Lex Ferenda

Macworld reports that the most recent iPhone software update includes code for an Irish network (it is, of course, O2). Does this mean that an announcement is imminent? (Hat tip, Colm, offblog).

Ramble ahead (skip if you’re just here for the happy geeky news): I have an iPod Touch that I got at Christmas (it’s great, I love it, although I don’t use its wifi functionality all that much as the academic network I use most of the time doesn’t - as of yet - support it); I used to have a mobile phone with O2, had once since 2000 when I sold phones (and other things) in an electronics store in Bray, finally gave in last summer and defected to 3, which is working out alright so far. Will O2 win me back with the promise of an iPhone, if I’m living in Ireland when it eventually arrives? Is it right that I’d have to go to a particular network to get the treasured little device at all? Will Damien taunt us for being six months behind the curve? Time - and Steve Jobs - will tell.

Correction: February 19, 2008
An article in some editions on Monday about a New York City Transit employee’s deft use of the semicolon in a public service placard was less deft in its punctuation of the title of a book by Lynne Truss, who called the placard a “lovely example” of proper punctuation. The title of the book is “Eats, Shoots & Leaves” — not “Eats Shoots & Leaves.” (The subtitle of Ms. Truss’s book is “The Zero Tolerance Approach to Punctuation.”)

Link, with thanks to Language Log.

I can’t believe they actually made a mistake like this. I laughed out loud (or LOLed; I don’t think I ROFLed because it’s covered with books). It must have been a very clever joke on the part of a creative sub-editor. Perhaps it was an odd tribute to Louis Menard, who infamously put the boot in in a New Yorker article. The article opened with these classic words:

The first punctuation mistake in “Eats, Shoots & Leaves: The Zero Tolerance Approach to Punctuation”, by Lynne Truss, a British writer, appears in the dedication, where a nonrestrictive clause is not preceded by a comma. It is a wild ride downhill from there.

You can guess where it went from there.

While we’re talking about the New York Times, though, I just have to mention this. As you’ve probably heard or read or seen or divined, the New York Times ran a story about John McCain and a lobbyist and the connection between them. I was much more interested, though, in the response from The New Republic (TNR), which is a detailed slab of meta-media, an analysis of how and why the Times ran the article…published less than 24 hours after the article it is commenting on was uploaded to the Times’ website! Clearly, the magazine (TNR) has been following this for some time - but it’s still an illustration of something, I just haven’t figured out what. For what it’s worth, I found the piece in TNR (or ‘the TNR’ - shades of The The?) more interesting than the Times article itself. The TNR article also has a cameo from Bob Bennett, who has a life-as-a-lawyer book called In The Ring coming out. Must keep an eye out for that.

Many thanks to Laurence Eastham at the Society for Computers and Law (SCL) in the UK for listing Lex Ferenda in his article on blogs (or blawgs) for IT lawyers. He says that if you read this blog, “you won’t be bored”. Not sure how true that is - sometimes I send myself to sleep - but nice to see that it’s appreciated, anyway! He also lists the wonderful blogs of Lilian Edwards and Andres Guadamuz (frequently cited in these pages) and also Laurence Kaye, Naked Law, IMPACT and those dastardly cool kittens at IPKat. A nice mix of practitioner and academic approaches. Go subscribing!

The SCL plays host to Lawrence Lessig this April 30th in London. He’s going to give a talk summarised here on ‘Corruption 2.0: the next problem technology must solve‘. Lessig, as many readers will recall, announced last year that he was shifting his research interests from cyberlaw/copyright/commons to corruption. Another C, though, might be Congress? John Palfrey at Harvard Law School launched a Facebook group (I was the second member of the group after its founder) and an accompanying website, DraftLessig.org. The group now has over 2000 members…

While who runs for Congress in California is in most ways their own business (the possible candidacy relates to a special election to replace the late Tom Lantos, whose name is too similar to Matt Santos for my frazzled brain at times), it’s a very interesting idea and I’m watching it with great interest. Back in July, while at the Berkman Center, I organised a fun discussion (blogged about here) under the title of ‘The Legacy Of Lessig’, and we talked about politics and influence a good deal there - but I don’t recall us predicting this at all. Watch this space.

Wikileaks (that link works) is a website where, as you’d imagine, leaked information is published. Primarily we’re talking about documents from jurisdictions without ’strong’ protection of freedom of expression or freedom of the press.

This week, it seems that the site (or the main version of it) was ’shut down’ by court order. Yes, this does happen - and indeed, sometimes a temporary shutdown is not the worst thing in the world if it allows for a proper hearing and (hopefully) a speedy restoration of the content other than in exceptional cases. An order shutting down a site is in all practical ways similar to a pre-publication ‘prior restraint’ order directed towards a newspaper or broadcaster, and should be used with the greatest of caution.

However, the real fear here, and what troubles me about this situation, is the way that the original judge hearing the application (ex parte, i.e. without the involvement of the defendants at this stage) appears to have used a pretty big hammer for this nail. In this post, I argue that this decision is wrong and that in the Spamhaus case of 2006, an alternative and more appropriate approach was taken by a court faced with a broadly similar request.

The judge in this week’s case ordered that:

Dynadot shall immediately clear and remove all DNS hosting records for the wikileaks.org domain name and prevent the domain name from resolving to the wikileaks.org website or any other website or server other than a blank park page, until further order of this Court

Dynadot is the registrar for the domain name. That means that someone paid Dynadot around ten dollars a year to register wikileaks.org and point it towards a web server somewhere.

Ordering that the DNS records be removed is draconian yet inadequate - not what you’d expect a judge to be doing. It’s draconian in that it is effectively a summary punishment making a site ‘disappear’ as if it never existed, being the equivalent, from the point of view of the average user, of making a street address and telephone number magically disappear. Yet it’s also inadequate in that the underlying content is not affected by the DNS and therefore the IP address should enable the content to be accessed. (Reminder for the less obsessed reader: IP address - series of numbers like 123.123.1.1 that identifies the location of the webpage, domain name - something like lexferenda.com that is ‘converted’ into an IP address).

Thankfully, an amended order was issued that seemed to be more appropriate (although without knowledge of the facts, obviously it’s still possible that the order was inappropriate on factual grounds - but at least, and noting that this is an interim injunction of some description, we’re back in Kansas for the time being).

Court orders to delete DNS entries are dangerously closed to being a semi-legal version of the Internet Death Penalty of techie lore, i.e. blocking all packets from a particular domain as an anti-spam measure. As Dynadot’s action will propagate through the DNS within a day or two, the court is - basically - rolling its sleeves up and pulling the plug in a pretty sneaky fashion (the user won’t know how or why the site has gone - it literally vanishes from public view, assuming that the public in general use domain names and not IP addresses!).

The California First Amendment Coalition attacks the decision as doing the work of oppressive foreign governments. The Guardian has a shot at explaining the story on its technology blog. Jonathan Zittrain writes about the story in a blog post, Wikileaks and Points of Control; the title echoes Zittrain’s influential 2003 article on Internet Points of Control and much of his subsequent work. The Register reminds us that the order also included a block on transfer of the name to another registrar.

Those of you with long memories may remember the Spamhaus case a while back, 2006 to be precise. Basically, as part of a wider case, a proposed order was submitted to a court that would have ordered ICANN (the global organisation that (in some way) administers or supervises the domain name system - I did my LLB thesis on how this happens and other issues, it’s lots of fun) to remove Spamhaus’s registration. ICANN made it very clear at the time that it couldn’t do this if it wanted to. Indeed, the final order in that dispute (PDF) is a good explanation on why the first order in the Wikileaks case is wrong; it explains carefully the two key points, that neither ICANN nor the (Canadian) registrar have any involvement in the matter, and that a court order should be directed towards the offending activities and not the site as a whole. (Don’t forget that the latest in that case is that the injunctions and damages that were awarded have been quashed and sent back for further consideration.

Remember, the domain name system itself works off what I and others have been arguing for some years is a relatively narrow point of control (by necessity), being the root server system, which the US government has self-declared full legal control over, albeit self-restrained in various ways and integrated with a separate industry/techie-driven standards model and the quasi-international organisation that is ICANN. If courts find that they can point their bizarre orders in this direction (i.e. towards the DNS) - perhaps this week’s decision should be a wake-up call in that regard - then we are on new ground. The continuing lack of clarity at an intergovernmental level over ‘what to do’ about ICANN and net governance will come back to bite us, if this example is the first of many. If it’s not, then it’s another false alarm - but how many false alarms do we need before taking the question seriously?

Anyway, follow the story as it develops (and where I spotted it first) at the invaluable Citizen Media Law Center.

And finally, http://88.80.13.160/ http://88.80.13.160/ http://88.80.13.160/ http://88.80.13.160/ http://88.80.13.160/.

Following copyright law leads you to unusual stories. That much is true. The story that broke through into the popular press last week (example: BBC), though, is quite iffy even by those standards. Yes, I’m talking about the (leaked) proposal in the UK to provide that those engaged in illegal filesharing would be ‘banned from the Internet’ (have their Net access contracts terminated); the Open Rights Group (one of the best NGOs on these issues in the world) have been talking about this for some time.

Now, there are certain rhetorical links here within criminal law (noting of course, though the music industry usually forgets this, that the bulk of copyright law is civil not criminal). A sanction for drink-driving can be a driving ban, et cetera. This, though, seems a different kettle of phish. There’s a direct link between the drink-driving (the core activity being driving) and the ban from driving (the core activity still being driving). And of course, the non-driver can take the bus or walk or cycle on the same road. On the other hand, the offence of copyright infringement (core activity being illegal copying or similar) does not have the same relationship to an Internet ban (the core activity being Internet use which includes many things). It’s bizarre, although in the context of banning students from chemistry because it might lead to bombs, I can see where it’s coming from.

The present-day Internet includes communication (email), socialising (IM, social networking etc), media consumption (websites, blog, streaming, etc), media creation (ditto), access to Government services, online commerce, etc. Now imagine that the sanction for a, let’s face it, relatively minor crime (copyright infringement, while economically significant, is hardly manslaughter), includes no use of the postal services, highly limited access to shops, no permission to read a newspaper, reduced ability to use public services or get public information, and more. That’s no minor sanction. Indeed, most prisoners can get things like reading material and send and receive letters! Not to mention that a Net disconnection has an impact on family members and others.

Of course, there are precedents for kicking people ‘off the Internet’ (Kevin Mitnick) and there are even those sane judges that have a sensible idea of online communications, in particular that looking at websites about violent jihad doesn’t make you a terrorist.

The enforcers here are your friendly local ISP (yes, those neutral non-state actors). They’ll be required to follow this system or face their own penalties. Something similar is on the agenda in France. Andres predicts that the ISPs will come out swinging. I hope so.

More fundamentally, this should see a rights-based analysis. For example, the ECJ’s decision in the Promusicae case (discussed here) shows how the rights of copyright holders are not the only things on the cards, and that privacy rights are important. In this situation, rights of expression, communication, participation and so on (all protected in the EU’s charter of fundamental rights and many other documents), are potentially being compromised. Is it proportionate to find that an internet service provider (required to act by statute) can take an action that has such wide-reaching consequences on such a basket of fundamental rights simply to vindicate the rights of the music industry? Is this a fair and proportionate ‘punishment’? I don’t accept that it is, and certainly not in the broad-brush terms that the UK proposal seems to put it.

Anyway, apparently this will be in a paper called The World’s Daftest Laws Creative Hub that’s coming out this week. Watch this space.

Not content with the Dublin Writers Festival (here), we also have the Dublin Book Festival this March. Sponsored by the publishers and supported by various greats and goods, it’s happening in City Hall on Dame St. in Dublin 2; apparently there’s a full programme available by email, I fired off a request but didn’t get anything back, and the website doesn’t seem to have all the details. Still, it’s a while away, and it’s only up the road…

Mark Davys’ unique approach to teaching land law (blogged about as part of the coverage of the UKCLE legal education conference in January) is now set out in full detail (complete with scripts) here

My post previewing the RTÉ Living Music Festival and its programme of works by Arvo Pärt has been getting quite a lot of hits, mainly through Google searches. If you stuck around, this post may interest you.

Indeed, I hope that those of you who passed through here actually managed to get some tickets after all! Every event over the weekend was sold out; Lyric FM’s Bernard Clarke said about Friday night’s concert that it attracted “the most diverse audience you have ever seen at a contemporary music concert”. Due to a combination of other commitments and early sellouts, I attended two concerts, the National Symphony Orchestra/Philharmonic Choir/Joanna McGregor on Friday (Lamentate, Berliner Messe, Credo) and the RTÉ Concert Orchestra on Sunday (Collage uber B-A-C-H, Passacaglia, Tabula Rasa, Wenn Bach Bienen gezuchtet hatte, and Cantus in memoriam Benjamin Britten, and a - fascinating, haunting and intriguing - new commission by David Fennessy, This Is How It Feels (Another Bolero). Both concerts were excellent, and in particular I was impressed at how different the works were (I wasn’t familiar with all of them) and how the concentrated period of listening meant that you could really get a sense of the different parts (no pun intended) of the composer’s career to date. (I also came away with a DVD and CD which I thought was pretty restrained under the circumstances). While I think that works like Spiegel im Spiegel (performed at another concert this weekend) are wonderful and compelling (and I could listen to that piece over and over), it’s reassuring that RTÉ did not rely on this ’style’ alone, but explore everything from the familiar Cantus to the recent works like Lamentate and Passacaglia to the early (and often chaotic) Credo, probably one of the most unusual things that the Philharmonic Choir has done in many years.

I can certainly confirm and endorse the common view that there was really some atmosphere at these concerts - and a lot more discussion/chitchat/explanation about the music between strangers in the audience. Pärt was present and was greeted with the appreciation he deserved (lengthy standing ovations all round); he even was kind enough to sign autographs, including for this shy listener!

More from Karlin Lillington, Sinéad Gleeson, Annette Clancy; Shane Hegarty of the Irish Times was at the separate concerts in Co. Louth last week (and also came away with a signed programme).

Most importantly : RTÉ has been improving its website - and you can now ‘listen again’ to concerts broadcast (live or delayed) on Lyric FM for a week after it is broadcast. So that means that you have until this Friday coming to hear last Friday’s concert. Sunday’s concert was broadcast as part of the regular contemporary music show Nova, and can be heard again here. Both require RealPlayer. While it’s not a high-quality stream, it should be a taster and an encouragement and a way to relive memories!

To add to the existing US site (IP and IT conferences at Madisonian), special thanks must go to Jordan Hatcher for the already-invaluable UK (”and beyond”) IPITevents site. Go, subscribe, and buy a drink for Jordan when you see him.

One thing listed (and passed to me via email, too), looks particularly interesting:

Musicians, fans and online copyright
2pm, 19 March, London School of Economics

Is home downloading killing music? Should Internet Service Providers
monitor customers to try and spot copyright infringement, and
disconnect downloaders? Do musicians need new laws to benefit from
the opportunities of the Internet?

Join us at this FREE event to debate these questions and more with
leading copyright thinkers from the music world, government, consumer
groups and universities. Confirmed speakers include John Kennedy (CEO
of IFPI), Paul Sanders (CEO of PlayLouder), Becky Hogge (Open Rights
Group), Lilian Edwards (Southampton University), Rufus Pollock
(Cambridge University) and Michelle Childs (Knowledge Ecology
International).

Unfortunately I can’t make it over to London (I’m off to Glasgow the following week for BILETA), but if you’re around, you should go. Great group of speakers.

Finally, advance notice (or registration reminder) that the Berkman Center’s 10th anniversary conference is taking place on May 15th-16th in Cambridge, MA (of course). This one, all things going well, I will be at, and registration is open, with a generous discount for students, if you are fortunate (or unfortunate) enough to be one.

Peter Ryan has tagged me with one of these tagging things, and I’m only doing it because he’s from Toronto and I need him to bring me for good coffee and donuts the next time I’m in town.

So, what I have to do is this :

We have been instructed to open the nearest book to page 123, go down to the 5th sentence and type up the 3 following sentences. Or else. The note also demands that we forward this stupidity onto five others.

Following the addition by the good people at Slaw, though, I’ll give two answers - one for a legal book and one for a non-legal book.

First, the law one, then. It’s International Economic Law and the Digital Divide by Rohan Kariyawasam (because I’m trying to get the time to read it - it’s very good but quite detailed - for thesis reasons so it’s still on my desk)

WTO members have held five dedicated discussions on cross-cutting issues relevant to electronic commerce, under the auspices of the General Council. One of the cross-cutting issues of concern is the classification of electronic intangibles. The issue before the WTO is whether the supply of digitised produces which can be delivered either in a physical medium or by way of the internet should be classified under the GATS or GATT, or even the TRIPS. The type of products generally described as electronic intangibles consist of sound recordings, video games, audiovisual works, computer software and literary works, generally any form of content, protected by copyright or other forms of intellectual property rights that can be delivered in a physical form (CDs, CD-ROMs, DVDs, videos, books, newspapers and magazines), or as a form of an electronic transmission over the Internet.

And the non-law one, which is That Neutral Island by Clair Wills (cause I just bought it in paperback this week):

Brennan’s ditty lambasted the Americans for their cavalier attitude to Irish lives, and argued for Ireland’s right to remain neutral. But it also expressed another concern of the Irish government, through one less often acknowledged in the sober language of diplomacy: the belief that if the British were offered the ports, they would never give them back (’For says John, “I find those bases / Are really quite attractive places…”). Where the British were inclined to think of the ports simply as military bases, divorced from the counties and communities in which they stood, Brennan, and behind him the Irish government, focused on the ports as Irish territory - as integral to the country as the Six Counties.

Now, spreading the love, here’s asking for the reading habits of Ruth (because she reads better books than I do), Content and Carrier (because they love their Shakespeare and their law), Nic (to distract him from his thesis, and to bounce the meme to Australia), Tarleton as his fantastic new syllabus must mean he has a desk covered in books, and finally Lilian so that she can use the results in her next presentation on meme culture!