Lex Ferenda

Justice Easterbrook, him of the seventh circuit court of appeals in the US (notable for his interest/focus on economics, as well as for the “cyberlaw/law of the horse” argument), wrote a very interesting decision for that court last week. I only had a chance to read it properly (it’s nice and short!) this weekend.

The case was taken by one Daniel Wallace, who argued that the GPL (General Public License) for software, and the actions taken by various companies such as IBM and Red Hat, with the help of the obviously evil Free Software Foundationwere in violation of antitrust law. He lost. Here’s the decision (PDF).

Easterbrook got a little muddled at the start over the ‘free’ issue (to quote the simple explanation of the ‘free’ in free software, it’s “free as in speech, not free as in beer”). But not in too bad a way, and other sections demonstrated some understanding of free software issues. Another (slight) criticism is a little muddling between the GPL and the broader term of ‘open source’ software.

However, his holding was clear; he explained how the ‘market’ for free software (including charging for manuals/support and so on) worked in practice, and dismissed out of hand the idea that software without charge, and in particular the restriction on charging for derivative works, is a conspiracy to rig the market.

Two quotes that struck me as very interesting, and capable of broader application, are as follows:

Copyright and patent laws give authors a right to charge more, so that they can recover their fixed costs (and thus promote innovation), but they do not require authors to charge more.

And in the context of a discussion of open source (and without mentioning it, open access) in general terms:

Likewise there is a flourishing market in legal treatises and other materials, plus reference databases such as LEXIS and Westlaw, even though courts give away their work (this opinion, for example, is not covered by copyright and may be downloaded from the court’s web site and copied without charge)

This is an important decision, and a further piece of evidence that the GPL is properly drafted and capable of enforcement. Especially coming from someone like Easterbrook.

I attended the first meeting of a new group, under the auspices of Specialist Study Group on Media and Communication in Europe is a project that will bring together researchers (PhD and early career) for meetings, seminars etc. I gave a presentation (will upload it, if possible) on the European Media Regulation course/project that I’m involved in. And we heard from (European Commissioner) Danata Hubner, communications studies professor Stephen Coleman, among others. A productive meeting, and well hosted by the Leeds locals.

I’m blogging from the 0600 GNER northbound service from London to Leeds. While those souls up in First Class get it for free, us plebs in Standard have to pay for it. However, it’s really straightforward, and also available in small chunks (the minimum unit is half an hour, which is reasonable for a train journey). It’s a pity that they don’t allow you to buy time and use it over multiple journeys (i.e. 30 mins is 30 consecutive mins from start of use), but unfortunately that’s a pretty common feature within WiFi pricing. That aside, it’s an extremely useful service, and the quality is great.

Anyway, here’s hoping that Iarnród Éireann see fit to add this to some of their services (perhaps the Cork-Dublin Express?) in the near future. Anybody?

Dr. Rachel Craufurd-Smith gave a talk last night at University College London (UCL), as part of its Current Legal Problems series. In the chair was Prof. Francis Jacobs (King’s College London, former advocate general at the ECJ), and in the audience were about 25-30 people, mostly students. I arrived just in time, finding my way to the ‘Laws lecture theatre’ in the appropriately-named Bentham building, after a quick-march walk from Kings Cross Thameslink.

Her chosen title was “Broadcasting and the Internet - Does Europe Need A New Audiovisual Services Directive?”, and it was an interesting presentation of the issues. Although I was familiar with a lot of the problems with the directive, from my own research earlier this year, I’ve tried to summarise the talk for the purposes of this blog entry as if it was relatively new to me! Bits in square brackets are interjections from me, so please don’t blame the good doctor for anything inside those shapes.

She described the proposed Audiovisual Media Services directive, a package of amendments to the existing Television Without Frontiers (TWF) directive (1989, amended in 1997). TWF deals with, naturally enough, ‘television’ in the first instance, but there is a competing regulatory regime for ‘information society services’ under the Electronic Commerce Directive (ECD), which is a much lighter approach than TWF. The rationale for the updating of TWF is the existence and growth of ‘non-linear’ or ‘on-demand’ services, such as video-on-demand. Craufurd-Smith professed herself “bemused” by the linear/non-linear distinction (where linear services, including TV are subject to much stricter regulation than non-linear services, which just have a basic floor of regulatory control), and also wondered aloud whether it opened up further questions on the regulation of press v broadcast, and user-generated content under European law.

Self-regulation is the favoured solution of many, and seems to be in the DNA of the Internet. However, as was argued, there has always been a patchwork of regulation, so the unregulable Internet is quite a myth. [This view has been dealt with in detail in Jack Goldsmith and Tim Wu's 2006 book, Who Controls The Internet?, which has the telling subtitle of "Illusions of a Borderless World"] There is the added complication of the competence of the EU (or the Community) in this area; she reminded us of how TWF was in its day quite controversial, and firmly based on a ’services’ rationale rather than a ‘cultural’ one (where harmonisation continues to be firmly excluded under article 151 of the EC Treaty).

The ‘country of origin’ principle is at the heart of both TWF and ECD. However, the ECD is different in allowing a strong possibility of derogation [although I've yet to see anyone produce compelling evidence on how everyone is derogating in such a horrible way!]. TWF allows regulation at a national level (as long as it complies with TWF standards on areas such as quotas, advertisements, sponsorship, the right of reply etc), but also obliges member states to allow broadcasters regulated in other states unrestricted access within their jurisdiction (as they’ve already been regulated once, under the common framework).

The Commission has been influenced by the Mediakabel case where a near-VOD service was found to be regulable as a broadcast, rather than an information society service. Other motivations include the technological changes that lead to greater Internet use, and indeed the commercialisation of the (originally academic and research-driven) Web. So the regulation for all AV media services will deal with incitement to hatred, identification of the creator, and so on. The ‘degree of user control’ is a major factor in making a service subject to the easier standard for non-linear services - ironic, she suggested, given that some interventions, such as the right of reply, might in fact be easier to implement for on-demand services. In this regard, the fact that the Commission has introduced a separate, non-binding document on the right of reply for all media (including print, non-linear and linear services) is quite intriguing.

The final portion of the speech was an expression of concern about the lack of public awareness of the European debate on the directive. In particular, she mentioned the regulation of hate speech and how the British legislation on incitement to religious hatred was controversial, and indeed scaled back through (in particular) the recommendations of the House of Lords. The role of freedom of expression, Craufurd-Smith suggested, is still an unclear one in EU law.

The question and answer period was brief, and covered that same free speech issue (with the chair suggesting that the European Court of Justice has adopted ‘margin of appreciation’ language more familiar from the European Court of Human Rights), as well as the failings of the existing TWF directive (in that harmonisation had not really happened!). I asked a question about the regulation of online (new media) linear services, and the difficulty of applying a common standard to over-the-air BBC television and unlicensed small-scale (but commercial) Internet video streams, which (if scheduled and uncustomised) would be considered as ‘linear’ services.

The chair made a telling remark about there being more questions posed than answered in the speech. I think that’s true. In particular, Dr. Craufurd-Smith’s discussion of the regulation of user-generated content (YouTube was frequently mentioned, although as YT hosts videos on its own server, sells advertising alongside it, and is located outside the EU, it may not be the best example) raises questions (which couldn’t be and were not dealt with in a speech to a reasonably general audience) on the relationship between ’services’ (subject to easy Treaty regulation) and content. I also still have my concerns about the Commission’s ‘technologically neutral’ approach, because frankly I don’t believe it’s possible for technology to ‘be neutral’ or treated with neutrality, where media law is under discussion. But as was said at the start of the speech, the Parliament and Council are dealing with the Commission’s proposal right now, so perhaps answers may be on the way before long. I wouldn’t hold my breath.

Peter was buried in Athboy, Co. Meath yesterday. He was in his mid-30s and had been ill, coping with cancer.

It did come as a shock to hear the bad news. We had been out of touch for a while, although we met (by chance) during the summer, and arranged to meet at the start of the new term, with a few emails going back and forward since then.

He was a man who was very generous with his time, advice, and support. After studying at Trinity College, he went on to serve as Education Officer (93/94) and then President (94/95) of the Students’ Union. In his later years he was heavily involved in the Labour party, including constituency work in my area of Dublin South East, and indeed sitting on the National Executive Committee for the last three or four years. (Many people in Labour circles will remember his chatty, informal updates on what happened at NEC meetings, sent out diligently since his first meeting).

I spent a nostalgic hour on Tuesday night reading through old emails (I’m a compulsive archiver; some would say hoarder). It was a nice reminder of the Peter I knew; always willing to explain how things ‘really worked’, to encourage you to think about politics in a less superficial fashion, and to get people (especially new volunteers) up and out to do something. I found an exchange of mails that culminated in him successfully persuading an unwilling me (and another friend) to leaflet with him at 7.30am outside Tara St. DART station - days before exams! From memory, I know this wasn’t the only time. He had that way of making the link between talking about policy (Peter was teaching and writing a PhD in political science) and the practical side of the political game. He was also a great emailer, I could see, with an ongoing conversation on Irish politics that stretched across most of my year in Canada. In person, he spent a good deal of time - for no reason other than his genuine belief in Labour ideas - talking me through the most basic to Byzantine of party rules, procedures and personalities, in the year that I chaired the college branch - due, in no small part, to his encouraging me to do the job and that it would be a great eye-opener. He wasn’t wrong.

His Students’ Union days weren’t forgotten. He strongly encouraged me to seek election to the Executive, even coming up with ideas for a speech (that ultimately was never delivered, despite all his help). When I was lucky enough to succeed (later) to the same position of Education Officer 11 years after his term, I found some fascinating files (with a detailed filing structure!) from his time - as well as great press and satirical clippings on his many battles with the begrudgers - right and left. His file on semesterisation and modularisation was of great help when the issue came back on the agenda, proving once again that student politics never changes - just the people. Peter is no longer with us, but the many, many people he influenced, cajoled, convinced, laughed with and supported will not forget him, nor the political and social causes he was passionate about. The election in 2007, not to mention the Labour party in this area and in general, will be different without Peter.

Unfortunately I wasn’t able to catch the Release The Music event organised by the Open Rights Group over in the UK. Pity, as on the strength of the report from Fernando Barrio, it was indeed a useful one, complete with unpopular (and just silly enough to vindicate the ORG position) views from the music industry. The RTM campaign is coming at a crucial time in the UK, and the topic is the threat of a further extension of sound recording copyright terms. Please take a moment to look at the site, and glance at the selection of possible actions on the right sidebar.

(I don’t mean anything rude by imperfect, to me it’s potentially an asset).

Steven Levy (author of ‘Hackers’ and ‘Crypto’, among others) has a new book out, called “The Perfect Thing”. It’s about the iPod and related matters. In an interesting turn, though, the book has a random arrangement of chapters, in honour of the iPod Shuffle’s random selection mode.

Nice.

Here’s a New York Times report previewing the announcement of a joint research initiative between the Mass. Institute of Technology and the University of Southampton. Very little on the Web about it so far - even a simple search for “Web Science Research Initiative” (the proposed title) doesn’t give much help. However, it seems interesting, although unclear on whether this is a ‘discipline’ (as the NYT and others seem to be saying) or an interdisciplinary effort.

From the MIT press release, Tim Berners-Lee says: “The Web Science Research Initiative will allow researchers to take the web seriously as an object of scientific inquiry, with the goal of helping to foster the web’s growth and fulfill its great potential as a powerful tool for humanity.“