Recommended reading, 7-13 February 2013

News, blog posts, etc

European Commission, ‘EU Cybersecurity plan to protect open internet and online freedom and opportunity‘ (press release, 7 February 2013).  Marking the release of a new strategy and proposed Directive (download both of them here) on this topic.  The interesting bit about this is how it’s framed – legally speaking it’s an internal market measure (not crime!); strategically, it follows up on the many comments about ‘trust’ in the Digital Agenda documents of the last couple of years.  While most of the operative provisions of the Directive are about national authorities for infrastructure and cooperation between them, there is an interesting (proposed) obligation for member states to regulate ‘market operators’ in terms of security and also notification of breaches.  (Incidentally, is this category of ‘market operator’ a new one?  It has two sub-categories – information society services ‘which enable the provision of other’ ISSes (examples in an Annex are cloud computing platforms, app stores, search engines, social networks), and operators of certain types of critical infrastructure.  Art 14 doesn’t apply, in essence, to telephone/mobile/broadband providers, because the electronic communications directives already occupy the field.  (It also doesn’t apply to certain players in the much-maligned electronic signatures field – although I read that exclusion as being broader than those entities contemplated in the 1999 Directive).  (The ‘open internet’ etc language of the strategy and press release is slightly overstated, I think).

John Brodkin, ‘Wi-Fi “as free as air”—the totally false story that refuses to die‘ (Ars Technica 8 February 2013). This is most curious. The (interesting and potentially significant) work of the FCC on what to do with UHF ‘white spaces’ – spectrum formerly used or left as a buffer for TV broadcasting but becoming available for other uses – has been of interest in IT law for some years now.  Then seemingly from nowhere, a normal development in the regulatory process became the basis for an article about free wifi.  This is not to say that white spaces and Internet access are unconnected; clearly, it’s one of the reasons that people beyond spectrum gurus talk about it.  (I wrote about it in passing in this 2009 article, in section 5.5).  But the licensing process does not deliver a free service by any means (even if, as is being discussed, the regulatory model would not include a license fee for spectrum use).  Nor has anything particularly interesting happened in recent weeks – as Brodkin’s deconstruction points out, the interesting stuff either happened a few years ago (when the opening up started) or will happen in the future (if new services are launched).

Simon Fodden, ‘Edwin Mellen Press’s Curious Case‘ (Slaw 10 February 2013).  A comment, with plenty of links, on the developing (and worrying) story about the huge defamation claim (the applicant seeks the equivalent of over £2m!) against a librarian (who wrote some quite critical things about a publisher, informed by his knowledge of the field) and his university employer.  I would certainly not have anything to do with this publisher as a result of its actions in this case (whatever about the underlying allegations themselves!).

Alexander Hanff, ‘The murky world of privacy advocacy‘ (10 February 2013). A new blog and a rollicking start, with a detailed analysis of corporate funding for tech-related NGOs. It’s about time. Given the field I’m working in, I’ve seen quite a few of these organisations (and indeed, their close cousins, the consultant reinventing themselves as an NGO/think-tank with no membership, no membership and often nothing to add). I think the post by Hanff demonstrates a very honest attempt to understand the weaknesses of the lobbying system and reminds us all to think about the motives as well as the contents of interventions.

Virtual currency and virtual property revisited‘ (Technollama 11 February 2013). An overview of recent developments on virtual £££ and IP and other things, prompted by a piece in Forbes which mostly about virtual property). See also this nice PBS video on Bitcoin, etc.

Academic articles

Nina Mendelson, ‘Should Mass Comments Count?’ (2012) 2 Michigan Journal of Environmental & Administrative Law 173 (SSRN). This is a response to the author’s earlier work (and a debate about it), but reading the article covers much of what before quite neatly.  The issue is a controversial one – how, when public consultation happens, to deal with different forms of participation (particularly one-click or template methods).

Michael O’Flaherty, ‘Freedom of Expression: Article 19 of the International Covenant on Civil and Political Rights and the Human Rights Committee’s General Comment No 34′ (2012) 12 Human Rights Law Review 627-654 (£, link).  The author of this article was the rapporteur work on this General Comment and discusses the comment as well as some of the cases and stories it relied upon.  Watch out for the interesting discussion of article 19 and emerging technology, too.

E Tarantino, ‘A simple model of vertical search engines foreclosure’ (2013) 37 Telecommunications Policy 1 (£, link).  The new volume of this journal (mix of law, business, economics, etc) starts off with one of the topics of the year, competition law and search engines.

Recommended reading, 24 January – 6 February 2013

Double edition! At the end of January, I was caught up in the excitement of the official launch of CREATe.  I was taking notes on laptop and paper, so more to follow on that soon.

News, blog posts, etc

Eric Goldman, ‘17 USC 512(f) Is Dead–Lenz v. Universal Music‘ (Technology & Marketing Law Blog 25 January 2013). Goldman discusses the latest decision in the Lenz case (the infamous ‘kid dancing to Prince‘ video and how it was taken down at the request of the record label).  He reports on the way in which section 512(f) of the DMCA (misrepresentation in takedown notices) has been read in a narrow fashion by the court and argues that it will have little purpose in the future.  This is interesting (as is his neat point that because a lot of takedowns now happen outside of the DMCA process, it’s already becoming irrelevant) – for me, having argued that the EU should apply its ‘groundless threats’ approach to notice and takedown to come into line with the DMCA, it’s a warning to draft that suggestion more carefully.

Mike Madison, ‘Coulton, Glee, and Copyright‘ (Madisonian 28 January 2013). On a theme of legal and other considerations – this is an article responding to a scandal which I confess had escaped me (involving Glee!), about a legal issue I’m more familiar with ‘covers of covers’.  For the interest of non-US readers – this is a particular feature of US copyright law where a ‘cover version’ can be the subject of a compulsory licence.  (Actually – as discussed in the post – this isn’t always the solution, as there can be negotiation or going through the Harry Fox Agency instead).  However the situation here (the rights of B in its cover version of A’s composition against C’s cover version of A which is derived from B’s) may stretch the effectiveness of that solution (and, as Madison talks about in the second half of his post, suggest questions about the purpose of the law and about the ethics of the situation.

WhatsApp breaches privacy laws‘ (CBC News 28 January 2013). You know I like stories about apps.  This one is about one of the success stories of last year, WhatsApp (instant messaging).  As the CBC story explains, the Privacy Commissioner of Canada (along with equivalent authorities in the Netherlands) has investigated a bunch of issues regarding the service and privacy.  Some were resolved through changes to the operation of the service, but one major continuing breach was noted – the requirement to grant access to full address books in order to use the service.  The full report is here.

Liat Clark, ‘WTO grants Antigua right to launch ‘pirate’ site selling US media‘ (Wired UK 29 January 2013).  This story, widely reported during this period, is about Antigua’s success before the World Trade Organisation (some time ago now – see case file DS285) in its criticism of US violation of world trade law in respect of the regulation of online gambling.  As suggested for a few year now – but now getting more likely as the measure has been approved – it proposes to use the WTO mechanism of trade retaliation, because the US has failed to implement the binding decision of the dispute settlement process.  The US is professing shock and dismay.  However, as a strong proponent of free trade (and indeed the sanctions associated with the WTO process), I’m sure that an understanding can be reached.  Remember: the US took the case to an appeal and lost, and arbitration has also been pursued.

Jason Del Rey, ‘YouTube Set to Introduce Paid Subscriptions This Spring‘ (Advertising Age 29 January 2013). There’s been a flurry of stories in 2013 about how to build a model of charging for video-on-demand; this story explains the proposal to identify selected channels and charge a monthly (and possibly PPV) fee.  Answers on a postcard – will this, if it succeeds, encourage broadcaster-managed non-archive VOD (e.g. the ‘catchup’ bit of 4od, for example) to try and build a charging system – and if so, is it Spotify-style or micropayments per programme?  (I say non-archive VOD because there is a relatively clear mixed economy emerging for archive VOD with various forms of charging and ad support)

Kevin Chao, ‘Mobile Kills the Console But Advances the Gaming Industry‘ (Wired 31 January 2013). Is this finally the year of mobile gaming?  Lovely stats here and a framing of the issue as being about reach, engagement and monetization.  (There is however an ongoing and very significant issue in the UK – and no doubt elsewhere – about monetization and mobile, the role of mobile network operators vs (e.g.) Facebook credits vs other models and the role of PhonePayPlus (regulates premium rate calls and texts which is one of the ways the charge can be set) – see the very perceptive market study for that very organisation.

Bob Tarantino, ‘What the *BLEEP*? Coarse Language in Radio Broadcasts‘ (Entertainment & Media Law Signal 31 January 2013).  Round-up of Canadian broadcast standard decisions on language and radio.  (On that note, I noted subsequently how the New York Times reported the well-deserved Grammy success of Jay-Z & Kanye West as being for ‘___ in Paris’, and the awkward pacing of the bowdlerised broadcast version of the new UK no. 1 single, Thrift Shop; compare the editing on this page (short silencing of the offending part making the result ‘This is ___ing awesome’) with what actually went on air in the chart show (looping, making the result ‘This is aws-aws-awesome’), here at 2h54m)

Josh Halliday, ‘YouTube study shows children ‘three clicks away from explicit material’‘ (Guardian 5 February 2013).  Oh dear.  Apparently if you find a video aimed at children and then click and then click and click again you end up at a less suitable video.  Traumatic I’m sure, but has anyone figured out a way to prevent that without making ‘related videos’ completely unworkable?  Say a video has 20 ‘similar video’ links, then by the third click we are at up to 8000 possible videos – and by click five it’s over three million possibilities.  See also Six Degrees of Separation, etc.

Adrienne Jeffries, ‘Why Amazon wants its own currency‘ (The Verge 5 February 2013). I was reminded about The Verge by a student recently – just in time for this piece on e-money, with a nice approach to the practical as well as legal or technological reasons to adopt a particular model of payment.

Patrick Wintour, ‘Peers pass low-cost arbitration law for victims of press defamation‘ (Guardian 6 February 2013). Somewhat overtaken by events since, but this was a tricky development in the post-Leveson story – specifically, adding in one bit of the recommendations to the Defamation Bill.  Although I’m not convinced by this approach, I still hold to the view that the Defamation Bill needs to be properly linked up with the Leveson settlement.  I appreciate that some people have waited a long time for defamation reform, and that there is work that needs to be done…but its changes will be more legitimate and sustainable if they form part of the new approach to press regulation (particularly as many of the Bill’s changes are specifically defended as pro-press).

Copyright Reform at IP Osgoode

I’ve written about the (Irish) Copyright Review Committee for the excellent IP Osgoode blog.  You can read the full post here.  Remember, the deadline for submissions has been extended to the end of May, so please consider answering some or all of the Committee’s questions.  Learn more about how to participate here.

New paper on Net Neutrality, in Journal of Internet Law

Regulating the Medium: Reactions to Network Neutrality in the European Union and Canada (2011) 14(8) Journal of Internet Law 3.

In this contribution on network neutrality, the expression-related elements of this issue are considered, including a case study of Ireland, highlighting the broad powers enjoyed by ISPs, and discussing whether the problem is a genuine one. While noting that the matter has been the subject of various publications by a sizable number of US scholars, space is then given to comparing the state of the debate in Europe, Canada, and the United States, drawing on principles of telecommunications law. It is argued that the link between telecommunications and media regulation is at the heart of the net neutrality debates in Canada and (to a lesser extent) the European Union, and that the non-applicability of certain US doctrines in these jurisdictions (due to different market conditions and the established role of competition law) does not mean that regulatory or legislative action is unnecessary. Finally, it is contended that the consideration of net neutrality in the context of important social and political debates regarding speech, plurality, and innovation is a better approach than one focused on ex post identification of the most egregious examples of discriminatory practices.

Download it on SSRN; other papers available here.

SCRIPTed 2009: Internet and Security

Hold on for a rapid trip around the world this afternoon. I’ve focused on the presentations rather than the Q&A – sorry! Chaired by Burkhard Schafer (who is stuck chairing my session tomorrow too…)

  • Sara Smyth (Rochester Institute of Technology) on ‘Child pornography and the law in Canada’; this was the topic of her PhD and forthcoming book (U of T Press). Using Canada as a critical case study on circulation of CP materials; the broadest provisions in the world, but argues that a more narrowly focused provision combined with broad targeting of Internet circulation. ‘Global epidemic’ – but much of the regulatory approach is based on quick fixes. The Canadian law is contained in s 163.1 of the Criminal Code, and includes representations of u-18s as well as actual u-18s, and a wide range of materials (e.g. cartoons, written materials, morphed images, etc); Internet distribution (significant and popular due to privacy, anonymity and convenience) covered by the progression of this rather than the development of a new offence. ‘Moral panic‘ is a good conceptual framework. She discussed the (in)famous R v Sharpe on CP offences vs freedom of expression, reading in exceptions re privately held material. The subsequent amendments (Bill C-2) increased penalties (including mandatory minimum); Smyth argues that materials are circulating while the public desire for ‘justice’ has been satisfied by prosecutions of people like Sharpe, giving examples of R v Chin [2005] AJ No 1712, R v Austin [2006] BCK No 3430 and (missed the last one), and suggesting model legislation that would be more appropriate based on the harm, referring to images that reasonable person would consider indistinguishable from that of a real child (though contrast with Ashcroft v ACLU in the US re: ‘appears to be’). Finally, a model is presented of strategies (int’l co-operation: Canada should ratify the Cybercrime Convention, architectural innovation (interceptability in particular) and user regulation/self-help like INHOPE) that would be of benefit

  • Edinburgh alum Gerrit Hornung (Kassel) is looking at the ID card legislation (passed through parliament in 2009) in Germany. The backdrop is biometric passports and electronic signatures; why have a separate authentication function in ID cards? The approach under development is separating, in terms of the ID card (which includes RFID and biometrics – voluntary fingerprints), between governmental purposes, general authentication (free) and (with additional cost) voluntary signature functions. Constitutional requirements on data protection have been quite influential. User must give written consent to use ID card as electronic proof of identity, and service providers will need an authentication certificate (and to get it must prove legitimate purpose, proof of necessity). There will be application-specific attributes, and alternative information (e.g. being of age rather than specific age, being of a locality rather than actual place of residence). DP supervisory authority can revoke auth certificate or ID card. (Some great diagrams for this). Some practical uses: everything from online opening of bank account to age verification for adult services. It’s planned that services will be available from November 2010 – depends on all parts being present. Some unresolved questions include non-German providers, availability of RFID readers and the security of PINs.
  • Finally, Shizuka Abe & On-Kwok Lai turn to the age-old question of ageing. Ageing in Asia is catching up with N. America/EU. Lots and lots of fascinating (but rapid-fire) tables and graphs, reviewing social and demographic changes across Asian states. Some interesting points included: use of ICT in ‘caring relationship’ (e-medicine etc), the difference between Internet diffusion in countries and how this has an impact on behaviour, ownership of mobile phones and the requirement for ownership across generations in order to be a communicative tool, Imadaco and related GPS services (people-tracking!) and how they are framed by both developer and society, the intelligent pot (!) that tracks your tea-making habits. The common theme is the idea that the authors call ‘ICT-embedded filial piety’, with a zeitgeisty reference to current financial crisis and the need for ‘pro-growth development’ in areas like this; the conclusion is that the use of technologies reinforces face-to-face communication and is also quite local despite the use of ‘global technologies’, and ultimately holds the potential of facilitating ‘inter-generational dynamics’.