Thursday, September 27, 2007

New technologies and old sins

Today CNN has a report on how the use of Google Earth shows that a group of US Navy barracks are shaped like a swastika, which can be used as excuse to analyse a series of issues. The first and more obvious relates to the discussion as to whether today’s standards can be applied to things and actions done in a completely different technological environment and to whether, barring any statute of limitations, people or organizations can be found guilty/liable based on that new standards. Before carrying out the analysis of that issue, it is important to point out that in the case of the barracks, the intention or reckleness were cleary there when built because in order to built such large buildings blueprints were needed and the shape had to be obvious then on paper as it is now from the sky. That allows me to make a huge digression into a myth usually accepted in the US, and that is that after the IIWW most Nazis fled to Argentina, Brazil and Chile. While it is true that Eichmann and Priebke were both found in Argentina, fw years ago it was finally acknowledged (through Nazi War Crimes Disclosure Act and Freedom of Information Act requests) that many, if not most, Nazis went actually to the US and they went there to work for the US government (it would be interesting to see who the architect and others related with the barracks’ design were).
Going back to the new standards applied to old actions, and recognizing that following established principles of criminal law allowing the use of new evidence and law when they benefit the defendant are not in question, the issue becomes thorny in business and academia. For example, this year the an anonymous source showed that the PhD dissertation of the president of Sourthern Illinois University, Glenn Poshard, had been plagiarised by proving that “in one instance, a 68-word passage from another source is used without quotation marks or citation” and, furthermore, “an 80-word section, also missing quotation marks and citation, is taken from a source with only a few minor changes, such as switching a verb from "has been" to "was."” (from the Chronicle of Higher Education, subscription needed). I don’t know Dr. Poshard, I haven’t read the dissertation, I don’t want to read it and I couldn’t care less, but it seems clear that in today’s technological environment, with Google and Turnitin, one could expect that those minor issues to not exist, but to use the same standard for something done in 1984 could imply to misjudge the situation (again, with the easiness that those things could be checked today, one would expect that for a PhD dissertation not such “mistakes” be made, although some are still reasonable, but when the whole search and recording was done manually, the issue was not about academic integrity but about faultless organizational skills, which although needed were not what a PhD implies).
That simple example (the issue is quite more complex because the "plagiarism wars" in SIU started when a teacher was fired for copying a two-page teaching statement) can show how current technologies can invade a form of privacy that normally is not taken into account, which is the breach resulting from the crossing of temporal boundaries, and relates to the fact that many heavy ICT users are not aware of those boundaries and by posting things online they blur the limits not only between offline and online but between past and present…As always, the conclusion is that more education is needed.

Cornell Webcast in Copyright today

Cornell University's Computer Policy and Law Program is hosting two sessions dealing with copyright featuring Wendy Seltzer, a visiting assistant professor at Northeastern University School of Law and a fellow with the Berkman Center for Internet & Society at Harvard Law School. The first session, “Protecting the University From Copyright Bullies,” is staring at 3 p.m. of Cornell's time (EST) (8 pm in England) and will deal with whether colleges can meet their own principles of academic freedom while enforcing current copyright laws, while the second one, “Righting the Copyright Balance,” at 7:30 p.m. (12:30 am of tomorrow in England), will address the issue of changes to existing copyright law and to the entertainment industry’s distribution models.
To whatch them, the link is

Sunday, September 23, 2007

Gikii 2.0 brief impressions

Last year I wrote a detailed report on Gikii "The Beginning", but this year I’ve arrived late to UCL (where Gikii Returns took place last Wednesday organized by Lilian and Andres, with the logistic organization of Ian) and after several presentations due to be taking some exams. I arrived just after the third section when the discussion was focused, again, onto whether regulation or self-regulation are the way forward to protect people’s privacy online. I have made my position clear more than once that regulation is needed not only to protect people’s human rights and consumers’ rights but to create business-friendly environment, but I agree with the final conclusion that both regulation and self-regulation are not conducive to more privacy without a substantive effort in education.
After a nicely prepared lunch, the fourth session was started by Daithi Mac Sithigh, from Trinity College Dublin, and his “I’m in ur tube blocking ur internets: The Politics, Perception and Parody of Network Neutrality Legislation”, a very entertaining presentation about issues surrounding the discussion whether Internet Service Providers and network infrastructure providers can prioritize traffic according to it commercial interest. He was followed by Burkhard Shafer, who presented the paper co-authored by him, Wiebke Abel and Gerald Schaefer entitled “An Officer and a Gentleman: Teaching Autonomous Agents the Laws of Armed Warfare”. There they presented the idea that autonomous agents and humans receiving or giving orders to them should have a clear relation of hierarchy, like in the military, which would prevent inconsistencies and would improve predictability, one of the aims of regulation in general. The session ended with Thomas Otter's “Web 2.0 and Accessibility”. This is a topic in which I have a particular interest and Thomas treated it with his usual knowledge and aplomb. The issue is whether accessing to information is a right and the definition of information, because if it is a right and a YouTube video is information, the whole technology would not be accessible. The session was followed by the one on extreme IP.
This IP part was initiated by Caroline Wilson, from the University of Southampton, who gave a talk on “Trade mark Law in an online future – coming to its senses?” and first went onto a prospective analysis of the development of virtual worlds. The really good and illuminating analysis showed how virtual worlds are evolving into a technology that will modify the way we do things beyond what Internet had done and how that evolution will put a strain in the strange interpretation given to trademark law to the point of needing to be made in a more coherent manner. Jordan Hatcher made a very interesting presentation on copyright over tattoos with the title “Drawing in Permanent Ink: A Look at Copyright Law and Tattoos”. Jordan’s talk dealt with the interesting issue of who owns the result of a tattoo parlour’s work: the customer who owns the skin and order the tattoo? The artist who designed it? The employee that puts the ink into the skin? All of them? He was followed by yours truly, and I made a presentation called “Killing Trolls In Avatars: Virtual Infringement of Real Patents”, where the issue of whether the patent peace clause of Second Life’s terms of service protected those infringing business methods patents within the virtual world and in case that infringement bee found what it the potential liability of the platform owner’s was.
In the last session Richard Jones, from Liverpool John Moores University talked about folk music and its relation with copyright in his “Cultural approbation of the Folk: Hang Down Your Head Tom Dula, or Larry Lessig rides into town”. There he explained why copyright was not an appropriate tool to protect and promote folk music and how and why Creative Commons may not be the answer either. Richard was followed by Ray Corrigan, from the Open University, who gave a very interesting talk “Colmcille and the Battle of the Book: Technology, Law and Access to Knowledge in 6th Century Ireland”. It showed that there is really nothing new under the sun by showing that a 6th century case looked very similar to what happens now and that the issues have not changed much (although it is true that now the legal battles do not end in real battles costing 3,000 lives, but the abuses of IP may well leave far more death now…). The last presentation of the day was given by Simon Deane-Johns, from Zopa, claiming that “We, the Lunatics, Control the Asylum”. Simon explanation dealt with how networks were allowing users, or organized users, to impact the political and policy process, which he related to the rise of Web 2.0.
A final discussion took place and then the souls went on to get a picture with Jeremy Bentham and to the pub bearing his name…

Friday, September 21, 2007

Law, Technology and Society in Latin America Panel at LASA 2007

On Saturday 8th of September, took place in the Fairmont Queen Elizabeth of Montreal the panel on Law, Technology and Society in Latin America as part of the Latin American Studies Association International Congress, where topics of Internet law and IP rights in Latin America were addressed. The panel was opened by Andres Piazza, from Ageia-Densi Argentina, who carried out a very precise and accurate analysis of the relation between data protection and Internet security with emphasis on Argentina law. Andres referred to the fact that during the last decade Data Protection has advanced substantially in Latin America, mainly based on the European Data Protection Directive and the implementation of it made by Spain, and that as in Europe the regulations have had as one of their pillars the security of the databases containing the personal data. Accordingly, he went on saying that it would be impossible to carry out any form of serious protection of personal data without putting into place technical and organizational measures tending to guarantee the security of the personal data and avoiding its alteration, loss, or unauthorized processing or access, as stated in every data protection legislation in question. However, excepting in Argentina the rest of the region is still lacking the creation of application authorities that ensure the proper enforcement of the norms and ended proposing that such regulatory upheaval be given priority for the creation of a culture of data protection across Latin America. He was followed by Carlos Aguirre, from the Universidad Nacional de Cordoba, also from Argentina.
Carlos gave an insightful talk about the relation between law and information technologies with a regional perspective. There he made an analysis of the challenges that technologies bring to the development of certain and coherent law, with emphasis on the external factors affecting regulatory creation. Carrying out a thoughtful economic analysis of the law affecting information technologies in general and electronic commerce in particular, Carlos went on saying that in Latin America there was a general lack of acknowledgement of the need of such multidisciplinary and specialized analysis on the design of public policies, universities’ curricula and legal regulation. He ended proposing that the mentioned analysis be commenced at university level in legal education by the institution of compulsory subjects dealing with law and technology in Latin America. It was then my turn to shift slightly the conversation towards IP rights in the region.
My talk dealt with the issue of intellectual property rights, innovation and development in Latin America. After going rapidly through the evolution of intellectual property rights in the region, from Paris and Berne to TRIPS and from there to TRIPS-Plus, and some examples of the role that some Latin American countries played in the making of those treaties, by action or omission, and also some examples on the implementation of the international agreements south of the Rio Grande. The focus shifted then to the issue of innovation and the relation to development. It is widely acknowledged that innovation and better use of existing resources are keys in countries development, but in order to assess what policies better achieve those goals appropriate means of measurement are needed. One of the important problems is that innovation is usually measured suing the number of patents accepted in one given territory and it is my opinion that in the current patent madness the measure is not only deceiving but interested and dangerous. Those supporting that form of measuring innovation tend to unsurprisingly find that strengthening intellectual property rights foster innovation without realising that “strengthening” in the current environment means more protection for lower quality (or no quality) patents, which defeats the whole reasoning. So, for example, those patents that are clearly invalid if proper standards are followed (standards destroyed by “strengthening” IP rights) are the ones that make people conclude that innovation is on the rise, while certain evidence shows that IP rights may well be stalling innovation. I concluded by asserting that innovation can be linked to IP rights but the level of them should be decided in each country and that serious work should be carried out to establish a reliable method of measuring innovation, a method independent from IP rights.
The panel ended with a presentation by Palmira Granados, from Mexico, who talked about genetic patents and indigenous people with emphasis on Mexican cases. Palmira questioned the current status of the patent system, where more concern is giving to grant incentives to investors than with achieving a balance between the interests of inventors/investors, consumers/society, and indigenous peoples who donate their genetic samples for research purposes. She then went onto evaluating the possible impacts of the current patent system on different areas, specifically when it involves pharmaceutical patents and genetic information collected from indigenous peoples, dealing with the effect that the patent system may have on research and creation of drugs especially tailored for diseases that have particular behaviours in indigenous peoples, specifically in some Mexican indigenous peoples. Finally, she explained the way in which the current patent system may jeopardize religious and cultural beliefs of indigenous peoples who participate in pharmaceutical research. The explanation got necessarily interlinked with human rights, a trend that is becoming more pronounced in many forums.

Friday, September 07, 2007

LASA in Montreal

I am writing from the lobby of the Fairmont Queen Elizabeth in Montreal, Canada, where LASA's International Congress is taking place. It is a multidisciplinary conference (any topic related to Latin America goes) but there are several panels dealing with IP, new media and technology issues. Tomorrow I will be chairing the panel on Law, Technology and Society in Latin America, and I will write then what was about.
Very warm and sunny in Montreal...

Wednesday, September 05, 2007

Philippines inmates’ videos and some questions on global IP rights

During the last few weeks some videos of a group of inmates from the Cebu Provincial Detention and Rehabilitation Centre in Philippines have been “dancing” around the net and today CNN reports on a new one. According to Byron Garcia, who developed the idea, dancing has improved dramatically inmate behaviour and the number of violent episodes has decreased substantially.

As you can observe here, the videos consist of large group of inmates performing choreographies of local and international artists that…what a minute! What about the copyright of those artists? Is the Philippines prison system paying royalties for public performance, derivative work, reproduction, distribution and a long list of things that is doing by using the music, filming the videos and posting them in Internet? Should it pay? Well, it can be argued that under Section 185 of the Philippines Intellectual Property Code "[t]he fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright" and it the fair use exception is evaluated taking into account several things, two of which are “[t]he purpose of the usage of the copyrighted material to be classified as fair use", […]and "[t]he effect(s) the copyrighted materials has or have on the potential market and the value the item has to enriching the item of which the copyrighted material is being classified as fair use”, and if the videos are understood as fulfilling a "similar purpose", it could be said that here the exception would apply due to the public goods purpose, the almost nil negative effect on the copyrighted materials market and the clear enrichment that such a materials enjoy by free marketing linking them to public goods (for those revenge-seeking that think that inmates should be locked away in cells, without entering into the discussion about the merits or morality of such action, is important to note that the inmates in the Cebu prison are still awaiting trial, some for more than five years). However, one needs to think what the situation would be in a different country where the doctrine of fair use is non-existent and where due to the imposition of TRIPS that happened in the 1990s, now been extended through TRIPS-Plus via free trade agreements, the permitted uses are limited to pay and listen in private (even getting to many friends in a party can be infringement by public performance). Should an activity that serves society be subject to the dictates of ever expanding IP rights to satisfy the greed of some record companies? (please, do not start with the “poor author and musician” because I think that it has been properly clarified that with the exception of when asking for stronger IP rights in Congress, the industry does not give a damn about them). Just another small example of why copyright in particular and IP in general need to be kept under a very tight control and not be subject to the desires of a couple of big associations…but the trend seems to be the opposite.

Monday, September 03, 2007

Computer Law conferences in Latin America

Erick has sent the list of forthcoming Computer Law conferences organized by Alfa-Redi (of which I am member of the advisory board). Alfa-Redi’s conferences are a classic and some of them have been pioneers on the topic in Latin America and internationally (and they offer you the possibility of visiting exotic places :)

VII Congreso Andino de Derecho Informatico [Andean Conference of Computer Law]
19-21 de Septiembre, Cali (Colombia)

VII Congreso Iberoamericano Independiente de Nombres de Dominio, Numeros IP e Internet Governance [Iberoamerican Conference on Domain Names, IP Numbers and Internet Governance]
20 de Noviembre, Loja (Ecuador)

V Congreso Latinoamericano de Derecho Informatico [Latin American Conference of Computer Law]
21-23 de Noviembre, Loja (Ecuador)

VII Congreso Mundial de Derecho Informatico/VII World Congress of Computer Law
3-7 de Diciembre, San Juan (Puerto Rico)

Saturday, September 01, 2007

iPhone locking code cracked, and it is legal!

CNN reports that a group of anonymous hackers has cracked the code that locks iPhones into the AT&T wireless system (mobile network in this side of the Atlantic). Following CNN, when one of the hackers, only identified as Liu, was “asked if he thought modifying the iPhone was legal, he said "That's a very good question. I truly believe it is."”, and, although law is not a matter of faith (churches are for that), it seem very very likely that he is right. As reported in November 2006, the US Library of Congress's Copyright Office approved its Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, which stated that

Persons making noninfringing uses of the following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) during the next three years.
And its number 5 said
Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.
The software will be available at iPhone.Sim.Free any time soon, if you can get your hands on an iPhone and not get entangled into the two years contract with AT&T.