Regulation

Protecting Digital Rights

Internet service providers are hardly known for their efforts to protect the rights of their clients. This is hardly surprising considering they low amount of money they make per client compared to the legal costs which would be entailed in attempting to defend a client. For example: A cheap web hosting service costs less per year than a lawyer costs per hour. It’s not too difficult to work it out.

At the same time the ISPs are our lifeline and basis of our ability to participate in a digital society so this lack of help is a serious flaw. So it was nice to see that the Council of Europe have published Human rights guidelines for Internet service providers

Developed by the Council of Europe in close co-operation with the European Internet Services Providers Association (EuroISPA), these guidelines provide human rights benchmarks for internet service providers (ISPs). While underlining the important role played by ISPs in delivering key services for the Internet user, such as access, e-mail or content services, they stress the importance of users’ safety and their right to privacy and freedom of expression and, in this connection, the importance for the providers to be aware of the human rights impact that their activities can have.

in addition to this document the Council of Europe have also published Human rights guidelines for online games providers

Developed by the Council of Europe in close co-operation with the Interactive Software Federation of Europe (ISFE), these guidelines provide human rights benchmarks for online games providers and developers. While underlining the primary value of games as tools for expression and communication, they stress the importance of gamers safety and their right to privacy and freedom of expression and, in this connection, the importance for the games industry to be aware of the human rights impact that games can have.

Documents such as these are the early steps at ensuring the protection of individuals online rights and as such should be applauded even if it is kind of worrying that we still see a need to attempt to define rights in online environments as something fundamentally different from human rights in the offline world.

Posted on by mklang

Quotable

The Australian Senator John Faulkner seems to be a highly quotable person. Here are two quotes from the New Zealand website Stuff.co.nz

A Facebook posting or a YouTube video, like an ill-considered tattoo, can linger forever.

and

Trying to legislate to control technological development or the ways people use technology is not perhaps ordering the tide to not come in, but it is certainly like trying to empty a bathtub with a teaspoon.

Now that’s a man with a sense for metaphors! The Australian Law Reform Commission recently handed the Government Australian Privacy Law and Practice (ALRC Report 108) a three-volume, 2694-page report which contains 275 recommendations to improve privacy laws. It is being considered by the Government.

Posted on by mklang

Regulating Images

There is a very interesting article by Chris Colin over at SFgate called Nasty as they wanna be? Policing Flickr.com it’s about the group that attempts to maintain order and rules among Fickrs thirty million members who have posted 2.8 billion images.

At first glance this parallel society has been made, quite literally, in the image of our own. But in truth it’s more like a Photoshopped image — the nice parts accentuated, the inappropriate bits cropped away. So it goes with any online community, of course. Behavior must be moderated and a communal ethos must be preserved; Wild West cliches aside, total freedom at any entity like this would sink it in a storm of lawsuits, flame wars and gridlocked cacophony. So directors of community exist. And while the job of nurturing and policing any online realm would make for a fascinating study, I was particularly curious about how it worked at Flickr.

The interesting part of the article on regulation of social content is the fact that no matter how far along we have come, no matter how many articles are written and read, the state of regulation of social matter will not be resolved in a final manner.

Guidelines such as Flickr’s community guidlines, as vague and inadequate as they may seem, are probably the best way to go. My favorite rule among the guidelines is: “Don’t be creepy. You know the guy. Don’t be that guy.” It’s not the way in which laws can be written but as the rule itself says we know what they mean. These types of rules and a certain level of benevolent dictatorship by an adequate superuser, owner or group.

Champ, for her part, has no qualms defending “the Flickrness of Flickr.” A while back a group calling itself “Islam is Hell on Earth” was removed. Champ is unapologetic: “We don’t need to be the photo-sharing site for all people. We don’t need to take all comers. It’s important to me that Flickr was built on certain principles.”

Not everyone is going to be happy but it is important to remember what we often forget and that is that Flickr is not there for a community. They are there because their customers pay them. If any small group of customers threaten Flickr’s income then they will be removed. This is not democracy – it is business. Unfortunately some users forget this point.

Posted on by mklang

Grapes with licensing agreement

Via Boing Boing comes this marvel of legal wackiness. The plastic bag containing grapes has the text:

The recipient of the produce contained in this package agrees not to propagate or reproduce any portion of the produce, including (but not limited to) seeds, stems, tissue and fruit.

I suppose that the sellers are trying to make an analogy with shrinkwrap licenses. The result, if the text on the bag is upheld in court, would mean that any attempt to grow new grapes from the content of the bag is in violation of the “license” (for the want of a better word). Violating a contract does not mean automatically that the seller or producer can recieve damages so what is left? If you manage to grow something from this bag you will have to give back the original grapes? Its all too confusing.

photo: Grapes with an EULA by dasmart (CC by-nc-nd)

Posted on by mklang

Buzzing with FRA

The whole of Sweden is buzzing with the new surveillance law entering into effect in 2009. Or at least many of the Swedish blogs I follow. The outside world is a mystery to me since I am stuck inside writing. Paddy K has written an English version of what’s going on that is well worth reading. Not only that he also lightens my guilt of not actually being more active in publicising the anti-FRA to the non-Swedish speaking world, which is most of you out their since there are only 9 million swedes.

Paddy K also includes the brilliant line:

I guess politicians have short memories. Or scriptwriters with a developed sense of irony.

Thanks I needed a laugh!

The Swedish wikipedia has a good background on FRA. For more about this in English check out EDRIgram, jill/txt, English wikipedia and the Economist.

Posted on by mklang

Voodoo Science

In what is one of the best examples of voodoo science and the gullibility of the law that I have seen in a long time (ever?) a court in India has accepted a scientist claims that his machine can measure guilt.

The International Herald Tribune reports a case concerns a woman who was accused of killing her former fiancé by poisoning him.The legal system decided to test the Brain Electrical Oscillations Signature test of Neuroscientist Champadi Raman Mukundan.

The test to measure her guilt consisted of placing 32 electrodes on the accused head. They interrogators then read aloud their version of events, speaking in the first person along with with neutral statements. From this the software distinguishes memories from normal cognition. Even if the accused said nothing her brain reacted when the crime was described. The judge agreed that the scans were proof of “experiential knowledge” of having committed the murder, rather than just having heard about it.

Obviously there are too many reactions to this! But let’s ignore the obvious lack of technical reliability, the need to prove the technology and the differences in legal and scientific methods and standards of proof.

Lets just say that the accused may have a guilty conscience in relation to the victim for several reasons other than the fact she may or may not have poisoned him. In addition to this she may lack any emotions of guilt even if she poisoned him.

The scary part is that the dignity of science is accepted without too many pertinent questions by the court and create real consequences.


Voodoo Fetish Market, Lomé by themanwithsalthair

Posted on by mklang

File Sharing in Britain

Virtual Law@LSE writes that BT, Virgin, Orange, Tiscali, BSkyB and Carphone Warehouse have all signed up to the Government’s new Memorandum of Understanding (MoU) on File Sharing. [BBC, Guardian, Telegraph]

The MOU means that the companies have to work to create a “significant reduction” in illegal filesharing. This may sound easy enough but spying on customers and accusing them of violating copyright law is not really good business – especially for companies whose business it is to sell faster (and more expensive) broadband. The ISP’s have in the MoU agreed to send out “informative letters” to customers whose accounts have been identified as being used for potential file sharing. But as Virtual Law@LSE writes:

It would appear many thousands of people will get letters from their ISPs telling them that the BPI has identified them as potentially being in breach of copyright. The ISPs should be careful here in terms of customer relations. It is never a good idea to tell a customer of your that someone believes them to be a copyright infringer. It will (a) suggest you are snooping on them (which to an extent is true), (b) suggests you are entitled to lecture them on their activities online and (c) suggests you are serving the interests of the BPI not their own customers.

In order to be able to send the letters to suspected file sharers the ISP’s must either monitor all data traffic or only monitor those who use unusually high amounts of broadband. Either way the ISP’s are uncomfortably close to violating peoples privacy. Maybe not in a legal sense and maybe they are acting within the limitations of their customer contracts but still tantamount to surveillence and a violation of privacy.

It is also a form of privatized regulation through technology which sits uncomfortably with the potential freedom that the technology enables…

Posted on by mklang

Frenchmen risk being banned from the Internet

The French have gone and done it! Times Online reports:

Anyone who persists in illicit downloading of music or films will be barred from broadband access under a controversial new law that makes France a pioneer in combating internet piracy.

“There is no reason that the internet should be a lawless zone,” President Sarkozy told his Cabinet yesterday as it endorsed the “three-strikes-and-you’re-out” scheme that from next January will hit illegal downloaders where it hurts.

This is, as I have argued earlier (last time in January), a really bad idea. Why is banning people from the Internet a bad idea?

The Internet has been promoted and become our most basic communications infrastructure (my focus here is Europe since this is where the the French are).

1. The punishment does not fit the crime: We have changed the way Banks, Post Offices, ticket sales, hotel booking, insurance (etc, etc) work and banning someone from the Internet will be tantamount to branding a symbol of guilt onto the person. Not to mention the increased costs involved in time and money. Indeed why should copyright violation prevent me from online banking?

2. Group punishment: If an Internet connection is involved in copyright violation this does not mean that all those dependent upon that connection should be punished. The actual violator may be underage or the network may be open to others.

3. Privatizing the law: The ability to punish copyright violators should not be delegated to private bodies. Internet providers are not equipped to mete out legal punishments.

Earlier, when arguing against proposals such as these I wrote:

The proposals seen above are simplistic, naive and dangerous they show a fundamental lack of understanding not only of technology or its role in society but also a lack of understanding of the role of communication in a democratic society. The actions of the politicians proposing such measures show that they are not acting in the interests of the individuals they are there to serve.

Even if the French have chosen to go the other way – I still believe that they are wrong…

Posted on by mklang

Activist Wifi

Stealing wifi is an old subject but it remains an interesting one. That some people have been prosecuted for stealing wifi in different parts of the world is also old news.* Still most of us have no problem checking for open networks when we need to access. I have also known users to be on their neighbours wifi without knowing or meaning to – they just don’t understand the difference. But this may be a minorty.

The availablity of open networks is either intentional, unintentional or even accidental. Accidental occurs when people don’t know about wifi and unintentional happens when people don’t know what they are doing. Then there is the group who intentionally shares their wifi.**

Some would prefer to share because sharing is good. Bruce Schneier has written about the added good of openness.

Similarly, I appreciate an open network when I am otherwise without bandwidth. If someone were using my network to the point that it affected my own traffic or if some neighbor kid was dinking around, I might want to do something about it; but as long as we’re all polite, why should this concern me? Pay it forward, I say.

The attitudes about freeloading and sharing vary. Some are scared of intrusion, some support the openness and others could not care less. Unfortunately the latter group is growing. I say unfortunately since the default settings on more wireless routers, especially those provided by ISPs, are closed.

This is the equivalent of the house advantage in roulette. Slowly and surely their will be no openness left other than those few activists who strive to ensure open networks. This means that the struggle for openness will go from the commonplace to the realm of the activists.

—

* Arstechnica reports that an Illinois man was arrested and fined $250 in 2006 & in Michigan man who parked his car in front of a café and snarfed its free WiFi was charged this past May [2007] with “Fraudulent access to computers, computer systems, and computer networks.” In a similar case from Singapore (Engadget) a 17-year old recieved 18 months of probation under the Computer Misuse Act for stealing his neighbours wifi. In the UK one man was been arrested and two people have been cautioned for WiFi theft or “dishonestly obtaining electronic communications services with intent to avoid payment.”

** Sharing wifi will in most cases violate the contract terms for most internet service providers.

Posted on by mklang

What is art? Confusion in copyright

In many forum discussions the acronym ianal (I am not a lawyer) is used to denote that the writer is not a lawyer. In all fairness then I should begin this article by adding ianaa – I am not an artist. My interest in the definition of what is, can and should be art come mainly from my work in the field of copyright – even though I have an amateur interest in art.

When I first attempted to approach the question of art in 2003 I was naïve enough to think that there was a simple answer to be found and that it was just a question of locating it. Boy was I wrong. The only thing that I have found to be common to a definition of art at large and art in copyright is that it must have an expressive element.

Most often the artist must intend a work to be art for it to be considered art. But this is not always necessary. In some cases the viewers of the work may raise an aesthetic expression to the status of art despite their being no intention from the creator.

The utilitarian object: A dustpan in my house is not art. A dustpan hanging in the cleaning closet at the museum of modern art is not art. A dustpan hanging on the wall displayed among exhibits of the museum of modern art is art. The creator of the dustpan did not have the intention of creating art however the artist may use this everyday object as a piece of art and display it as art in order to create an aesthetic expression.

In 2004 a survey among 500 art experts chose Marcel Duchamp’s urinal to be the most influential modern art work of all time. The creator of the urinal does not have copyright in it – although he or she may have protection for its design but this protection can only be awarded for the elements of the design that are not their for solely functional use.

urinal2.jpg urinal.jpg

Left image of Duchamp’s urinal 1917 photo: Readymade by GriXx (CC by-nc-nd), Right image photo Urinal by Eatmorechips (CC by-nc-nd)

Copyright law is in trouble here since the object cannot be protected as it is and yet it is possible to protect the work via copyright. The photo’s here are the copyright of the photographers. The Duchamp urinal is made specific via his signature and making copies of it are limited since the rights to the work belong to the copyright holder.

Unintentional art: In an recent post about snowmen and copyright I discussed how a snowmen scene (two snowmen pushing and pulling a large wheel over a third snow figure lying in front of the wheel) could be seen as art even if it may not have been the intention of the creators to create anything beyond their own amusement. The creator may, for many reasons, not be intending to create art but the world at large may appreciate the results and classify the work as art. In this case the expression is awarded the full protection of copyright law despite the lack of author intention.

Koko is a lowland gorilla with a sign language vocabulary of 1000 words. Koko has also painted many pictures which have been sold in art auctions.


Bird Red Slice (abstract) by Koko (acrylic on canvas) 1984

The problem with copyright in unintentional art is interesting but it is made even more so by Koko. First, does copyright have a requirement of intent in the expression of art? Here the answer should be no. Second, and more specific to unintentional animal art (Koko is not alone) can animals be authors as understood by copyright law? There does not seem to be a formal requirement to be human in the law but I have been unable to find a non-human copyright holder.

 

The problem is that this is not the way in which art is defined by Encyclopedia Britannica (login required): “…the use of skill and imagination in the creation of aesthetic objects, environments, or experiences that can be shared with others…” since this definition seems to require the intent of the creator.

Art and copyright are complicated subjects and I think that the only way to end this quote is with a Monty Python classic sketch with the pope discussing art with Michelangelo which ends with a comment by the pope (played by John Cleese): Look! I’m the bloody pope, I am! May not know much about art, but I know what I like!

Posted on by mklang