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Posted on Techdirt - 20 January 2017 @ 3:24am

Is A 'Fattened' Version Of A Famous Jorge Luis Borges Story Artistic Re-Creation, Or Copyright Infringement?

from the authorship,-appropriation,-and-interpretation dept

Next month, a rather unusual court case involving copyright will get underway in Argentina:

The novelist and poet Pablo Katchadjian is facing trial for "intellectual property fraud" after publishing a reworking of Borges's 1945 story The Aleph. The Fattened Aleph -- originally published by a small press in 2009 -- extended Borges's work from its original 4,000 words to 9,600.

Most of the alterations consist of the addition of adjectives and descriptive passages and do not change the original plot, which revolves around "a small iridescent sphere" in a Buenos Aires basement, through which a person can see the entirety of creation.
As the Guardian reports, the legal action has been brought by the widow of Borges, María Kodama. Theoretically the case could lead to a six-year jail sentence for Katchadjian, although nobody seriously expects him to end up in prison if he loses. Kodama's lawyer is unimpressed with the argument that "The Fattened Aleph" is just another of Katchadjian's literary experiments. Previously, the author rewrote an epic 19th-century poem about gauchos called "Martín Fierro," by placing the poem's lines in alphabetical order. "Martín Fierro" is also the name of a 1920s Argentinian literary magazine that published work by Borges, amongst others.

But Katchadjian's most interesting connection with Borges is to be found in a short story published by the latter in 1939:

"Pierre Menard, Author of the Quixote" is written in the form of a review or literary critical piece about Pierre Menard, a fictional 20th-century French writer. It begins with a brief introduction and a listing of Menard's work.

Borges' "review" describes Menard's efforts to go beyond a mere "translation" of Don Quixote by immersing himself so thoroughly in the work as to be able to actually "re-create" it, line for line, in the original 17th-century Spanish. Thus, Pierre Menard is often used to raise questions and discussion about the nature of authorship, appropriation, and interpretation.
Rather like "The Fattened Aleph," in other words. It's a pity that Borges' widow doesn't see it that way.

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Posted on Techdirt - 18 January 2017 @ 1:14pm

Chinese Officials With Government Access To Every Kind Of Personal Data Are Selling It Online

from the with-great-power-comes-great-corruption dept

Back in 2015, Techdirt wrote about a government project in China that involves "citizen scores," a rating system that will serve as a measure of a person's political compliance. The authorities aim to do that by drawing on the huge range of personal data that we all generate in our daily use of the Internet. The data would be scooped up from various public and private services and fed into an algorithm to produce an overall citizen score that could be used to reward the obedient and punish the obstreperous. Naively, we might suppose that only authoritarian governments could ever obtain all that highly-revealing information, but an article from reveals that is far from the case. It discusses some great journalism from Guangzhou's Southern Metropolis Daily, whose reporters documented their success in buying every kind of personal data about colleagues from "tracking" services advertised online:

For a modest fee of 700 yuan, or about 100 dollars, the reporters were able to obtain an astonishing array of information based on one colleague's personal ID number, including a full history of hotel rooms checked into, airline flights taken, internet cafes visited, border entries and exits, apartment rentals, real estate holdings -- even deposit records from the country's four major banks.

But that wasn't all. The reporters were also able to purchase live location data on another colleague's mobile phone, pinpointing their position with disturbing accuracy.
The article points out the inevitable conclusion from this journalistic investigation: officials within the government who have ready access to this personal information are happy to sell it to anyone for low prices, no questions asked. It's possible some of the databases have been hacked by outsiders, but it seems unlikely that online break-ins could make enough of them accessible, enough of the time. Corrupt officials with continuous access would be a more reliable source for these tracking services, of which there are hundreds. concludes:
We often imagine China as having the kind of centralized authoritarian system that might be capable of implementing a watertight and monolithic system of digital social controls. And certainly, in the digital age, there is merit in the idea that an expansive hold on big data may possess the key to political power. But as data becomes ever more precious, securing this resource could become virtually impossible -- particularly in a system like China's, which lacks adequate legal and political protections.
That's an important point that's often overlooked. As well as the immense power that mass surveillance confers on the authorities, it also creates a wonderful resource for corrupt officials to access and sell. It would be naive in the extreme to think that this is only a problem for China, and that it won't happen with the ever-widening surveillance systems that Western nations want to set up. It's yet another reason not to build them in the first place.

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Posted on Techdirt - 18 January 2017 @ 3:23am

Despite Trump's Pledge To Kill It, Some Still Hope TPP Will Live Again, As Rival RCEP Stumbles Too

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

As Techdirt wrote last month, there's little prospect of Donald Trump being able to re-negotiate the Trans-Pacific Partnership deal, for reasons to do with the political realities in other countries. That hasn't stopped the true believers from continuing to clutch at straws in the hope that TPP might somehow come back from the dead. For example, here's the view from New Zealand:

It remains to be seen whether the United States will pull out of the Trans Pacific Partnership (TPP), Prime Minister Bill English says.
Here's Australia:
Australia has declared the Trans-Pacific Partnership (TPP) not dead ahead of key trade talks with Japanese Prime Minister Shinzo Abe in Sydney on Saturday, despite opposition to the trade pact from U.S. President-elect Donald Trump.
Even in the US, people are still hoping against hope because of things like this:
Donald Trump's choice for secretary of state Rex Tillerson said Wednesday (Jan 11) he is not against the recently negotiated Asia-Pacific free-trade deal, putting him at odds with the president-elect who has vowed to scrap it.
However, it's worth noting that the very next day, a "Trump transition policy adviser" stated categorically:
"TPP is dead. I cannot stress that more strongly," said the adviser, who requested anonymity because he was not authorized to speak publicly for the administration that takes office on Jan. 20.

"TPP, or a multilateral agreement that looks like TPP but is called something else, is emphatically dead."
Supporters of the trade deal are trying to paint that decision as a defeat for the US and an opportunity for China, as the New York Times reports:
walking away from TPP may be seen by future generations as the moment America chose to cede leadership to others in this part of the world and accept a diminished role. Such an outcome would be cause for celebration among those who favor "Asia for the Asians" and state capitalism. It would be disastrous for supporters of inclusive politics, rule of law, and market economics -- and for U.S. national interests.
China is part of a rival to TPP, the Regional Comprehensive Economic Partnership (RCEP), which manages to be even worse than TPP. The assumption has been that RCEP negotiations will grind on until they reach a successful conclusion. But there are some interesting first signs that may not happen, analyzed here on the CNBC site:
the contrasting priorities of the RCEP players are proving to be the biggest obstacle to success. Members are floundering to bring RCEP to conclusion and they have postponed the deadline from Dec. 2016 until the end of 2017, pointed out Meredith Miller, vice president at Albright Stonebridge Group.
One of the most contentious areas regards affordable access to generic drugs:
Japan and South Korea are suggesting IP policies that may increase medical treatment costs and restrict access to affordable generic medicines for people in several countries, prompting vocal backlash from New Delhi ministers as well as international health organizations. India is often dubbed as the 'pharmacy of the developing world' for its massive production of generic medicines that treat communicable and non-communicable diseases.
TPP foundered on the fact that it offered precious few benefits to the general public, and plenty of downsides. It looks like RCEP is hitting the same problems. The "other" Pacific deal's difficulties may be a further sign that the era of massive global trade deals like TPP, TTIP and TISA, all negotiated in secret, and all now in doubt, may finally be over. We can probably expect smaller-scale, bilateral deals to become the norm instead.

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Posted on Techdirt - 17 January 2017 @ 4:59pm

Here Come The AIs To Make Office Workers Superfluous

from the are-you-next? dept

Stories about robots and their impressive capabilities are starting to crop up fairly often these days. It's no secret that they will soon be capable of replacing humans for many manual jobs, as they already do in some manufacturing industries. But so far, artificial intelligence (AI) has been viewed as more of a blue-sky area -- fascinating and exciting, but still the realm of research rather than the real world. Although AI certainly raises important questions for the future, not least philosophical and ethical ones, its impact on job security has not been at the forefront of concerns. But a recent decision by a Japanese insurance company to replace several dozen of its employees with an AI system suggests maybe it should be:

Fukoku Mutual Life Insurance believes [its move] will increase productivity by 30% and see a return on its investment in less than two years. The firm said it would save about 140m yen (£1m) a year after the 200m yen (£1.4m) AI system is installed this month. Maintaining it will cost about 15m yen (£100k) a year.
The Guardian article quoted above gives a few more details:
The system is based on IBM's Watson Explorer, which, according to the tech firm, possesses "cognitive technology that can think like a human”, enabling it to “analyse and interpret all of your data, including unstructured text, images, audio and video".

The technology will be able to read tens of thousands of medical certificates and factor in the length of hospital stays, medical histories and any surgical procedures before calculating payouts
It's noteworthy that IBM's Watson Explorer is being used by the insurance company in this way barely a year after the head of the Watson project stated flatly that his system wouldn't be replacing humans any time soon. That's a reflection of just how fast this sector is moving. Now would be a good time to check whether your job might be next.

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Posted on Techdirt - 12 January 2017 @ 3:23am

Top UK Cop Says Hackers Should Be Punished Not With Prison, But With Jammed WiFi Connections

from the yeah,-that'll-work dept

Here's a story that starts out well. One of the UK's top police officers, Chief Superintendent Gavin Thomas, has said that putting people in prison for offenses like hacking into computers makes no sense. He points out that it costs around $50,000 a year to keep someone in a traditional prison, and that education programs are likely to be a far more cost-effective solution, especially in terms of reducing recidivism. This is absolutely right, and it's great to hear a senior officer admit it. Unfortunately, things go downhill from here. He told the Telegraph:

If you have got a 16-year-old who has hacked into your account and stolen your identity, this is a 21st century crime, so we ought to have a 21st century methodology to address it.
His solution is as follows:
He said convicted criminals could be fitted with electronic jammers around their wrists or ankles which blocked wifi signals and prevented them from going online.
Leaving aside the human rights implications, which to his credit Thomas acknowledges, there is another big problem with the proposal, as Techdirt readers have doubtless already spotted. The people wearing these WiFi jammers would be those who have been found guilty of some computer-related crime. By definition, then, they are likely to be tech-savvy. So they probably have other computers that can use Ethernet connections to access the Internet. In addition, they are unlikely to have any problems using Bluetooth or a USB cable to reverse-tether their mobiles to a system with wired access. The more adventurous might even try to rig up some kind of Faraday shielding to jam the jammer. In other words, this isn't going to work, but would probably cause havoc with everyone else's WiFi connections.

Back in 2015, Thomas was quoted by Computer Business Review on the topic of encryption, and the problems it posed for the police, when he said:

It is utterly essential for detectives and criminal investigators to use data held on smartphones and other devices when they are investigating serious crimes.
Given his belief that jamming bracelets would stop convicted computer criminals from using the Internet, the worry has to be that he shares the mistaken view that tech companies can create a safe system of crypto backdoors or "golden keys" that only the authorities can use. Let's hope he takes some expert advice before offering an opinion on that one.

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Posted on Techdirt - 10 January 2017 @ 3:23am

Turkey Is Building Domestic Replacements For Gmail and Google

from the national-culture-and-values dept

Turkey has a long history of blocking Internet services. It's become such a thing, there's even a site called TurkeyBlocks that is exclusively about this phenomenon. A couple of recent stories on the site suggest the Turkish government is aiming to tighten its local control over the online world even more. First, in order to prevent people circumventing social media shutdowns, the Turkish authorities are going after Tor:

The Turkey Blocks internet censorship watchdog has identified and verified that restrictions on the Tor anonymity network and Tor Browser are now in effect throughout Turkey. Our study indicates that service providers have successfully complied with a government order to ban VPN services.
But even that is not enough it seems. Here's the latest plan:
Turkey is building a domestic search engine and email service compatible with national culture and values, according to statements made by Ahmet Arslan, Minister of Communication, in a television interview on Friday.

Minister Arslan explained the urgency of the plans in the live show on NTV, citing the need to store user data within the country and ensure that communications can be analysed domestically. Details such as the service's name, logo and organisation structure have yet to be announced.
It's interesting to see data localization being invoked here, just as it was in Russia. Fear of surveillance by the US seems to be one reason for the move, but the second part about allowing communications to be "analysed domestically" is also noteworthy. It could be a reflection of the fact that Gmail uses encrypted connections that prevent the Turkish authorities from monitoring who is saying what. One obvious step would be to ban Gmail and Google completely in Turkey in order to force people there to use the new domestic offerings. That would allow the government to monitor its citizens more closely, and to control the flow of online data more strictly.

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Posted on Techdirt - 9 January 2017 @ 5:06pm

Tanzanian Farmers Face 12 Years In Prison For Selling Seeds As They've Done For Generations

from the why-not-adopt-big-ag's-patented-approach-instead? dept

Seeds might not seem to have much to do with digital technology, but the DNA that lies at their heart is in fact digital information, and thus many of the issues that concern Techdirt also apply here. One of the key battlegrounds for seeds and their ownership is Africa, as we discussed back in 2013. The Belgian site Mondiaal Nieuws has an update on what's happening in one of the poorest African countries, Tanzania. Things aren't looking good there following a change in the relevant law:

"If you buy seeds from Syngenta or Monsanto under the new legislation, they will retain the intellectual property rights. If you save seeds from your first harvest, you can use them only on your own piece of land for non-commercial purposes. You're not allowed to share them with your neighbors or with your sister-in-law in a different village, and you cannot sell them for sure. But that's the entire foundation of the seed system in Africa", says Michael Farrelly [from an organic farming movement in Tanzania].

Under the new law, Tanzanian farmers risk a prison sentence of at least 12 years or a fine of over €205,300 [about $213,000], or both, if they sell seeds that are not certified.

"That's an amount that a Tanzanian farmer cannot even start to imagine. The average wage is still less than 2 US dollars a day", says Janet Maro, head of Sustainable Agriculture Tanzania (SAT).
The article indicates that "certified" in this context means patented. That's obviously a problem for small-scale farmers, since they would be unable to afford to go through the patenting process, even if that were even a realistic option. For multinationals like Syngenta or Monsanto, by contrast, patenting is as natural as breathing, and so the new system will strengthen their hand considerably.
"As a result, the farmers' seed system will collapse, because they can't sell their own seeds", according to Janet Maro. "Multinationals will provide our country with seeds and all the farmers will have to buy them from them. That means that we will lose biodiversity, because it is impossible for them to investigate and patent all the seeds we need. We're going to end up with fewer types of seeds."
Here's why this is all happening:
Tanzania applied the legislation concerning intellectual property rights on seeds as a condition for receiving development assistance through the New Alliance for Food Security and Nutrition (NAFSN). The NAFSN was launched in 2012 by the G8 with the goal to help 50 million people out of poverty and hunger in the ten African partner countries through a public-private partnership. The initiative receives the support of the EU, the US, the UK, the World Bank and the Bill & Melinda Gates Foundation.
What's particularly regrettable here is not just the loss of biodiversity, and the fact that African farmers will be beholden to Western corporations, but that the NAFSN program will achieve the opposite of its stated aims, and end up taking away what little independence Tanzanian farmers enjoyed under the traditional seed system. No wonder, then, that last year Members of the European Parliament called for the NAFSN to "radically alter its mission". Judging by what's happening in Tanzania, there's no sign of that happening.

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Posted on Techdirt - 9 January 2017 @ 11:59am

Bulgarian Public Radio Forbidden To Play 14 Million Pieces Of Music By Copyright Collection Society

from the let-them-listen-to-folk-music dept

As stories from the UK, Kenya, Peru, Slovakia, Canada, Germany, Taiwan, and the US demonstrate, there's really something rather special about copyright collection societies. Back in 2012, Mike discussed a paper on the subject that listed over 90 examples of actions taken by collection societies around the world that have been bad either for artists or for users. Looks like we can add Bulgaria to the list:

The Bulgarian National Radio [BNR] and copyright organization Musicautor remain at loggerheads over music fees, with officials being cautious in their reaction.

Since January 01, the public radio is barred from playing more than 14 000 000 musical pieces from around the world and plays mostly classical music, jazz and folklore music.
As the report on the site from Bulgaria's capital Sofia explains, that's because Musicautor is demanding that the present music licensing fee of 1% of BNR's state subsidy should increase to 3%. It tries to justify that massive rise by pointing out that other countries around Europe pay a similarly elevated fee. But as the head of Bulgaria's radio explains:
the demand from Musicautor is a burden on [BNR's] budget and "does not rest on economic realities". He accuses the organization of abusing its monopoly over copyright and warns if the radio were to agree, it would have to take one of its regional programs off air, infringing on the public interest.
Just because copyright collection societies have succeeded in squeezing fat licensing fees out of public broadcasters in other countries doesn't mean that this is some inalienable right everywhere. Rather, it reflects the power -- the monopoly power, in fact -- of a collection society to threaten to stop people listening to millions of the most popular tracks on their national radio stations, however unreasonably, simply because it can.

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Posted on Techdirt - 6 January 2017 @ 7:39pm

Finland Will Give 2000 Unemployed People $590 Every Month, No Strings Attached, Even After They Get A Job

from the money-for-nothing dept

Back in 2015, a Techdirt Podcast explored the fascinating idea of a universal basic income guarantee, something that the Swiss considered, but ultimately rejected in a referendum. The idea of giving money to everyone, regardless of what they do, or how much they earn, is intriguing and attractive for many. But what effect would it have on how people live and work? That's what Finland hopes to find out from an experiment it is conducting in this field, as a story in the Guardian reports:

Finland has become the first country in Europe to pay its unemployed citizens an unconditional monthly sum, in a social experiment that will be watched around the world amid gathering interest in the idea of a universal basic income.

Under the two-year, nationwide pilot scheme, which began on 1 January, 2,000 unemployed Finns aged 25 to 58 will receive a guaranteed sum of €560 (£475).
As that indicates, this isn't a universal basic wage, since it's aimed at just a few of those receiving unemployment benefit, and the money will replace existing financial support. On the other hand, it isn't just some kind of creative accounting, because they will continue to receive the monthly sum even if they find work. There are already plans to roll it out more widely.

As the Guardian notes, other parts of the world, including Canada, Italy, the Netherlands and Scotland, are also looking to try out the idea. At a time when there are fears that automation may well reduce the total number of workers needed in industry, it's great to see these experiments exploring an approach that could help to alleviate social problems arising from this shift.

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Posted on Techdirt - 6 January 2017 @ 3:33am

Belgium Wants EU Nations To Collect And Store Personal Data Of Train, Bus And Boat Passengers

from the what-next?-bicycles? dept

It's become pretty common for the authorities to collect personal information about passengers from airlines, supposedly to ensure security. It's a sensitive area, though, as shown by the many years of fraught US-EU negotiations that were required in order to come up with a legal framework for transferring this data to the US when EU citizens were involved. However, not all EU countries are so concerned about that privacy thing. Belgium, for example, thinks that the current approach doesn't go far enough, and that it should be extended to include all forms of mass transport. As this EurActiv article notes, the Belgian parliament has already voted to bring in a national system for trains, buses and boats by May 2018, and the country is calling for the rest of the EU to follow suit:

In response to a number of terror attacks, Belgium wants greater control over who travels on its trains, buses and boats and will present its plans at the next meeting of EU interior ministers at the end of January.
However, there's a problem. Last year, the EU finally passed the EU Passenger Name Record (EUPNR) directive:
The EU PNR directive will oblige airlines to hand EU countries their passengers' data in order to help the authorities to fight terrorism and serious crime. It would require more systematic collection, use and retention of PNR data on air passengers, and would therefore have an impact on the rights to privacy and data protection.
Despite data protection safeguards that were included, resistance to bringing in this directive was fierce from many quarters. EurActiv says:
According to EU diplomats, the decision on air traffic passenger data was already a "big step" and that measure only applies to travellers going to or from third party destinations.
Against that background, asking the EU to extend the PNR scheme to include trains, buses and boats may be going too far, so to speak. Nonetheless, it's a bad idea that's now out there, and all-too likely to spread.

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Posted on Techdirt - 5 January 2017 @ 1:04pm

Ex-MI6 Boss: When It Comes To Voting, Pencil And Paper Are 'Much More Secure' Than Electronic Systems

from the and-he-should-know dept

Techdirt has been worried by problems of e-voting systems for a long time now. Before, that was just one of our quaint interests, but over the last few months, the issue of e-voting, and how secure it is from hacking, specifically hacking by foreign powers, has become a rather hot topic. It's great that the world has finally caught up with Techdirt, and realized that e-voting is not just some neat technology, and now sees that democracy itself is at play. The downside is that because the stakes are so high, the level of noise is too, and it's really hard to work out how worried we should be about recent allegations, and what's the best thing to do on the e-voting front.

What we really need is someone distant from the current US debate, and yet with a great deal of knowledge of how foreign intelligence services hack into computer systems. Maybe someone like Sir John Sawers, former head of MI6, the UK's CIA. Here's what he said recently to the BBC on the subject of e-voting:

"Bizarrely the stubby pencil and piece of paper that you put your cross on in the ballot box is actually much more secure than anything which is electronic."
And added:
"The more things that go online, the more susceptible you are to cyber attacks."
Since MI6 has probably been involved in quite a few of those attacks, Sir John speaks with a certain authority. He also has a good analysis of why there is this constant push for e-voting, even though security experts are pretty unanimous in their warnings of the dangers:
"The only trouble is, the younger generation of people expect to be able to do things remotely and through electronic devices."
That also goes some way to explaining the naivety of most people when it comes to the Internet of Things. Many people just "expect" everything to be digital and online and linked to its own app, even when it's just a hair brush.

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Posted on Techdirt - 5 January 2017 @ 3:33am

Putin's Adviser Says Russia Must Be Ready To Disconnect Itself From The Global Internet

from the death-of-"death-of-geography" dept

Back in November, we wrote about Russia's surprising move to enforce an older data localization law that requires all Internet companies to store the personal data of Russian citizens on Russian soil. At the time, that seemed to be just another example of Vladimir Putin's desire to keep a close eye on everything that was happening in Russia. But a comment from his Internet adviser, German Klimenko, hints that there could be another motive: to make it easier for Russia to cut itself off from the global Internet during a crisis, as The Washington Post reports:

Klimenko pointed out that Western powers had cut Crimea off from Google and Microsoft services after the peninsula was annexed from Ukraine by Russia (the companies were complying with U.S. sanctions on Crimea imposed after Russia's takeover). He suggested that showed why it was necessary for the Russian Internet to work on its own.

"There is a high probability of 'tectonic shifts' in our relations with the West," said Klimenko. "Therefore, our task is to adjust the Russian segment of the Internet to protect themselves from such scenarios." He added that "critical infrastructure" should be on Russian territory, "so no one could turn it off."
Klimenko's comments were made before the US announced its response to claims of Russian interference in the presidential election process. His analysis of "tectonic shifts" in US-Russia relations now looks rather prescient, although US threats to hack back made it a relatively easy prediction. And even though his call for Russia to ensure its critical infrastructure cannot be "turned off" by anyone -- in particular by the US -- may be grandstanding to a certain extent, it is not infeasible.

The Chinese have consciously made their own segment of the Internet quite independent, with strict controls on how data enters or leaves the country. Techdirt reported earlier that Russia was increasingly looking to China for both inspiration and technological assistance; maybe Klimenko's comments are another sign of an alignment between the two countries in the digital realm.

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Posted on Techdirt - 4 January 2017 @ 11:02pm

Great: Now Wall Street Is Funding Speculative Corporate Sovereignty Claims For A Share Of The Spoils

from the this-is-fine dept

Techdirt first wrote about corporate sovereignty four years ago -- although we only came up with that name about a year later. Since then, a hitherto obscure aspect of trade deals has become one of the most contentious issues in international relations. Indeed, the investor-state dispute settlement (ISDS) measures in both TPP and TTIP played an important part in galvanizing resistance to these so-called "trade" deals, and thus in their defeat, at least for the moment (never say "never".)

Corporate sovereignty may be a tough sell in new trade deals, but it is still lurking in plenty of existing agreements. For example, a post on the Sierra Club blog points out that two countries, Colombia and Romania, are being sued using ISDS clauses because of their refusal to issue mining permits:

Both mines would require huge quantities of cyanide and threaten watersheds used by millions of people for drinking water. One would damage a unique, legally protected ecosystem and the other would destroy an ancient, UNESCO-nominated settlement. Both have been opposed by scientific bodies, protested by tens of thousands of people, and restricted by domestic courts.
The use of corporate sovereignty to trump health and environmental concerns is nothing new. What is noteworthy here is the following:
Both ISDS claims are being funded by the same Wall Street hedge fund -- Tenor Capital Management. Tenor helps cover the companies' legal costs in exchange for a cut of any award. These speculative ISDS bets have already paid off for Tenor. The hedge fund won big in April 2016 when it secured 35 percent of a $1.4 billion ISDS ruling against Venezuela, a return of over 1,000 percent on the $36 million that Tenor had provided for the legal costs of the company that brought the case.
That is, the rewards of winning a corporate sovereignty case are so great that hedge funds are starting to fund them speculatively with no direct connection to the ISDS dispute other than providing money to initiate and pursue the claim. As the Sierra Club points out:
The risks of such arrangements, known as "third-party funding," are clear: When Wall Street speculates on the outcome of ISDS cases, it inflates the number of corporate suits against governments, leading to higher costs for taxpayers and higher risks for policymakers that challenge harmful investments.
Doubtless, defenders of the corporate sovereignty system will claim that the hedge fund's willingness to invest money is actually a good thing, since it means that even impecunious companies can enjoy their "right" to sue a government. But the new interest of Wall Street in ISDS underlines the unfair asymmetry of the system:
Because only corporations, not governments, can launch ISDS cases, governments have no equivalent funding sources, as they have no potential winnings to leverage. In Costa Rica -- which is also on the receiving end of a third-party-funded ISDS case relating to an environmentally destructive gold mine -- the Attorney General's office has an annual budget of only $17 million. In Bolivia -- one of the poorest countries in the Western Hemisphere, which faces a third-party-funded ISDS case relating to a silver mine -- the Attorney General's office has a budget of $12 million.
This is a crucially-important point about corporate sovereignty: governments never win ISDS cases; at best, they just don't lose them. All the upside is with the corporates that bring the claim, and all the downside with nations that are defending their actions and regulations. The new wave of third-party funding will accentuate that skewed nature, and make corporate sovereignty even more of a scourge than it is today, regardless of whether it is ever included again in any new deal.

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Posted on Techdirt - 20 December 2016 @ 3:35am

Seeking Open Access Deal, 60 German Academic Institutions Ditch All Subscriptions With Elsevier

from the united-we-stand dept

In the struggle to provide open access to academic research, one company name keeps cropping up as a problem: Elsevier. Techdirt has written numerous stories about efforts to rein in the considerable -- and vastly profitable -- power that Elsevier wields in the world of academic publishing. These include boycotts of various kinds, mass resignations of journal editors, as well as access to millions of publicly-funded papers in ways that bypass Elsevier altogether.

Alongside these grassroots actions, some universities and research institutes have tried taking a different approach. They are making common cause by banding together in order to strengthen their negotiating hand with the global publishing giant. The aim is to get a better deal from Elsevier, particularly in terms of providing open access to papers. Last year, a group of universities in the Netherlands used this strategy with some success, as Science reports:

A standoff between Dutch universities and publishing giant Elsevier is finally over. After more than a year of negotiations -- and a threat to boycott Elsevier's 2500 journals -- a deal has been struck: For no additional charge beyond subscription fees, 30% of research published by Dutch researchers in Elsevier journals will be open access by 2018.
The Science article points out that this win had limited impact, because only about 2% of all academic papers are produced by Dutch authors. That makes the following move by the much larger German academic community of considerable importance:
The DEAL project, headed by HRK (German Rectors' Conference) President Prof Hippler, is negotiating a nationwide license agreement for the entire electronic Elsevier journal portfolio with Elsevier. Its objective is to significantly improve the status quo regarding the provision of and access to content (Open Access) as well as pricing. It aims at relieving the institutions' acquisition budgets and at improving access to scientific literature in a broad and sustainable way.

In order to improve their negotiating power, about 60 major German research institutions including Göttingen University cancelled their contracts with Elsevier as early as October 2016. Others have announced to follow this example.
According to the post, Elsevier made its first offer to the group, but it was considered inadequate, and so the German institutions have ditched all their subscriptions with the publisher. As they say:
All participants in this process are aware of the imminent effects this has on research and teaching. However, they share the firm conviction that, for the present, the pressure built up by the joint action of many research institutions is the only way to to reach an outcome advantageous for the German scientific community.
Let's hope they are able to preserve their united front in order to win open access to the articles their researchers publish. After all, a win for the DEAL project is also a win for the rest of us.

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Posted on Techdirt - 15 December 2016 @ 3:23am

Photographers And Filmmakers Call For Encryption To Be Built Into Cameras As Standard

from the a-picture-is-worth-a-thousand-passwords dept

Encryption has become one of the key issues in the digital world today, as the many posts here on Techdirt attest. And not just in the tech world, but far beyond, too, as governments grapple with the spread of devices and information that cannot easily be accessed just because they demand it. Techdirt readers probably take crypto for granted, as an increasing proportion of Web connections use HTTPS, mobile phones generally offer encryption options, and hugely-popular mainstream programs like WhatsApp deploy end-to-end encryption. But a recently-published open letter points out that there is one domain where this kind of protectively-scrambled data is almost unknown: photography. The letter, signed by over 150 filmmakers and photojournalists, calls on the camera manufacturers Canon, Fuji, Nikon, Olympus and Sony to build encryption features into their still photo and video camera products as a matter of course. Here's why the signatories feel it's necessary:

Without encryption capabilities, photographs and footage that we take can be examined and searched by the police, military, and border agents in countries where we operate and travel, and the consequences can be dire.

We work in some of the most dangerous parts of the world, often attempting to uncover wrongdoing in the interests of justice. On countless occasions, filmmakers and photojournalists have seen their footage seized by authoritarian governments or criminals all over the world. Because the contents of their cameras are not and cannot be encrypted, there is no way to protect any of the footage once it has been taken. This puts ourselves, our sources, and our work at risk.
That's certainly true, and encryption would place an important obstacle in the way of the authorities seizing cameras and accessing the material they hold. However, it is only an obstacle, not real protection. Assuming encryption is widely implemented in cameras, repressive governments will have a number of options open to them for dealing with it.

They might simply pass laws that forbid the use of cameras that encrypt images. By declaring them illegal, governments could seize them at the border or whenever they are found. However, that's a fairly mild response. If the material on a camera seized by the authorities turns out to be encrypted, many would demand the password. If the photographer is lucky, a refusal might mean being thrown out of the country, probably without the camera. In the worst case, government thugs and criminals may try to obtain the necessary passwords the old-fashioned way -- by beating it out of the phtographer.

What is needed is an approach that avoids those risks. Maybe it would be possible to create hidden partitions on the camera's storage so that sensitive images could be stored there, while giving the authorities access to other less controversial shots. That still runs the risk of the camera being impounded and/or destroyed. Other options might be to transfer the sensitive stuff to tiny wifi-enabled SD cards that are hidden in specially-designed objects -- wristwatches, wallets, pens, buttons, etc. -- or to the cloud, if Net connectivity were available.

Encrypting cameras is certainly a great idea, not least because it helps to make crypto even more mainstream than it already is, and encourages people to expect it everywhere (although Nikon for one doesn't seem too enthusiastic about the proposal). But it's just a first step to address the serious threats faced by photographers in many parts of the world, something that would doubtless benefit from additional kinds of technical ingenuity.

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Posted on Techdirt - 14 December 2016 @ 3:23am

A Nasty New Twist In Ransomware: To Decrypt Your Files Without Paying, Spread The Infection To Others

from the putting-the-mal-in-malware dept

Techdirt first wrote about ransomware back in 2010. Even then, we noted it was nothing new, but that a further twist on the idea had appeared. Well, here we are, nearly in 2017, and ransomware is still with us -- so much for tech progress -- and new twists are still appearing, as the Guardian reported recently:

Any user who finds themselves infected with the Popcorn Time malware (named after, but unrelated to, the bittorrent client) is offered the ability to unlock their files for a cash payment, usually one bitcoin ($772.67/£613.20).

But they also have a second option, described by the developers as "the nasty way": passing on a link to the malware. "If two or more people install this file and pay, we will decrypt your files for free".
This really puts the "mal" in "malware," since it makes a naked appeal to a victim's worst nature. A post on the site offers more details of what seems to be a "work" in progress, including a screenshot of the ransom note, which contains the following information about those who claim to be behind this:
We are a group of computer science students from Syria, as you probably know Syria is having bad time for the last 5 years. Since 2011 we have more than half million people died and over 5 million refugees. Each part of our team has lost a dear member from his family. I personally have lost both my parents and my little sister in 2015. The sad part of this war is that all the parts keep fighting but eventually we the poor and simple people suffer and watching our family and friends die each day. The world remained silent and no one helping us so we decided to take an action.

Be perfectly sure that all the money that we get goes to food, medicine, shelter to our people. We are extremely sorry that we are forcing you to pay but that's the only way that we can keep living.
Well, maybe. But given the ruthlessness of the coders in offering a "nasty way" out of their threats, perhaps this is just another shrewd attempt to manipulate the ransomware victims -- one that is cynically exploiting the very real Syrian tragedy that is unfolding before our eyes.

Until now, malware has been a simple arms race between the authors of harmful code, and the companies making anti-virus products that try to spot the code before it can infect a user's system. The new Popcorn Time ransomware adds a new dimension, and seeks to make the victim an active and complicit vector of infection.

This opens up all kinds of possibilities. For example, we might see ransomware that starts to offer bonuses according to the number of people you infect. You can always claim it was the malware, not you, that sent the program, and nobody will know about your Bitcoin payments. Maybe inventive Techdirt readers can come up with a few more "nasty" ideas that build on this latest twist in ransomware coding.

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Posted on Techdirt - 12 December 2016 @ 5:17pm

Study Shows Risks Of Including Corporate Sovereignty In The 'Other' Huge Asian Trade Deal, RCEP

from the watch-out-US dept

As we've noted, TPP is unlikely to come back from the dead, despite what some seem to think or hope. For example, the Japanese government has decided to go ahead and ratify TPP anyway. That seems foolish, since it has just thrown away most of its bargaining counters for other trade negotiations, in what amounts to an act of political seppuku. As Sean Flynn points out, Japan has form here, since it also ratified the infamous Anti-Counterfeiting Trade Agreement (ACTA), just as pointlessly.

One of the most important trade deals still under active discussion is the Regional Comprehensive Economic Partnership (RCEP). Techdirt first wrote about this 18 months ago, while recently we noted that many of its provisions are even worse than those in TPP. One aspect of RCEP that has received little attention so far is the corporate sovereignty chapter. The Transnational Institute (TNI) has put together a useful document looking at what it calls the "hidden costs" of including investor-state dispute settlement (ISDS) in RCEP. It provides an excellent summary of corporate sovereignty activity in Asia that complements a 2014 study from Friends of the Earth Europe, which looked at the same "hidden costs" of ISDS in Europe. Here are a few of the main findings for RCEP nations (pdf):

50 investment arbitration cases already filed against 11 RCEP (Regional Comprehensive Economic Partnership) countries since 1994, over 50% of which have been filed after 2010.

India alone has been the target of 40% of the cases filed against RCEP countries.

Foreign investors have claimed at least 31 billion USD from RCEP countries. Given the secrecy surrounding investor-state dispute settlement (ISDS) proceedings, this could be much more. This amount is 7 billion USD less than India's entire health budget for 2015.

Of the 31 billion USD claimed by investors, 81% has been claimed from just four countries, India, South Korea, Australia and Vietnam.

The largest known amount paid to a foreign Investor by an RCEP country is 337 million USD as part of the settlement in the Cemex versus Indonesia case.

36% of cases against RCEP countries concern environmentally relevant sectors.

RCEP countries have been sued for measures taken to protect public health, adjust corporate taxes, promote industrialisation, and review contracts acquired through allegations of corruption, among others.
The study brings together much-needed data on corporate sovereignty cases in Asia. It also points outs why RCEP countries would be very unwise to sign up to an ISDS chapter in the deal:
Including the harmful ISDS clause in the RCEP trade agreement under negotiation contributes to cementing investors' rights and expanding the scope of private arbitrators' power. RCEP will lock in place this system of privatised justice. Governments will find it much more difficult to withdraw their commitments to the rights accorded to foreign investors in RCEP than in Bilateral Investment Treaties, because they would need to put an end to the whole agreement and not just the sections on investors' rights.
It's a general problem with ISDS provisions in trade deals: they are almost impossible to cancel, however much harm they end up causing. The bigger the deal, the greater the lock-in. This aspect underlines once more how corporate sovereignty comes at the expense of national sovereignty.

Finally, there's one other interesting nugget that Techdirt readers may find of note. According to the RCEP report, over two-thirds of all ISDS cases against RCEP nations have come from Europe. At the moment, there are only a few minor trade deals that allow European companies to sue the US in ISDS tribunals, in theory at least. But if some kind of post-Trump TTIP 2.0 were agreed -- always a possibility despite the anti-trade deal rhetoric -- and it included a corporate sovereignty chapter, the US might find itself on the receiving end of a similar barrage of costly lawsuits that will reduce its sovereignty at both a national and local level.

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Posted on Techdirt - 9 December 2016 @ 9:39am

Why It's Pointless For Trump To Renegotiate TPP, Even If He Wanted To, And Even If He Could

from the those-that-live-by-the-tweet,-die-by-the-tweet dept

Last month, we pointed out that that pretty much everyone agrees that TPP is dead... except that some still cling to the hope that Trump might be persuaded to carry out another swift U-turn and revivify the zombie deal. As Mike noted, Trump doesn't seem to be against these kinds of mega-trade deals in principle, it's just that he says the US generally concedes too much in them. That means he'd need some kind of high-profile win to make TPP 2.0 compatible with his earlier condemnation of TPP 1.0's terms.

The hope amongst true TPP believers seems to be that Trump could reopen the negotiations, talk tough, and strike a deal that is far more favorable to the US, which he could then ratify, holding it up as another Trump triumph. But in an article on the Cobram Courier site, the Australian ambassador to the US, Joe Hockey, says it would be "fanciful" to think the other TPP nations would happily reopen negotiations so that Trump could rewrite it in his favor. Leaving aside the fact that as one of Australia's top diplomats, Hockey doubtless knows exactly what his government's views are on this and thus speaks with authority, his logic is simple and pretty inarguable:

If the US gets a better deal out of the TPP then the other 11 countries have to make sacrifices and those other countries are going to find it politically impossible to sell it domestically that they are making more sacrifices than President Trump.
Hockey said that governments in the other nations had already come under intense domestic pressure over the current TPP, and the concessions they had needed to make in order to secure a deal. A new agreement would be even worse, because there's an extra factor exacerbating the situation:
Those pressures wouldn't get easier if in a very celebrated way the president of the United States says 'We got a better deal' because that means we got a lesser deal.
Despite the prayers of some die-hard supporters, it seems unlikely that Trump could manage to get the other TPP nations to agree to reopen the deal after eight years of fraught negotiations, and then persuade them to sign up to amendments that gave the US more and the others less. But even if he did, it would take only one triumphant @realDonaldTrump tweet boasting hyperbolically of his success -- naturally RT'd ten thousand times around the world -- for the President to make the new deal irremediably toxic for the other TPP governments, and thus impossible to ratify.

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Posted on Techdirt - 8 December 2016 @ 3:25am

TPP, TTIP And CETA Are Disasters For The Public: Are There Better Ways To Do Trade Deals?

from the Paul-Magnette-says-there-are dept

Techdirt has been covering so-called trade deals like TPP, TTIP, TISA and CETA for many years, and we've reported on the deep problems that people have discerned in their proposals. A legitimate criticism might be that pointing out difficulties is all very well, but what are the alternatives? One was offered back in 2013, from something called the Alternative Trade Mandate Alliance:

an alliance of development and farmers' groups, Fair Trade activists, trade unionists, migrant workers, environmentalists, women's, human rights, faith and consumer groups from all over Europe, developing an alternative vision of European trade policy that puts people and planet before big business.
That sank without trace, and things have been pretty quiet since then on the alternative trade deals front. But now we have the grandly-named Namur Declaration. The name is significant: it's the capital of the Belgian region of Wallonia that came close to derailing the EU-Canada trade deal (and may still do so). The 29 signatories (pdf) are all European academics, and they include the well-known economist Thomas Piketty, and a former political science professor at the Université Libre de Bruxelles, called Paul Magnette. He's better known as the Minister-President of Wallonia, and the person who led the resistance to CETA, which adds an extra piquancy to the Declaration. Here's the basic intent:
The propositions in this Declaration aim to meet the legitimate concerns of a growing number of European citizens. Inspired by the values of solidarity, democracy and progress that constitute the European Union, these propositions must, according to the signatories, become the standard in every negotiation of trade and economic treaties in which the EU and its Member States are stakeholders.
It then goes on to make the interesting comment:
This means that the EU is not in a position today to negotiate a balanced agreement with the United States, given the asymmetry between the partners, especially in terms of the degree of completion of their respective domestic markets and the unresolved extraterritorial issues of US law.
The main Declaration consists of three sections. The first, "Respect for democratic procedures," calls for a bunch of sensible things. For example, it says:
Public analyses and contestation of the potential effects of a new economic and commercial treaty should take place before establishing a negotiating mandate.
The interim results of the negotiations should be made public and accessible in due course, so that civil society is ensured full knowledge and a parliamentary debate can take place before closing the negotiations
The second section calls for "Compliance with socio-economic, sanitary and environmental legislation," and includes the following novel idea:
Standstill clauses should be included to prevent the Parties from lowering their social, sanitary and environmental norms to promote exports and attract investment. These clauses shall be matched with sanction mechanisms, and Parties' compliance with their obligations may in no case substantiate a claim for compensation by investors or other private economic operators
That's a neat subversion of the traditional standstill clause -- for example in TISA -- which is designed to ensure that parties cannot ever reduce their concessions to business, and must always move in the direction of increasing liberalization and deregulation. In the last section, the Namur Declaration addresses the thorny issue of corporate sovereignty:
The recourse to national and European competent courts should be favoured. International dispute settlement mechanisms should be established only insofar as they have certain advantages (in terms of the uniform application of treaties, speed and qualification of judges), include transparency guarantees and an appeal mechanism ensuring the consistency of decisions
As well as calling for truly independent and impartial judges, the Declaration also wants any dispute resolution mechanism to be available to small companies and even members of the public.

The Namur Declaration is mostly of interest because it grew out of Magnette's personal experience with CETA (article in French). The fact that a few dozen leading academics have lent their names to it adds weight, but is unlikely to bring about major changes to the way that trade negotiations are conducted. However, seismic political developments on both sides of the Atlantic are already doing that; let's hope these provide an opportunity to debate and maybe even adopt some of the Declaration's bold ideas.

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Posted on Techdirt - 2 December 2016 @ 1:11pm

Antigua Says It Will Certainly, Absolutely, Definitely Use WTO Permission To Ignore US Copyright And Set Up A Pirate Site, Maybe

from the don't-make-us-do-this dept

One of the longest-running, and most extraordinary, sagas on Techdirt concerns the island of Antigua. Over 13 years ago, the country filed a complaint at the World Trade Organization (WTO) over the US ban on online gambling, which Antigua said violated a trade agreement between the two countries. Long story short, the WTO not only agreed, but said that the Caribbean country could ignore US copyrights, and set up a WTO-authorized pirate site to obtain the $21 million in WTO sanctions that the US was refusing to pay as compensation for blocking Antigua's online gambling sites. In 2013, Antigua was still saying it was definitely going to do this if it couldn't come to some agreement with the US on the matter, and the US was still refusing to settle.

Three years later, Antigua -- officially known as Antigua and Barbuda -- has just told a meeting of the WTO's Dispute Settlement Body (DSB) the following:

Antigua and Barbuda now informs the DSB that, if an appropriate and beneficial settlement is not reached with the US by year-end, the government will be compelled to take action to enforce the suspension of copyright on the sale of US intellectual property, consistent with the award of the DSB.
That's from a copy of Antigua's statement (pdf), obtained by IP Watch. The spokesperson claims the country has suffered serious losses as a result of the US gambling ban:
Over that entire 12-year period, my small country with a Gross Domestic Product of just $1 billion has been deprived of trade revenues which now exceed $250 million.
The statement points out that for the US, $250 million represents just 0.0003% of its annual GDP, and that over the last 12 years, the US has enjoyed a trade surplus of $1 billion with Antigua. Moreover:
While the US continues to act in contradiction of the rulings and recommendations stipulated by DSB concerning my country, it remains the most active user of the institution's Dispute Settlement System.
As a result of the continuing US intransigence, Antigua feels it has no choice but to take the momentous step of absolutely definitely setting up that WTO-authorized piracy site -- just like the last time it said that.

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