Informationoverlord

The UK parliament’s joint committee on human rights have published a report criticising the government’s attempts , through the Digital Economy Bill, to tackle illegal file-sharing. They say the bill – as currently drafted - may create over-broad powers, and that some provisions in the Bill are not specified in enough detail to ensure that they will operate in a way which does not risk a breach of individual rights.

The committee looked at the bill and the Explanatory Notes and Human Rights Memoranda. The Committee points out that The Explanatory Notes to the Bill provide a basic explanation of the Government’s view that the Bill is compatible with the European Convention of Human Rights (ECHR) and that the supplementary Human Rights Memorandum accurately identifies a number of relevant human rights issues. However they found that the substance of the analysis in the memorandum adopts practices they had previously criticised – namely relying on Section 6 of the Human Rights Act 1998 to justify their view that broad discretionary powers in a Bill or in secondary legislation will operate in a way which is compatible with human rights. “On the issue of online copyright infringement: the Memorandum does not contain much detail in its analysis of a number of rights; inaccurately identifies the proportionality exercise required; and fails to consider the arguments for justification in any detail. In addition, it relies on the Section 6 HRA 1998 duty on both the Secretary of State and OFCOM to argue that certain delegated powers are appropriate and will not be exercised in a manner which breaches Convention rights.”

Copyright infringement reports

The Committee find it unlikely that the issuing of such report by ISPs will result in a significant risk of a breach of individual internet users’ pivacy rights although they still call on the Government to provide a further explanation of why they consider their proposals are proportionate in the light of the fact that the copyright infringement report and any subsequent list may form the basis for the imposition of technical measures which will have a more significant impact. Here they were referring in particular to the lack of detail about the process provided on the face of the Bill re: a legal limit on the circumstances in which an ISP will be required to disclose a copyright infringement list – how many ‘alleged’ infringements and over what timescale.

Technical measures

The Committee correctly identify that meat on the bones in these proposals in missing from the bill and state that they do “not believe that such a skeletal approach to powers which engage human rights is Appropriate” They find there is potential for these powers to be applied in a disproportionate manner which could lead to a breach of internet users’ rights to respect for correspondence and freedom of expression.

The Committee point out that the entire technical measures mechanism will be created by a combination of secondary legislation and the “technical obligations code”. This means that a number of key features are undefined or extremely broad. They say it is all very well for the Government to say that individual copyright holders will provide evidence and will only seek sanctions against “serious infringers”, but neither of these things is outlined in the text of the Bill and that the standard of evidence expected or the standard of proof to apply has also not been clearly explained.

In their view the government still needed to address the following:

a) the precise intended impact of these proposals on individual accounts, including (i) whether technical measures may include indefinite suspension of an account and whether any service limitations imposed will be for a specified time-frame and/or renewable; and (ii) any potential impact the imposition of technical measures may have on the ability of a user to secure an alternative service;

b) the minimum criteria which would be required to be satisfied before the imposition of technical measures. The Government has indicated that technical measures will follow the issue of copyright infringement notices. It would be helpful if the Government could clarify whether (i) the imposition of technical measures will be subject only to the initial assessment of the copyright holder that it appeared that the individual service user had breached his or her copyright; and (ii) if so, would the same standard of evidence and proof be required for the imposition of technical measures as would be required for the issue of copyright infringement reports?

The Committee recommended that “the Bill be amended to make it clear that technical measures may only be introduced after an assessment by OFCOM of the necessity and proportionality of these new measures, taking into account the impact of the initial obligations code. In so far as it is possible, we recommend that the Bill should be amended to provide additional details on the minimum criteria for the imposition of technical measures, including the standard of proof which must be applied; the “trigger” for the imposition of such measures; and any relevant defences for service users who have taken all reasonable measures to protect their service from unauthorised use and who have not knowingly facilitated the use of their service for the purposes of infringing copyright.” Interestingly the government has already rejected proposed Lords’ amendments that covered just these things.

Right to a fair hearing

The Bill provides for provisions for appeals in codes, however the committee identifies there is little detail about the right to appeal in the case of copyright infringement reports or decisions about the inclusion of certain individuals’ information on copyright infringement lists. The committee recommends “that at a minimum, the Government must be required to confirm that the First Tier Tribunal will be able to consider whether an infringement of copyright has occurred and any defence that no infringement of a copyright holders’ rights has been committed or knowingly permitted by the account holder.”

Clause 17

The Committee has particular concerns about the new power in Clause 17 that allows for the Secretary of State to amend the Copyright, Designs and Patents Act 1988 by secondary legislation. This provision that has been the subject of much criticism, and lead to government amending the text of the clauseto limit the power and to use the special ’super-affirmative’ procedure to ensure that any proposed changes would be better scrutinised by Parliament.

The Committee remained concerned that, despite this (then promised) move that Clause 17 remains overly broad and that parliamentary scrutiny may remain inadequate, and the government should explain why parliamentary scrutiny of any relevant human rights issues will be adequate without any power for Members of either House to propose amendments to the draft order.

In essence the Committee are not yet convinced that these parts of the bill do stand up to the government’s assertion that the bill is in full complaince with the ECHR. They also highlight a fact mentioned by many of the Lords’ in recent proposed amendments - that the detail of the bill is being sidelined to codes and SI’s instead of guarantees being made in the primary legislation: a trick this government has excelled in - see the Regulation of Investigatory Powers Act for a fine example of this.

Will the government listen? Probably not. They may, at some point, sacrafice clause 17 if it looks like doing so will guarantee the bill getting on the staute books before the election. Indeed a true cynic might argue that its place in the bill in the first place is designed purely to be a bargaining chip to ensure other measures get through mostly unscathed. We shall see.

This one goes out to my good friends Coesee coetsee.seo@gmail.com ; abass abass.seo@gmail.com ; henrylow henrylow.seo@gmail.com and others who seem to like leaving endless spam comments on my blog plugging onlineuniversalwork.com – There, look. I’ve just given you free publicity in a blog post. You won.

And to show just how much you mean to me , I have written this poem to you based on your insightful comments.

Affiliate Marketing is a performance based sales technique,
I know just reading those words makes my knees go weak.
Used by companies to expand their reach into the internet at low costs,
And left as spam comments by onlineuniversalwork toss-pots

This commission based program allows affiliate marketers to place ads,
So you can learn how to spam like their moms and their dads.
On their websites or other advertising efforts such as email distribution,
we will all say ‘praise be’ for your endless spam contributions.
In exchange for payment of a small commission when a sale results,
we can all be like you, a bunch of annoying spam cunts.

Apple want me to spend around £400 to buy a giant 16GB iPod Touch. Hmmm… Yes, the iPad is nice a shiny, just like all Apple’s stuff, but what is it for exactly? When and where would I use it?

Q: Would I take it out and about with me instead of a netbook/laptop?

A: No.

Q: Would I buy it to read books?

A: No. At £400 that’s still an expensive eBook reader with a backlit screen.
Q: Is it a game changer?

A: No. The iPod was, the iPhone was, this is just a nice piece of kit.

Q: Do I want one?

A: Of course.

There is a nice straightforward article by Thomas Vander Wal on Zdnet blogs about Taxonomies.  In it he explains why - as many of us know - that withi an organisation it should not be a choice between traditional taxonomies OR social tagging/folksonomies, but that it should be an AND choice with the latter informing and feeding into the former.

The fact that a Taxonomy should be a living thing is one I have seen overlooked in companies before.

 Vander Wal uses the following table to show how by combining them each of their strengths accounts for the other’s deficiencies.

Good article. Well worth a read.

2330. As to alleged misrepresentations as to resources made prior to the selection of EDS and the Letter of Intent: the Greater Resources Representation was not made by EDS and Sky have not established that EDS made a misrepresentation in relation to the Lesser Resources Representation or the Ready to Start Representation. Accordingly, EDS are not liable to Sky for misrepresentation as to resources.

2336. In relation to the allegations of misrepresentations prior to the Letter of Agreement, the statements made by EDS did amount to a representation that they had developed an achievable plan, which had been the product of proper analysis and re-planning.

The always insightful Eric Goldman comments on jurisdiction in a case between Daniel Miller, the creator of online flash game ‘Boomshine’ and Facebook. Miller – a Facebook user – has gone after Facebook - in addition to Yao Wei Yeo who he accuses of producing a game / Facebook app ChainRxn, that violates his “look and feel” copyright in Boomshine - for its role in providing access to the app.

Miller wanted the case heard in Georgia, the Court instead agreed to Facebook’s request that it be heard in California, as asserted under the terms and conditions of the Facebook user agreement.
As Goldman points out, what makes this interesting is that the Judge decided that Miller’s complaint about another app – which is nothing to do with his use of the service - is covered by Facebook’s general forum selection clause, which purports to govern “any dispute about or involving the Web site and/or the Service.” As Goldman says, “Read literally, this court seems to be saying that all 350M Facebook users are required to sue Facebook in Facebook’s home court for any claim they may have that relates to Facebook.com.”

Ofcom is consulting on a request by the BBC to amend to its digital multiplex licence (Multiplex B), to allow the BBC to restrict the availability of programme listing information for HDTV services only to digital receivers (digi-boxes) that implement content management technology.

The BBC first punted this idea back in September 2009 and was sent packing by Ofcom who told it – following a lot on negative response from a first consultation – that it needed more information about why this would be good for consumers if it were to stand any chance of approval.

It seems to have worked.

Ofcom states that it is now minded to approve the request finding that content management is a justified objective and that the ability to restrict the availability of EPG data to receivers which implement content management, represents the most appropriate means for securing the benefits of a wider range of HD content for citizens and consumers. The proposals also call licence holders for Multiplexes C and D, which carry a similar requirement to Multiplex B to provide EPG data in an open format, be also granted a similar licence amendment to allow EPG data to be broadcast in a closed format.

Before allowing the BBC to broadcast EPG data in a closed format under a licence amendment, Ofcom would require that the BBC implements: commitments to establishing an “appeals” process whereby viewers who believe their lawful usage is being impinged by the BBC’s use of content management can raise their concerns to the BBC; to work with the other public service broadcasters to create a ‘user friendly’ consumer guide to content management; to facilitate discussions between broadcasters, manufacturers, relevant industry bodies and consumer groups to develop and implement a good practice framework for the use of content management on the HD Freeview platform; and to give an undertaking that it will respect current usage protections under copyright law and any future extension of these protections, such as those recommended by the Gower’s Review of Intellectual Property – such as format shifting.

So what would this mean in practice?

Under the BBC’s proposals, broadcasters would be allowed to allocate one of three content management states to individual HD programmes:

Unrestricted copy: the digital receiver output is unencrypted and unrestricted copies of HD content can be made onto any digital device. There are no restrictions imposed on internet distribution.

Multiple copy: the digital receiver output is encrypted and unrestricted copies of the content can be made onto digital devices that are compatible with the copy management technology. Internet distribution is not permitted.

Managed copy: the digital receiver output is encrypted and only one copy of the content can be made onto a DVR and one external digital device which is compatible with the copy management technology. Internet distribution is not permitted

In all three content management states:

Ofcom’s current intention is also to make a requirement of the BBC being able to broadcast EPG data in a closed format under a licence amendment, that the free to air HD broadcasters on Multiplex B must only apply the minimum level of content management needed to secure content from rights holders.

This sounds good , but if the minimum level of content management that all broadcaster demand is ‘Managed Copy’ then that will be the minimum level of content management needed to secure content from rights holders – so, this is a fairly worthless statement.

Ofcom is clear that that content management cannot be applied to Standard Definition (SD) content, or HD content that has been converted down to SD, and that no restrictions are placed on the recording of HD content onto an DVR which is integrated with a receiver.

For digi-box/receiver manufactures what this means it that they would have to sign licensing deals with the BBC to gain access to Huffman Code look-up tables, to be able to ’see’ the HD content. This will be licensed on a royalty-free basis and on fair, reasonable and non-discriminatory (FRND) terms to any party who undertakes to comply with the content management standards agreed and specified by the Digital TV Group (DTG), and the BBC will be only be able to require content management technologies in receivers that form part of the DTG specification

Why the whole idea should be binned.

It’s all about piracy, right? Just as it was when DRM was stuck on CDs - and that worked SO well. Rights holders don’t want their HD content appearing online (unless they put it there of course) hence why ‘Internet distribution is not permitted.’ In the only option above that rights holder would choose. Very nice. The reality is that if someone want to put your content online on a bit-torrent site they will, and it only takes one person to do it. What this proposal does is wastes time and money for no net benefit to the consumer – nor in reality the rights holder – all for the sake of what exactly?

Also, when you look at, for example the Multiple Copy and Managed Copy options what is are “digital devices that are compatible with the copy management technology” ? Is a blank DVD covered by this? Is an iPod? Or are we, as I suspect, just going to do things that piss off the consumer?

The Rights Holders may say, look most people just want to record something and maybe watch in on a mobile digital device or burn a copy to disc – we’re not going to stop them doing that (although I’m sure they want to stop you doing either of these things), but if they say this – which could fit the description of ‘Managed Copy’ – the questions would be, well, they can already do that now. If that’s what the average person is going to do, then you don’t need any of this DRM in place at all. If instead you’re after the few who will burn off and sell or upload to the internet and share, then they’re going to do that whether or not your output is encrypted or not.

DRM applied in this way is, as it has been every time it has been applied, is a means of saying ‘we are going to treat you all like you’re potential criminals. …because that’s how we like to think of your our valued customers.’ This proposal is merely the latest example of it.

Sadly it is now a done deal. Once Ofcom is ‘minded’ it means it has ‘decided’.

Why I love buying Concert tickets and why you should always look on more than one site.

Today I was looking at an upcoming gig and on Ticketmaster the price for 2 tickets was quoted as £16.50 each (inc booking fee etc). On See Tickets the same tickets were £15.75 each (in booking fee) but with an additional charge of £2.25 as a transaction fee for any order.

So, a total of £33 on Ticketmaster and £33.75 on See Tickets.

So, I bought the tickets from Ticketmaster, right?

WRONG.

What I had not yet mentioned was the £5.25 additional charge by Ticketmaster for sending the tickets to you by secure mail – their only delivery option: no box office pick up or eTicket or unsecure mail option. No postage charge on See Tickets, so the actual totals for the two tickets on both sites are:

Ticketmaster: £38.25
See Tickets: £33.75

As an aside, the face value of the tickets is £13 each, which means Ticketmaster is just shy of charging you for a third ticket to buy just two.

Anyone remember the days when you could buy at the box office and pay the price it actually says on the ticket? …

The High Court has dismissed BSkyB’s appeal against rulings by the Competition Commission (CC) and the Secretary of State, as upheld by the Competition Appeal Tribunal (CAT), that directed BskyB to decrease its 17.9% shareholding in ITV to below 7.5%. The court did disagree with the CAT’s conclusion as to media plurality, reinstates the CC conclusion on that point, and suggests now that possible difficulties in applying section 58(2C) and section 58A(5) of the Enterprise Act 2002 have been identified, that the government should look to amend the legislation accordingly.

The Court identified that the key issue on media plurality turns on the correct view of the interaction between section 58(2C) and section 58A(5) of the Enterprise Act 2002 , and in particular on the meaning of the phrase, not defined in the Act, “sufficient plurality of persons with control of … media enterprises” in section 58(2C)(a).

58A(5)
(5) For the purposes of section 58, where two or more media enterprises—
(a) would fall to be treated as under common ownership or common control for the purposes of section 26, or
(b) are otherwise in the same ownership or under the same control,
they shall be treated (subject to subsection (4)) as all under the control of only one person.
58(2C)

(2C) The following are specified in this section—
(a) the need, in relation to every different audience in the United Kingdom or in a particular area or locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience;
(b) the need for the availability throughout the United Kingdom of a wide range of broadcasting which (taken as a whole) is both of high quality and calculated to appeal to a wide variety of tastes and interests; and
(c) the need for persons carrying on media enterprises, and for those with control of such enterprises, to have a genuine commitment to the attainment in relation to broadcasting of the standards objectives set out in section 319 of the Communications Act 2003.

It concluded:

“[I]t seems to us that the Commission was correct to hold that, whereas in reckoning the number of controllers of media enterprises for the purposes of section 58(2C)(a) only one controller is to be counted in respect of both or all of the relevant enterprises (here Sky and ITV), nevertheless, when it comes to assessing the plurality of the aggregate number of relevant controllers and to considering the sufficiency of that plurality, the Commission may, and should, take into account the actual extent of the control exercised and exercisable over a relevant enterprise by another, whether it is a case of deemed control resulting from material influence under section 26 or rather one of actual common ownership or control. It does not seem right to us to read the artificial effect of section 58A(5), in a case within paragraph (a), as extending farther than is necessary and clearly required by that provision. This reading of the subsection puts it in the same category as section 58A(4), being ancillary to the provisions of section 58. It applies to the calculation of the number of controllers, both as regards the merged or merging enterprises and as regards any others serving the relevant audience. On the other hand, it does not allow the provision to have an overriding effect, excluding a consideration of the limited extent (if it be the case) of any control actually exercised or exercisable by a controlling enterprise over another enterprise, in the course of the qualitative assessment which is required on an investigation by the Commission in relation to the particular public interest consideration identified in section 58(2C)(a).
In relation to the concern expressed by the Tribunal about the possibility of an increase in the level of control or influence without a new RMS arising, so that the merger control provisions would not apply (referred to at paragraph [103] above), on the one hand that possibility does not appear to exist in the present case because of the application to Sky of the 20/20 rule (see paragraph [44] above) and on the other hand, in a case in which that possibility does or might exist, the Commission would be entitled to take it into account when considering the sufficiency of the plurality of the controllers as matters stand following the RMS.
It seems to us unsatisfactory that the terms of the Act should have been open to the conflicting interpretations placed on it by the Commission and the Tribunal. If it were thought that to limit the deeming effect to one of number alone does not allow for sufficient protection of the sensitive interest of media plurality, it should not be difficult to amend the legislation accordingly, now that possible difficulties in applying the current legislation have been identified. ”

The court notes that whilst this does not affect the outcome of the present case, it may be of relevance in future. The Court refused BskyB permission to appeal to the Supreme Court on one point as regards the rejection of a possible alternative remedy, but noted that ity remains open to BskyB to apply to the Supreme Court itself for such permission to appeal.

“most knowledge managers lost sight of the fact that the real value is in creating new knowledge, rather than simply “managing” existing knowledge.”

Interesting article on the Harvard Business Review blog by John Hagel III and John Seely Brown (Deloitte) entitled “A Better Way to Manage Knowledge”

They explore the idea of ‘creation spaces’ (and looked at how people work together and pool knowledge in World of Warcraft, for example) and why these and not traditional KM systems are the best way to leverage knowledge.

Their view is summed up by the following quote: “Knowledge management systems desperately try to persuade participants to invest time and effort to contribute existing knowledge with the vague and long-term promise that they themselves might eventually derive value from the contributions of others. In contrast, creation spaces focus on providing immediate value to participants in terms of helping them tackle difficult performance challenges while at the same time reducing the effort required to capture and disseminate the knowledge created.”

An interesting idea, and one which I feel has a lot of merit; however it also seems to be throwing up an either / or option that shouldn’t exist. Surely the true value is created by having both creation spaces and also a method for capturing the output of those spaces as well as any ‘existing knowledge’. I sound like a broken record on this but as I have said many time before, in relation to Law Firms, knowledge is what we sell – we don’t sell law. A case in point , we have examples of agreements/licences that have long been out of date in relation to UK law, but suddenly become gold dust when dealing with emerging market companies starting to go through similar processes that the UK did 20 years ago etc – I’m not convinced a creation space would capture this, whereas the boring old KM system did and has.

Anyway, the article is well worth a read.