Lex Ferenda

The decision in Euro-Excellence v Kraft has just been released; it’s a dispute over copyright in logos as a method of restraining unauthorised distribution of chocolate bars (Toblerones) in Canada. An apparent fallout over distribution led to a position where EE didn’t have a deal, Kraft issued a copyright licence to someone else for the logo, EE continued to import/sell the product, and Kraft hit the courts.

The result was that there was no violation - for (not particularly interesting) licence-related reasons. That was a 7-2 finding.

But we have a split court here - one of the most interesting elements is the question of whether it should be possible to make a copyright claim for trade law reasons! This bit is fun. Bastarache, LeBel and Charron (who were in the seven) wrote separately (via Bastarache) and critically, arguing that through a purposive interpretation of the Copyright Act, the technical breach was just that, and thus there is no infrigement for the purpose of the Act. It builds on things like the SOCAN finding re: caching (para 81) and the general comments in CCH, but is still quite an argument.

Fish added (paras 55-6, citations omitted):

I think it worth noting that the trial judge, in upholding Kraft’s claim, proceeded on the assumption that “the sole purpose of [Kraft Belgium and Kraft Schweiz] registering copyright in Canada and then assigning rights to Kraft Canada Inc. was to mount the very attack upon [Euro‑Excellence] which is currently before this Court” . For the true purpose of the Copyright Act, see Robertson v. Thomson Corp, para. 69.

Without so deciding, I express grave doubt whether the law governing the protection of intellectual property rights in Canada can be transformed in this way into an instrument of trade control not contemplated by the Copyright Act.

That makes four. However, the other five (the two dissenters, plus three from the original majority) offer no concession to the Purposive Three Plus Fish. So they would have found in favour of Kraft, were it not for the licence issues. And that is, at least in policy terms, quite scary, and it will be interesting to see how this decision and SOCAN/CCH interact. Michael Geist is wondering about the same thing. And more: from William Patry and Howard Knopf!

We had a fun little session on research tools this morning. I spoke about Yep, a PDF management app for the Mac. I’ve been playing with it for a while, and I can recommend it, although it lacks a social network interactive folksonomised video web 2.0 interface

Ismael has a list of the tools. I particularly like Dapper.net for graphing/analysing and generally playing with data.

Researcher, photographer and Creative Commoner Rachel Cobcroft spoke about her research this afternoon. Her presentation (enriched by a range of CC-licensed photographs) included general information on Flickr as well as a discussion of her own PhD. There are in fact over 42m images on Flickr that are licensed under some form of Creative Commons license (about 10% of the whole, but note that the ‘default’ is all rights reserved) - BY-NC-SA and BY-NC-ND accounting for over half of the 42m. While Rachel is doing some very interesting things on community, reasons for sharing (the focus of her research, and much of the talk), types of interaction, and so on, she is also well aware of the legal and policy issues surrounding licensing and online photo publication, and discussed Curry v Audax, the Betty Hinton case and the more recent brouhaha over Virgin’s use of Flickr CC images in Australia.

The SDP photo pool is here, by the way!

We have what seems like half of Oxford University’s Oxford Internet Institute over here in Boston (well, the city of Cambridge, which can lead to some confusion), but even through the floods, the other half has successfully pulled off the launch of the latest and greatest findings of the Oxford Internet Survey. There’s a special section of the OII website dedicated to the project (information on the new report is here), and the whole report can be downloaded. So download it.

Ethan Zuckerman of the Berkman Center (and elsewhere) and Mike Best of Georgia Tech joined together for a two-part session on “democracy, reconciliation and technology”, which in fact honed in on questions of wireless technology in Africa (one of our readings from the Washington Post has a good summary). I’ve been reading Zuckerman’s blog for about 18 months, and indeed one of his recent blog posts on Incremental Infrastructure, Or How Mobile Phones Might Wire Africa includes many of the arguments put forward in this morning’s talk!

The idea of ‘regulation’ was a theme of both speakers; Best spoke at length about the development of the Liberian Telecommunications Authority (LTA) (further information) - he and others have been looking at developments in Liberia in a forthcoming paper in Communications of the ACM on “Post-Conflict Communications: The Case of Liberia.” (will link when it’s available). Liberia is indeed an interesting case - there is effectively no fixed-line infrastructure and thus both point-to-point (phone/SMS) and Internet (via wireless ISPs) is through wireless means of some sort. Best argues that if you are to do one thing, you should be looking at getting independent regulation right; the crucial difference, he says, is insulating the regulator from day-to-day political control. Zuckerman spoke about regulation too, with a strong preference for entreprenurial, market-driven solutions (I put up an unconvincing defence of old-European-style public interest regulation and market scepticism; Joris van Hoboken made a more persuasive case for a commons-based approach) while accepting that it is a complex issue. Personally, I’m still unsure. I certainly appreciated the examples presented by both speakers of creative and innovative use of technology (interactive radio with anonymous texts-in, airtime as currency, political ringtones) - but fear that a liberalisation approach may enable the creative (or indeed political) uses of wireless communications to be locked down de facto by certain corporations. We’ll see - I do want Ethan to be right, as he understands much more of this and is infectiously optimistic.

Other topics included discussion of different approaches to Africa, including some gentle criticism of Bono (and others) and some consideration of the ideas of ‘governance first’ and indeed ‘infrastructure first’! Lots of this was on the table at the TED Global conference discussed by Zuckerman, and it was an interesting balance to what we heard and discussed in our visit to One Laptop Per Child last Friday…photo on the right is my own snap of this remarkable machine, which went into production just this week.

Ralph Schroeder of the Oxford Internet Institute is about to publish a book on technological determinism and social shaping, Rethinking Science, Technology, and Social Change. A few of us have been talking with him about the book and how it will be received - something to look forward to, anyway! Out in October.

Yesterday, he gave a talk on a different topic, that of “being there together” and (shared) virtual environments. It was a wide-ranging discussion of computer games, videoconferencing, experimental technologies, and more. Ralph was anxious to point out that both ‘mediated’ and ‘face to face’ environments could provide for ‘being there’; he outlined his work on the connected presence ‘cube’, with axes representing presence, copresence and connected presence. I’ll try to add an image here when I can sort one out, because it’s much easier to explain it that way!

Our questions focused on things like the advantages and disadvantages of different technologies, factors of trust and perception, and questioning the definitions adopted by the speaker! I’d recommend reading his 2006 article (subscription may be required) which was optional for this session, and not directly related to the slides, but I found it very helpful in terms of understanding the macro-issues on virtual environments.

A while ago, I expressed concern at the mention in the Programme for Government of plans to require registration/traceability of all mobile phones in Ireland. Antoin added some information about the former policy of the relevant Department (Communications).

Things have moved on - dangerously. In particular, it is disturbing that this proposal is being dealt with by the Minister for the Drugs Strategy, Pat Carey. In this situation, what the Communications civil servants had to say will hardly be very relevant.

Let’s look at the Irish Times ‘breaking news’ report on an interview given by Carey today.

Pay-as-you-go mobile phones will have to be registered in future under a Government plan to tackle drug dealers and related crime.

Automatic link between drug dealing and pay-as-you-go phones. Still waiting for any evidence of this.

Pay-as-you-go mobile phones can be purchased over the counter with no requirement to register the number with a name or address.

As can the overwhelming majority of consumer products in Ireland.

In an interview published today, Minister of State with responsibility for drugs strategy Pat Carey said he believed a requirement to register such phones would help tackle the “rampant use” of mobile phones in prisons, as well as the small-time drug dealers operating in the “shopping centre car park, the church car park or the local football field”.

As I mentioned, it’s stupid to give the ‘Drugs Minister’ (as the Indo puts it: thanks, Cian) responsibility for an issue that involves civil liberties and communications policies. Furthermore, registration has no consequences for the physical location of use - and would it really be impossible for a drug dealer to find (or steal) a phone, if this even was an issue?

Speaking on RTÉ’s News at One today about the move, he said: “We are anxious to have it introduced as soon as it is technically possible to do so.”

Just because something is technically possible doesn’t mean that it’s right…

Mr Carey said that up to now, policy had been to try to reduce the supply of drugs but that it was clear that policy had to keep pace with modern technology and that it needed to be monitored.

This is not a modern-technology issue and it is nothing to do with supply (perhaps the little-known supply-and-mobile-phones rule of economics?).

“We have seen how valuable the ability to track mobile phone traffic has been in bringing criminals to justice in recent times,” he said.

Cashing in on the O’Reilly trial? Plus, they aren’t criminals until they are convicted, and I don’t believe that registration or non-registration has been a significant factor in these cases (again, Minister, where’s the evidence?)

The Minister accepted there may be civil liberties concerns with such policies but that he believed the fact lives were also at stake would override those.

Ah, the old favourite. If you disagree with the State’s power grab and attempt to further abolish the right to communicate anonymously, you want to kill people. I’m very sorry. I won’t post about it any more. Lives are at stake!

Mr Carey said the measure was included in the Fianna Fáil and Green Party Programme for Government.

Indeed.

Update: More from Fergus and TJ.

Week 2 of the Summer Doctoral Programme (see reports on last week’s sessions) is underway, and we were right at it at 9am with a session hosted by Lewis Hyde, Rob Faris and Wendy Seltzer. The fun title was “Making the Tragedy of the Commons into a Comedy” and the focus was quite theoretical and historical - very useful for putting a few other themes of the week in context. Having looked at extracts from Peter Barnes’ Capitalism 3.0 and Yochai Benkler’s The Wealth of Networks, we discussed Hardin’s classic “Tragedy of the Commons” and the challenges to its vision of the inevitable destruction of the commons.

Helpful clarity was provided by a focus on the ’stinting’ of commons; a related topic was that of the right to ‘tear down encroachments’ (and Wendy Seltzer’s provocative - but correct - parallel with digital rights management, in order to defend “fair breakage”). A familar argument was that of the difference between public domains and commons-based systems (like the GPL) and the necessity for stewardship (whether formal or informal).

The main visual cue was the useful matrix of rivalrous and excludable goods, and an extended discussion of (as one participant put it) how going from “atoms to bits” change these balances.

Further readings were suggested by our presenters: including Hess and Ostrum’s Understanding Knowledge As A Commons (PDF of chapter 1) and Carol Rose’s classic Comedy Of The Commons.

Part 1 of our ‘field trip’ took in the Media Lab at MIT and a walk around the (sprawling, architecturally diverse) campus, which is not that far from Harvard. Talk about a knowledge cluster! Anyway, we were lucky enough to be brought into the Media Lab and to visit individual projects. Given my childish glee at ‘being there’, it was only appropriate that I chose to visit the Lifelong Kindergarden team, based in a true eAladdin’s Cave in the basement of the IM Pei-designed building.

We visited two individual projects. The first was Scratch, an innovative (not to mention fun) programming language / creative tool for use in schools (and elsewhere). I was truly smitted with this tool - you should go and play with it. All works created are uploaded and can be downloaded for immediate, full remix/editing/deconstruction. Please give feedback to the designers and consider recommending it to your nearest school. It’s very straightforward and has fantastic resources for users of all abilities. We even had a useful “exchange of views” on copyright and licensing issues, which was nice. But Scratch is nicer. The same people have been working on Lego projects (they invented/created Lego Mindstorm) and of course the place was surrounded with Lego and so forth. In Jonathan Zittrain’s discussion of generativity, he talks about Lego as a truly generative toy/tool; it wasn’t discussed on our visit, but I can certainly see the manifestation of this attitude in a lot of the work that Lifelong Kindergarden are doing, and Scratch is perfectly collaborative, generative and open. (The second project was What’s Up, some far-reaching ideas here, on combining phone trees, Internet use, community structures etc for poor or deprived neighbourhoods - less ‘flashy’ but with some very useful lessons in terms of technology and development).

 
We also visited Frank Gehry’s Stata Center - an astonishing building, as can be seen from the image on the right (which I took - the camera gods were obviously smiling on me yesterday!). The building, just as dramatic inside as it is outside, even contains an exhibition on the infamous MIT Hacks and is unlike anything I’ve ever seen before. Wow.
 

The last of my MIT things was a visit to the MIT Press bookstore. Cyberlaw and Internet studies researchers will know that the MIT Press is among the most prolific of publishing houses when it comes to our areas - in fact, it’s so much that I can actually recognise the MIT Press page layout, having used so many books in the course of my undergrad courses, my LLB dissertation and my current research! I wasn’t disappointed, and came away with an absolute bargain haul from damaged/delisted books - some of the classics of Internet law (Ludlow’s Crypto Anarchy, Godwin’s Cyber Rights, and more) - being six books for under €20. As some of the titles are out of print and very hard to find, I was very pleased with myself. The bookstore proper was like my personal collection (but expanded), and included non-MIT Press books of interest to the MIT audience (and to me - a lot on science, tech and society, ‘digital histories’, etc).

Friday morning schedule was mixed around a bit, meaning that we had our session with MIT’s Henry Jenkins, a truly world-renowed academic in the media studies field and eagerly awaiting by quite a few participants. The provocative title, “Obama Girl Confronts The Future: New Media Literacies, Civic Engagement, and Participatory Culture”, indicates the focus of the talk. In advance, we read “Photoshop for Democracy”, a chapter from Jenkins’ Convergence Culture: Where Old And New Media Collide; during the lecture we watched videos including Obama Girl v Giuliani Girl and reviewed images/campaigns/works such as Republicans for Voldemort, Votefortheworst.com and V is for Vendetta. We previewed the upcoming CNN debate (where questions are being submitted by YouTube users - on video, of course). Art historian Carrie Lambert-Beattywas a co-presenter and made some really interesting interjections on production and visual culture.

A number of us (myself included) were sceptical about the Obama Girl videos; arguing that it was too apolitical, that it had all the visual and gender cues of straightforward TV satire (that was me), that it portrayed politics as a brawl, that it was politics-as-consumption etc. In response, it was pointed out that whatever about the theoretical objections, the video was eye-catching and a way to get a message across.

Jenkins spoke highly of Stephen Duncombe’s Dream: Re-imagining Progressive Politics in an Age of Fantasy, in the context of a discussion of the disconnection between liberal activists/politicians and political culture. I want to read this. He talked at some length about patterns of adoption - i.e. talk radio being a strong point of the right and comedy news being of the left. And of course, he gave us an overview of the key points in Convergence Culture, including shifts in the notion of consumer, how digital and old media work together, and of course that the ‘convergence’ is more than merely technical, and talked about his other work on fan and participatory culture.

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