(Free) access to articles on apps and on intermediaries

This month, the final versions of two of my articles have been published by Oxford University Press. OUP’s approach to copyright allows pre-prints to be posted on sites like SSRN, but for final versions, the author is supplied with a free-access URL instead. This link can be posted on personal or institutional sites (like this one).

(1) Daithí Mac Síthigh, ‘App law within: rights and regulation in the smartphone age‘ (2013) 21 International Journal of Law and Information Technology 154-186.

An earlier version appeared as a working paper, posted here. The final version includes the changes proposed by the editor and by peer reviewers (including some reorganisation and clarification of the core questions), as well as a small number of subsequent developments.

(2) Daithí Mac Síthigh, ‘The fragmentation of intermediary liability in the UK‘ (2013) 8 Journal of Intellectual Property Law & Practice 521-531.

This is now online for the first time. It’s a shorter paper (just at the upper limit of 7500 words for this journal, although they print in columns so it’s not too long when printed!), which started life as a talk and a briefing paper for events with legal practitioners. Subsequently, I wrote it up in more detail, and also added new material on the Defamation Bill (now Act) as it developed. Here’s the abstract:

It is argued that the system for intermediary liability (for mere conduits, hosts and search engines) is splitting into a number of different systems.

In the case of copyright, intermediaries (particular mere conduits) have new duties. However, regarding defamation (and to a lesser extent privacy), new schemes are reducing the liability risk of hosts – under certain circumstances.

The result is that the single system of the Electronic Commerce Directive is being replaced by a mixture of EU and national legislation, revived common law doctrines, and specific provisions for particular areas of law.

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).

Early thoughts on Leveson 1 of 4 – Regulation

This is one of a series of responses to the publication of the report of the Leveson Inquiry.  For an introduction, and links to other posts, see here.  Sorry, this is the longest one.  I hope it’s worth it.

Much commentary in the lead-up to the publication of the report was on what sort of regulatory system would be recommended.  The report outlines various aspects of a new regulatory system, which would be different from that of the PCC, as well as the proposals put forward by those associated with the PCC and with newspapers.  But actually, we are not sure what model is being recommended yet.  In my view a key feature of regulation must surely be the method of oversight, and it is this particular point where important details are left for a later stage.  The report proposes that Ofcom (and by saying so, ruling out the idea that it would be Government or a Minister) plays a role in recognising an independent regulatory body but how that relationship is to proceed is not yet clear.  The criteria are (to some extent) set out, and it would appear as if the designation would be on the lighter side, i.e. no obvious monitoring role for Ofcom, and the ‘backstop’ (as in place for broadcast advertising) would not be present at first, although it is recommended that Ofcom would be best placed to be involved in that process.

On the other hand, what we do see is many statements on the importance of independence.  The language of self-regulation is also used quite extensively.  I’m watching the summaries and reactions carefully as how this is received and reported is going to be so important.

As for compulsion/incentives there is very positive discussion of the ‘Irish model‘ (pp. 1708ff) and indeed similar proposals regarding the link between subscription to a regulatory body and the use of defences, with some further suggestions regarding arbitration.  I guess the difference in emphasis is that the ‘carrot’ in Irish law is the statutory Reynolds-like defence (responsible journalism), here it appears to be data protection/ICO powers and civil costs (presumably in defamation, privacy etc.). It’s fair to say that if we see methods of co-regulation as being set out on a spectrum, as academics like Chris Marsden have argued, that we don’t have a clear statement in the report on where on the spectrum Leveson would see press regulation sitting.  (This is not necessarily a criticism, as defining that will now fall to Parliament, perhaps).

If I were forming a view on the system (which I can’t without more details), I would also need to know whether decisions of the body would be subject to judicial review and bound to act in accordance with the Human Rights Act.  I should hope so, with penalties of up to £1,000,000 and also the ability to benefit from membership in other proceedings.  For the press, as well as complainants, who guards the guardians is very significant.  Some of this could flow from the method of designation (I won’t bore you with my views on this which I have set out in length), and the report does appear to assume that JR (not sure whether this means ‘old’ style or s 6 HRA) would be part of the scheme (p. 1766), but this could be made even clearer by building it into the statutory underpinning… (To be fair, there is also a very brief mention (p. 1601), in the context of the Hunt proposals rather than the inquiry’s own recommendation, that the industry would be ‘unlikely to contest’ justicability, but that’s far from enough).

I am interested in the question of multiple regulatory bodies.  There is a genuine difficulty in this issue – is a single body the sensible way to have an accountable, understandable system?  Or does (as the BBFC has recently argued, perhaps reflecting its own changing position and role) the existence of multiple regulatory bodies avoid the concentration of power over expression in too few hands?  In the report, it’s not really seen in that way, although it is argued (p. 1779) that more than one regulatory body (in the area under consideration) should be possible but is not advocated and “would (be regarded) as a failure on the part of the industry”.  (But see the recent changes to the Video Recordings Act, recognising two bodies instead of one, so as to separate the video games sector from video/DVD works, which was not really seen in that way; the BBFC or the whole cinema/video/games area isn’t discussed in the report).

There has been some doubt expressed by the Prime Minister on taking forward the recommendations in his speech today.  It’s interesting to see the approach here being about “crossing a rubicon”.  Frankly I think this is a selective reading of the current law, where on one hand we see serious restrictions of press freedom through the law of defamation, contempt of court, official secrets in place, and on the other hand press privileges such as favourable VAT treatment, exemptions from data protection legislation in place.  That rubicon has long been crossed and it is a bit rich for the Prime Minister to suggest that press freedom is currently safe in the hands of the House of Commons.  I am not signed up to the view that the response should be one that satisfies the victims (I’ve never believed that is the measure of law in any other area so I don’t intend to start believing it now), and think that it is unfair to criticise Cameron for failing to honour that sort of promise; however, as this paragraph should make clear, I think the conceptual basis of his approach is dead wrong and potentially misleading.

(For the record, on VAT – the recommendation, following the legal advice of HMRC etc, is that this is not really a viable method of control: p. 1660).

An eye-catching recommendation is a specific statutory provision on the freedom of the press (p. 1780)  This is fairly new to me but I probably missed it in the avalanche of evidence and documents.  I can see it being part of the mandate of a regulatory body for sure, but I’m not sure what it offers above and beyond the existing requirement of article 10 ECHR as referenced in the Human Rights Act.  And two other things: (a) constitutional provisions on press freedom are controversial in terms of the relationship between the rights of the press, rights to expression more generally, and the wide idea of communication rights, and (b) the EU Charter now couples freedom of expression and media pluralism; would that approach be followed here?  The draft here, modelled on that of the Media Regulation Round Table, is called an admirable proposal but not prescriptive as to text.  I think that caution is wise – as drafted, it seems too favourable to media interests and its relationship with Article 10 ECHR and Article 11 CFR is unclear.

Just a point on education and training, which was a big theme in the earliest Leveson hearings, but is not the subject of a specific recommendation after all.  It’s noted (p. 736) that training is increasingly university-based and the importance of training is emphasised.  Would the new press body have a role to play?  I don’t see anything on that but it may be helpful.  Perhaps this is a thumbs-up for existing education but I wonder whether further action will be needed under this heading…

Speak high, speak low

Jacob Rowbottom (late of Cambridge, now of Oxford) has written a fascinating article on ‘low level digital speech’.  It will appear soon in the Cambridge Law Journal, but a draft is available on SSRN, under the catchy title of To Rant, Vent and Converse: Protecting Low Level Digital Speech.  It’s a great read – and a very timely intervention in the debate on Internet regulation.  This post is my personal summary of some key points along with some responses – for the author’s own introduction to the topic, see his post at the Inforrm blog.

The key background feature to the article is that the nature of online communications means that while individuals have new or enhanced opportunities to speak, they are also more likely to be engaged with the legal system in doing so.  For example, the change to the historic focus of libel law on the mass media (p. 3; all page refs to the SSRN draft) and the implications of storage, search and ‘persistence’ for individuals (p. 9) are canvassed .  [On libel - the Reynolds defence and its limitations are briefly discussed, which is important in the light of the current defamation reform efforts.  Actually, I'm optimistic about this, given the possible link between Reynolds and responsibility more generally (cf Irish Defamation Act 2009), and glimpses of a non-media approach, e.g. in the Privy Council case of Seaga v Harper (para 11).]

From this, Rowbottom develops an argument about ‘high level’ (professional, researched, wide audience) and ‘low level’ (amateur, conversational) speech.  This weaves in and out of the existing (and controversial) concept of the ‘value’ of speech.  Low level may require a particular type of protection, and the author discusses factors such as context, the opportunity to prepare/edit the material, the type of audience [real potential for media studies-style audience research here, I think, along the lines of the great 1988 'third person effect' work on defamation which is so much fun to teach], the knowledge of the user [which I read as a note to lawmakers that media literacy and public legal education should be a core part of a regulatory strategy], and more.  There’s also an intriguing argument about freedom of thought here, which I’m still chewing on.  My former colleague Robert Heverly (now at Albany) gave a very provocative workshop paper recently about the Internet as a collective mind, so this is an idea really coming into its own now.

One of the interesting (and effective) tools of the article is collating a mixture of cases – appeals, sentencing decisions, newspaper reports of trials, and so on – and so presenting a more accurate picture than one would get from looking at statutes and major cases only.  We see the ways in which the different statutory provisions are being used in practice, and indeed the overlap between them.  On that, the statute book doesn’t fare very well.  The main part of the article discusses a range of statutes (e.g. on public order, malicious communications) and how they have been interpreted and used.

I hope the reader will allow me a brief plunge into the mess that is section 127 Communications Act 2003.  Rowbottom is rightly critical of its use as a catch-all offence (p 8) and, more broadly, of selective prosecution (p 9).  One could be even more critical, though, through considering its origin (as a provision of post office law, then of the regulation of the national telephone system), and indeed its non-application to certain forms of communication (letters, broadcasters, painted walls).  It [and its close cousin s 125 on dishonest use of a network, which I kicked in the knees in my wi-fi piece] need to be completely reassessed.  There’s nothing wrong at all with requiring the court to take the medium of communications into account – but having a ‘special’ provision for electronic communications of this nature achieves very little.

There’s also (p. 21) a discussion of self-regulation, which is sensibly aware of the perils of assigning responsibility to private operators of websites, and also offers a link to ongoing discussion on the regulation of media and advertising, e.g. in the Leveson Inquiry.  The discussion of quick adjudication for the intermediary to work from is also of interest to the Joint Committee on the Defamation Bill, and the Government response to it.  Rowbottom doesn’t present a detailed scheme for regulation, but the intention, as I see it, is to suggest possibilities for further investigation, mindful of the analysis of the importance of low level speech.

What will this article achieve?  I’d suggest a couple of things.  In policy terms, it’s a key reading for anyone considering ‘new laws’ on various harms associated with the use of the Internet.  In general academic terms, I hope that it will spark a debate on freedom of expression of the nature that the author notes in the US (on democracy and discourse) in the footnotes to p 13.  Indeed, the framework of high/low value could be capable of application in a variety of other contexts.

For IT/media law, it’s a very significant European contribution to what I have called (here, in the context of private ordering) the ‘mass age’ of Internet law, where researchers need to look at how speech fares on the (digital) ground, without getting locked in to kneejerk forms of technological determinism or indeed technological neutrality (but that’s for another day).  The fact that Rowbottom (primarily associated with public law, politics, and human rights) has looked at literature on cyberlaw (mostly US) and on the ECHR, in a ‘mainstream’ journal, should also increase the visibility of these issues, which is particularly welcome, in the way that, for example, Chris Reed’s ‘bad law’ work in the MLR did recently [which I'll be blogging about very soon, as I've just received my copy of his new book].

(FYI, the source (ish) of the title of this post).