DMCA abuse extends to Twitter posts

Well, well. Looks as though nothing is beyond the reach of the DMCA.

Twitter can be a decent communications medium for some things, but let’s face it: there’s only so much one can say in 140 characters. It’s hard to believe that a user could infringe on someone’s copyright within such tight constraints, but someone apparently thinks it can. Twitter has removed an update posted by the music writer who runs JP’s blog, citing a DMCA takedown request from an unnamed sender. The situation once again highlights the potential for abuse through the DMCA’s takedown system, and raises questions about how much service providers should push back against abuses.

US government finally admits most piracy estimates are bogus

Well, well. Sanity begins to dawn. This from ArsTechnica.

We’ve all seen the studies trumpeting massive losses to the US economy from piracy. One famous figure, used literally for decades by rightsholders and the government, said that 750,000 jobs and up to $250 billion a year could be lost in the US economy thanks to IP infringement. A couple years ago, we thoroughly debunked that figure. For years, Business Software Alliance reports on software piracy assumed that each illicit copy was a lost sale. And the MPAA’s own commissioned study on movie piracy turned out to overstate collegiate downloading by a factor of three.

Can we trust any of these claims about piracy?

The US doesn’t think so. In a new report out yesterday, the government’s own internal watchdog took a close look at “efforts to quantify the economic effects of counterfeit and pirated goods.” After examining all the data and consulting with numerous experts inside and outside of government, the Government Accountability Office concluded that it is “difficult, if not impossible, to quantify the economy-wide impacts.”

Yep. That doesn’t mean that there aren’t losses due to piracy, just that the numbers produced by industry lobbyists to scare legislators on both sides of the Atlantic are, well, mostly hogwash. If we had had evidence-based policymaking in relation to the Digital Economy Bill, then Parliament would have commissioned the same kind of critical report as the one produced by the US GAO. Instead, MPs were moved by the bleatings of Cliff Richard & Co.

GAO Report (pdf) can be downloaded from here. It makes for interesting reading.

Gene ‘patents’ — a glimmer of light?

Early days, but still encouraging.

A Utah biotech outfit called Myriad Genetics has a test that can tell women if they carry mutations of two genes linked to a predisposition to breast and ovarian cancer. But if a woman wants that test, she can get it only from Myriad, at a cost of more than $3,000. No other company or lab is allowed to provide the test because Myriad holds patents on the very genes themselves, under an exclusive license from the University of Utah Research Foundation. Or it did until Monday.

In deciding a lawsuit led by the ACLU and the Public Patent Foundation at the Benjamin N. Cardozo School of Law in New York, U.S. District Court Judge Robert W. Sweet shot down seven of Myriad’s patents, ruling that as a product of nature, DNA could not be patented. And in concluding that the essence of DNA is not in the chemicals but in the information encoded therein, he rejected Myriad’s contention that DNA became patentable once it is isolated outside the body. As ACLU staff lawyer Chris Hansen said, “The human genome, like the structure of blood, air or water, was discovered, not created. There is an endless amount of information on genes that begs for further discovery, and gene patents put up unacceptable barriers to the free exchange of ideas.”

For people who object to the commercialization of any private data, gene patents are the ultimate intrusion. Having an assortment of companies own the legal rights to 20 percent of your unique self, as they do now, just feels creepy and wrong. And it’s all the more stinging to know that in Canada, where Myriad’s patents are not recognized, women worried about a family history of cancer can have a lab do that test for under $1,000. “The idea that our ability to look at [genes], to analyze them, to utilize them would be constrained by the issue of a patent strikes many people viscerally,” said James Evans, chairman of a federal task force on the effect of gene patents on diagnostics and patient care. “Genes represent something we see as quite fundamental to who we are. … If this decision is upheld, it in the end is a win for patients and providers.”

Is the DMCA a scam? Or how to censor the web

You think the DMCA is just about anti-circumvention? Think again. This comes from Aaron Swartz’s blog.

I received my first DMCA takedown notice today. I published publicly-available IRS information about the nonprofit Kwaze-Kwasa [USA] Inc. Kwaze-Kwasa sent a letter to my ISP asking that it be taken down. I do not know why they want to keep this public information off the Internet, but I do know that the law lets them.

For those who aren’t familiar, the Digital Millennium Copyright Act contained a section known as OCILLA (distinct from its also-famous anticircumvention provisions) that regulates publishing copyrighted material online.

There are three big parties with interests in this subject: copyright holders, who want strong tools to keep copyrighted material offline; ISPs, who don’t want copyright law to apply to them’ and Internet users, who want to be able to publish and read interesting content. OCILLA was largely written by ISPs and pretty much maximizes their interests at the expense of copyright holders and users.

I’m very glad that copyright holders get the short end of the stick — they want to modify the law to make sites like YouTube illegal, just because some people upload copyrighted material to it. If they had their way, websites based around user-generated content would pretty much be impossible.

But I am frustrated the law doesn’t do enough for users. The takedown notice I was sent was obviously bogus — it didn’t even allege a copyright violation, since the information I published wasn’t even copyrightable (it was all basic facts and statistics published by the US government). Yet my ISP informed me that if I didn’t take the page down, they’d take my entire website offline. And they have to do that because if they don’t, they can be sued under the copyright law and could face very heavy penalties.

Maybe he should change his ISP. Cory Doctorow can advise.

P4P: rethinking file sharing

The thorniest problem in making decisions about internet policy is how to balance the public interest against the vested interests of companies and other incumbents of the status quo. The task is made more difficult by the fact that often there is nobody to speak for the public interest, whereas vested interested are organised, vocal and very rich. The result is usually evidence-free policymaking in which legislators give to vested interests everything they ask for, and then some.

The copyright wars provide a case-study in this skewed universe. When P2P file-sharing appeared, the record and movie industries campaigned to have the entire technology banned. (Larry Lessig used to tell a wonderful story about how he arrived at his office in Stanford Law one day and found two of the university’s network police there. They were going to disconnect him from the network because he had P2P software running on his machine. The fact that Larry used P2P as a way of distributing his own written works had apparently never occurred to them. And Stanford is a pretty smart place.)

So the idea that P2P technology might have licit as well as illicit uses was ignored by nearly everyone. And yet P2P was — and remains — a really important strategic technology, for all kinds of reasons (see, for example, Clay Shirk’s great essay about PCs being the ‘dark matter’ of the Internet). In fact, one could argue — and I have — that it’s such an important strategic technology that the narrow business interests of the content industries ought never to be allowed to stifle it. Evidence-based policy-making would therefore attempt to strike a balance between the social benefits of P2P on the one hand, and those aspects of it that happen to be inconvenient (or profit-threatening) for a particular set of industries at a particular time in history.

All of which makes this report in Technology Review particularly interesting.

‘Peer-to-peer’ (P2P) is synonymous with piracy and bandwidth hogging on the Internet. But now, Internet service providers and content companies are taking advantage of technology designed to speed the delivery of content through P2P networks. Meanwhile, standards bodies are working to codify the technology into the Internet’s basic protocols.

Rather than sending files to users from a central server, P2P file-sharing networks distribute pieces of a file among thousands of computers and help users find and download this data directly from one another. This is a highly efficient way to distribute data, resistant to the bottlenecks that can plague centralized distribution systems, but it uses large amounts of bandwidth. Even as P2P traffic slowly declines as a percentage of overall Internet traffic, it is still growing in volume. In June, Cisco estimated that P2P file-sharing networks transferred 3.3 exabytes (or 3.3 billion trillion bytes) of data per month.

While a PhD student at Yale University in 2006, Haiyong Xie came up with the idea of ‘provider portal for peer-to-peer’ or P4P, as a way to ease the strain placed on networking companies by P2P. This system reduces file-trading traffic by having ISPs share specially encoded information about their networks with peer-to-peer ‘trackers’–servers that are used to locate files for downloading. Trackers can then make file sharing more efficient by preferentially connecting computers that are closer and reducing the amount of data shared between different ISPs.

During its meetings last week in Japan, the Internet Engineering Task Force, which develops Internet standards, continued work on building P4P into standard Internet protocols…


Ofcom knocks back BBC DRM plans

Tentative sign that sanity might prevail?

BBC plans to copy protect Freeview high definition (HD) data have been dealt a blow by regulator Ofcom. It has written to the BBC asking for more information about what the benefits would be for consumers.

Initially it looked as if Ofcom would approve the plans but, during its two week consultation, it has received many responses opposing the plan.

Critics say a Digital Rights Management (DRM) system for Freeview HD would effectively lock down free BBC content.

In its submission to Ofcom, the Open Rights Group argued that such a system was DRM by the “backdoor” and that it would prevent things such as recording HD content for personal use.

“Ofcom received a large number of responses to this consultation, in particular from consumers and consumer groups, who raised a number of potentially significant consumer ‘fair use’ and competition issues that were not addressed in our original consultation,” the letter from Ofcom to the BBC read.

It asked the BBC to clarify the benefit to citizens, as well as outline how it proposes to address the “potential disadvantages” and offer alternative approaches to the issue.

Two cheers, then. But the forces of darkness aren’t routed yet.

Consumer ‘rights’ in a digital world

This morning’s Observer column.

You go to Waterstone’s, buy a copy of Orwell’s 1984 and take it home. Two days later you get up and find that agents of Waterstone's have entered the house during the night and removed the offending volume. They’ve left a terse note explaining what they’ve done and enclosing a credit note for the cost of the book. Enraged, you phone the manager of Waterstone's, who explains that everything is in accordance with the service agreement you accepted when you bought the book.

You don’t have to be a lawyer to know that this would not be tolerated in the real world of physical objects.Yet it's commonplace – indeed universal – in the world of information goods. And what makes it possible is the ‘End User Licence Agreement’ (EULA) that most of us click to accept when we first use hardware, software or online services.

The Kindle EULA is a good example…

How to grill a minister

Tom Watson, the former Cabinet Office minister and the only guy in the government who really understood the networked world, gave Ben Bradshaw an exemplary grilling in Committee Lord Mandelson’s Dangerous Downloaders Act. Here’s an excerpt from the transcript on Tom’s blog:

Q25 Mr Watson: Perhaps we can explore what a tier one tribunal is later on. I want to test you a little more on this. Have you estimated the cost of implementing the system to suspend file sharers for industry? If so, can you say what that is?

Mr Bradshaw: I would imagine we would do so in the regulatory impact assessment that we will be publishing alongside the bill. I know you have a strong record of speaking out on one side of this argument – this is not meant pejoratively – but there are very strong arguments on the other side, the cost of doing nothing to the music industry alone in this country is estimated at about £200 million.

Q26 Mr Watson: Whose estimate is that?

Mr Bradshaw: That is the industry’s estimate. It is an estimate that I have not seen challenged by anyone in any serious way. You will be aware that it is not just the film industry that is concerned about illegal file sharing, it is the music industry, it is all of our creative sectors. This is a problem which governments all over the world are grappling with. I welcome having a serious debate about how we ensure that people who create things can make value out of it. What I do not accept is the argument that there should be anarchy on the internet and that anyone should just be allowed to access what they like free of charge. The bottom line is, this is theft and I think we have to be clear about that. Yes, there need to be market solutions and there are some very imaginative and innovative market solutions that are being developed all the time, but if you are suggesting that we do not need to take action to curb this problem I think the impact on that on our creative sector – which is massively important to our economy and which has outgrown our economic growth in general and will provide a lot of the well-paid jobs in the future – will be devastating. I think we do need to get the law right and I hope that you will help us do that if you have the chance to serve on the committee.

Q27 Mr Watson: I will try to do that in any way I can. So the only estimate we have got to the cost to industry is £200 million and that is an industry statistic.

Mr Bradshaw: That is just for the music industry.

Q28 Mr Watson: Has the music industry estimated how much it will cost industry to police the system with the suspension system?

Mr Bradshaw: They may well have done.

Mr Stephens: I am afraid I do not know either but, as the Secretary of State said, that is one of the issues that will be covered in a regulatory impact assessment.

Q29 Mr Watson: Has the Department estimated what the increased income to industry will be as a result of implementing this new regulatory burden?

Mr Bradshaw: The aim is to significantly reduce – I think we give a figure – by 70%. If we do not manage to reduce by 70% the level of illegal file sharing then we would move to the next stage in terms of considering technical measures. One would have to take the estimate of what is currently being lost to our creative industries and cut 70% off that to arrive at the figure you have just described.

Q30 Mr Watson: Would it be possible to give us in writing the estimates that helped you to form the decision to implement this new system?

Mr Bradshaw: Absolutely, I would be delighted to do that. I am not sure whether or not it is something we should do in advance of publishing the regulatory impact assessment or whether it would be best to wait and put it all in there in a comprehensive way or to do both at the same time.

What’s clear from the session is that the government has made no estimates of the cost to the network industry of implementing this daft statute. The madness continues.

Lord Mandelson’s Dangerous Downloaders Act — update


UK ISP TalkTalk has staged a wireless stunt, aimed at illustrating why it thinks Lord Mandelson’s plans to disconnect filesharers is “naive”.

TalkTalk has long been an outspoken critic of government plans to cut off persistent file-sharers.

The hack demonstrates how innocent people could be disconnected from the network if the plans become law.

Good stuff. Time to change my ISP, maybe.