an apology or an expression of sympathy or regret, thus preventing the escalation of the dispute into legal action or making it more likely for the legal action to be settled.
Ironically, then, fear of the legal consequences of apologizing can mean that disputes are more likely to end up in court than they would had somebody quickly apologized. So apology legislation clarifying the legal effect of saying sorry makes a lot of sense, despite my erroneous initial thoughts. No wonder, then, as I learned from the consultation document, that similar laws are already found quite widely around the world -- in 57 jurisdictions to be precise. Moreover, it seems that the idea was first introduced in the US:
Our research indicates that the first apology legislation was enacted in Massachusetts in 1986. The trend then spread to other states in the United States. At present over 30 states in the United States have apology legislation. Characteristics of the legislation vary. Some deem an apology not to be an admission of liability while others only limit the admissibility of an apology in court for certain purposes. It is noted that most of the apology legislation in the United States covers partial apology (i.e. apology that does not include an admission of fault) only and is targeted at civil actions against the health care profession or involving some other aspects of personal injuries only.
Clearly I owe the lawmakers of Hong Kong an apology for misjudging their eminently sensible legislative project.

Sorry.

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Posted on Techdirt - 24 June 2015 @ 12:54am

Whatever You Call It -- Open Journalism, Social Media Journalism, Open-Source Intelligence -- It's Going Mainstream

from the first-draft-of-first-draft dept

We've written a couple of times about the use of publicly-available information, typically posted on social networks, to verify developing stories where traditional sources are scarce or unreliable. This new field doesn't seem to have a fixed name yet -- open journalism, social media journalism, open-source intelligence are all used -- but whatever it is, it's clearly going mainstream, as this announcement on the YouTube blog of The First Draft Coalition makes clear:

You could say that user-generated news video is today’s "first draft" of capturing an event that took place. But when it comes to incorporating this content into the reporting of a news event, verification is a critical step for any newsroom -- and not every journalist knows where to start. So we're bringing together a group of thought leaders and pioneers in social media journalism to create educational resources on how to verify eyewitness media, and how to consider the ethics of using it in news reporting. This new group, called The First Draft Coalition, will consist of experts from Eyewitness Media Hub, Storyful, Bellingcat, First Look Media's Reported.ly, Meedan, Emergent, SAM Desk, and Verification Junkie. The Coalition will develop and program a new site for verification and ethics training, tools, research, and, most importantly, case studies around the biggest news stories of the moment.
As the post explains, The First Draft Coalition will be launching its own site later this year, but you can get a taste of the kind of thing it will be doing from examples on Medium. There's an article there by Eliot Higgins from Bellingcat, whom we wrote about last year, and who is widely regarded as one of the leading exponents of the art. His post is well-worth reading, since, as he writes:
When working on open source and social media investigation there's occasional images that at first seem as if they would be impossible to verify.
He posts one of those images, found by the Twitter user surpher:

Of course, Higgins then goes on to pinpoint the exact position in Russia of the military convoy shown there, using not just the image's co-ordinates (which anyway need to be verified) but tiny signs in the photo, including road markings, half-visible posts and cracks in the road that most of us would miss completely. It's an amazing performance, and demonstrates well the incredible potential of this field. Whatever it's called.

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Posted on Techdirt - 23 June 2015 @ 1:06am

Will Corporate Sovereignty Disputes Lead To Wars One Day?

from the even-if-they-don't,-they-hardly-promote-peace dept

Last August, we wrote about the most egregious corporate sovereignty award (so far): $50 billion against Russia, under a treaty that it never even ratified, in favor of the major shareholders of the Yukos oil company. Of course, as everyone pointed out, being awarded $50 billion was one thing, collecting it, quite another. Most people probably assumed that it would be practically impossible to squeeze that money out of a recalcitrant Russia, but we now learn that some serious steps towards that goal have recently been taken, as reported by Der Spiegel (original in German). In Belgium, the bank accounts of the Russian embassy were frozen, as were those of Russia's EU and NATO missions, while in France, something similar happened, with Russian accounts blocked at 40 banks.

Understandably, this did not go down well with the Russian government. The country's deputy foreign minister warned, "whoever dares to do that must understand that it will lead to reprisals," something his boss, Sergei Lavrov echoed. Meanwhile, Lavrov's own boss, Vladimir Putin, was also well aware of the situation, and was quoted as saying: "we will defend our interests using legal means."

A story on France 24 reports that Russia has already threatened to retaliate against state-linked foreign firms operating in the country, so that's one way that things could escalate. But more seriously, the relations between Russia and EU nations are extremely strained over the conflict in eastern Ukraine; the last thing the situation needs is additional tension caused by arguments over a massive fine. Even if corporate sovereignty doesn't actually cause a war -- well, let's hope not -- the Yukos award may turn into a hindrance to resolving an existing conflict. That's yet another reason to get rid of the whole deeply-flawed system before it causes more serious damage.

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Posted on Techdirt - 22 June 2015 @ 3:54am

Alleged Dallas Buyers Club Pirates To Be Asked For Employment, Income And Health Details

from the sure-you-don't-want-anything-else? dept

In the previous instalment of the long-running saga involving alleged pirates of the Dallas Buyers Club film in Australia, the court agreed that Australian ISP iiNet should hand over information about its customers. But it added an important proviso: the letter and telephone script to be used to contact and negotiate with them had to be approved by the court first in an effort to prevent "speculative invoicing" of the kind all-too familiar elsewhere.

Last week, more details emerged in another court hearing before the same judge. He was was concerned that the proposed letter from Dallas Buyers Club LLC (DBC) and Voltage Pictures LLC, the film's foreign sales agent -- which DBC is currently suing (pdf), in another twist in the plot -- would not quote a specific figure that those supposedly infringing would be asked to pay, as the Australian Financial Review reported:

Judge Nye Perram said he was concerned DBC was effectively being given a blank cheque, by not stipulating a dollar figure, which could allow the company to ask for a "very high number".

"I need comfort that you aren't going to extort these people," Judge Perram said.
The judge also refused a request by DBC that the draft letter and telephone script should be withheld from the public -- DBC claimed that doing so "could weaken the company's bargaining position and reveal to alleged infringers how they could reduce the penalties sought." As a result, The Sydney Morning Herald obtained copies of both the letter and the script, and published some interesting details. For example, the letter expects parents to shop their own children:
"If the person whom you believe to have engaged in Piracy is under 18 years of age, then please provide us with the full name and address of that person, confirm that that person is under 18 years of age, confirm whether you are the parent or guardian of that person and whether you are authorised to engage with us on behalf of that person," the letter will demand.
The proposed telephone script for people who ring the number given in the initial letter is even more extraordinary:
Callers who admit to the downloads will be asked to provide detailed personal answers including their employment status, whether or not they have a terminal illness, what their annual income is and whether or not they're serving in the military.
It will also ask the callers to incriminate themselves further:
"How many titles do you have available now and in the past on the BitTorrent network?" call centre operators will ask, according to the script.
It's not yet clear whether the judge will allow these incredibly intrusive questions -- he's expected to hand down his ruling next month. But it's an indication of the approach that DBC wants to take, and yet another reason why those receiving these emails should consider seeking legal advice, as The Sydney Morning Herald notes in a useful article on the topic.

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