New Ibero American Network of Law and New Technologies

More than three months have past since the last posting on this blog and every day that passes it becomes more difficult to re-start to write on it. Not because there are no topics or will to do it but because so many things have happened since the end of July in the e-commerce, IP, IT and related areas that one wouldn’t know where to start from. So, I was waiting for the opportunity, topic that would act as excuse to return to cyberspace and I found it in the creation of the Red Iberoamericana del Derecho y las Nuevas Tecnologias (Ibero American Network for Law and New Technologies) that a friend and colleague, Guillermo Zamora, has started with Marcelo Temperini in Argentina.

The network is presented as a Spanish speaking (at least for now) community of professionals of law and new technologies with the aim of lending a space to be up-to-date, share experiences, ask questions, participate in discussions, Express opinions and, above all, improve relationships. There are three categories of users, or members, which differ in the degree of discount that they receive in the different activities organized by the network, but all having access to most of its features. These features include writing articles, take part in the discussions, recommend legislation or links, organize publications, be part of the network of professionals for the purposes of referrals, invite friends, recommend events and search for information.

It seems that the idea and the platform have been very well thought and the only thing missing is to form part of it…

Too many strange unanswered questions in the McKinnon extradition case

On Friday the English High Court ruled that Gary McKinnon, who fought a long legal battle to avoid being extradited to the U.S. after he was charged with breaking into 97 computers belonging to different branches of the US Government and military in 2001, should face extradition because that represented ''a lawful and proportionate response to his offending.'' Did it?
When one starts to analyse the case there are far too many questions that remain unanswered and make difficult to explain the willingness of English judges to pay such a deference to the US government, which would clearly and legally not do the same if the situation was the other way around. It is important to begin by pointing out that the judiciary is part or a branch of the state that has, as explicit and historic purpose, to serve the interest of the nation (of which its citizens are part). Within that context, even in this world of complex interdependence, the international relations and international agreements of a country have, as ultimate purpose, to give some benefit to a nation and its citizens. Accordingly, to send a country’s citizen to be tried abroad for a crime that has been committed, very likely, both in England and abroad seems very, highly, strangely unusual and it would take from a judge an exercise of imaginative interpretation that would put him very close to disregarding the right to a fair trail, as established by article 6 of the European Convention of Human Rights and incorporated into English law by the Human Rights Act 1998.
There is little doubt about the fact that what McKinnon did in 2001 was and is a crime under both American and English law and, again, it is not easy to explain, regardless the judge and CPS 's spin on it, why a UK national is not tried within UK.
Now, in the unlikely, but possible situation where it is decided that the crime was committed only in the US, can the defendant still be tried in the UK?
Under international law principles, courts can assert jurisdiction over a defendant based on the nexus between the court, the defendant and the crime. Courts can (and normally do) follow the territoriality nexus where the defendant is tried in the forum where the crime was committed. In this particular scenario, deciding where the crime took place would be paramount to know where McKinnon should be tried. Here again, the proper application of statutory and case law to the facts of the case seems to lead to the unequivocal conclusion that a crime has also been committed in the UK. Jurisdiction can also be established based on the nationality nexus, where the defendant is tried within its own country regardless of the place where the offence has been committed. Here again, taking into account that the ultimate purpose of the organization of the state is to act for the benefit of the country and its citizens, courts would normally use this form of asserting jurisdictions where by doing so they understand that a national would not be punished for a crime committed abroad that the home country considers to be serious enough or, on the contrary, the citizen would receive a punishment that results too harsh or disproportionate for that country’s standards. In the case of English law, when dealing with murder and manslaughter, the English courts have jurisdiction over offences committed abroad, if it was committed by a British citizen as established by section 9 of the Offences against the Person Act 1861 and section 3 of the British Nationality Act 1948, and confirmed in R v Cheong (2006) AER (D) 385. There have been also plenty of cases recently where the British Government has requested a British national to be sent to England to be tried for crimes committed abroad but that would have a disproportionate sentence in other country. In the case of McKinnon, even in the unlikely case that it is understood that his crime was committed only in the US, English courts have the legal basis to assert jurisdiction over him and try him here, and taking into account the ultimate purpose of the state, already mentioned before, they must do so.
And all of that without entering into the many other questions that the case arises…
Why, taking into account that the article 8 of the US-UK extradition treaty is so imbalanced in favour of the US and also taking into account the known and acknowledged lack of respect for international law and due process to foreigners and in some cases American citizen (has the judge heard about Guantanamo, the Salgado case, Padilla and hundred of others), the judge still thinks that the response is proportionate? Last week a paedophile that raped a boy was sentenced to 4 years of prison here in England while McKinnon could get a sentence several times longer in the US for entering into those computers looking for information about UFOs, is that proportional? Why the press keeps referring to the hacker “breaking” into the American sites when the hacker actually “entered” into them? (the difference is fundamental because in the non-virtual space it is radically different to be accused of trespass than to be accused of burglary and in the present case McKinnon entered into sites that had the password left blank so he actually did not "break" into those computers). Why the judge is so keen to extradite a British citizen with such a dubious legal basis when higher English courts have refused to extradite foreigners that committed crimes much more serious? In sum, in most countries (developed and not) a ruling that leaves so many strangely unanswered questions would merit an investigation into the judge’s conduct…

Ruling against Google and Yahoo in Argentina

A district court in Argentina has ruled that Google and Yahoo have to pay A$ 50,000 in damages for indexing pages where the name of Virginha Da Cunha and her image have been linked to sexual and erotic content. The claimant, an actress, singer and composer (not being in Argentina never heard about her before), sued the search engines alleging the illegal use of her image and claiming A$ 50,000 in material and “moral” damages from each of the named search engine companies.

The judge Virginia Simari, has understood that the search engines are also Internet sites and that their owners decide what contents are included on them. She also considered that “the activities of the defendants facilitate the access to sites that otherwise would be of difficult access and that, in addition, such a facilitation constitutes de node of one of their activities”. “Therefore, it is possible to affirm that the search engines by contributing to the access to the websites are in the best technical conditions to prevent the damages, and it is that profile of the search engines that generates their facilitating activity liability”.

The judge also considered that the fact that the claimant’s professional activity requires her public exhibition in different manners does not legitimate any kind of use of Da Cunha’s image by third parties. She went on explaining that “the standard to measure the damage caused to somebody’s image is conformed by the context where the images in question are presented. In the present case the existence of images of the claimant on websites of sexual, erotic, pornographic content does not leave place to doubt about the impact on the claimant’s image”.

Needless to say that it is expected that both Google and Yahoo will appeal the ruling, but what is peculiar is the way that the judge links seamlessly the damage caused by the offending sites with the search engines that allow people to find them. It is similar to finding the maker of telephotos or zooms liable for the breach of privacy that a paparazzi may commit, or car maker liable for robberies committed by car (or the council that has responsibility for the street where the car is driven to the robbery). But it shows a bigger problem that is starting to arise in jurisdictions like the Argentine, that have a sophisticated legal culture and system and also a fairly litigious nature but judges with no understanding of Internet and new technologies functioning or their peculiar legal principles. Some time ago we discussed the string of domain name disputes judicial decisions where Argentine judges found always in favour of trademark owners when the other party had also a legitimate right to the domain name (as, for example, a family name), and here we have the same situation again. It probably relates to the fact that to be a judge in Argentina you need to be a lawyer and to be a lawyer in Argentina you don’t need to know any thing about ICT law nor you can, as all but one universities don’t have any class on the topic…

Blackboard software patent litigation, round...whatever

The United States Court of Appeals for the Federal Circuits ruled on Monday that part of Blackboard’s U.S. Patent No. 6,988,138 (“the ’138 patent”), which claims an Internet-based educational support system and related methods, is invalid, and reversed the lower court decision that imposed damages of U$S 3,300,000 to Desire2Learn for infringing that patent. The later company has always argued that Blackboard course management patents are overly broad and were issued improperly, which, as noted by the Court, would run against the principles established in Atmel Corp. v. Information Storage Devices, Inc., 198 F.3d 1374, 1380 (Fed. Cir. 1999) (“consideration of the understanding of one skilled in the art in no way relieves the patentee of adequately disclosing sufficient structure in the specification”). The ruling still leaves some of Blackboard’s claims standing, which, in addition to the already announced appeal, promises to lead to yet more litigation on the matter…

Quis custodiet ipsos custodes? (or the misadventures of proper parenting in an online world)

Newspapers carry the news that yet another girl has been abducted after online grooming and it seems that we could have a news service devoted to things that children have been doing (and they shouldn’t) online and/or what some depraved people have done (or tried to do) to children by using Internet. Probably more than half of the time/space of that news service would be filled with analysis about how dangerous new technologies in general and Internet in particular are for children…and they would be wrong. Information technologies and Internet have the potential to allow children to reach places that we couldn’t dream about when having the same age or allow them to interact with people across the globe and learn about other cultures in ways that no book or library would, but in the same way that children need to be taught how to read, they need to be taught about how to use ICT…and most parents neglect that.
A recent survey suggests that only one in ten parents talk about Internet safety with their kids and there are some cases where parents get quite amused when their kids wander alone online and get into things that they shouldn’t: take as example the 3 years old kid that bought a real digger online when the parents were sleeping…the mother reaction was “It's been a lot of fun”…was it? Or it was a monumental example of irresponsibility from the parents? Would the mother have the same reaction if instead of buying a digger the kid put herself in contact with another “online kid” that then turned out to be a grown up paedophile (like the recent case in Spain)?
It has been repeated hundreds of times but it doesn’t hurt to do it again; Internet is not the problem but parents that use it as an easy way to keep children entertained instead of guiding them through the intricacies of cyberspace, and there is no regulation that can solve that problem. There is, however, an argument that governments and international organizations should devote more resources to the education and information of parents instead of wasting resources in twisting and violating long established legal principles to maintain the profits of industries with obsolete business models. Governments could, for example, mandate the inclusion in the computer manuals and in the ISP connection packs some form of booklet teaching parents the basics of online safety and that would certaintly be better received than forcing ISPs to control users downloading patterns...

A ruling of U$S174,545.45 per song and a result that the RIAA should cry for

In Capitol v Jammie Thomas-Rasset the jury just handed down a sentence of U$S1,920,000 against the defendant for the wilful copyright infringement of 24 songs, which they found Mrs Thomas-Rasset made available for others to download through Kazaa. The claimant (plaintiff in the case because is in the US), Capitol Records, alleged that the defendant made available to others thousands of songs but it decided to concentrate on 24 songs for which it had more evidence. At the end, it seems that the claimants specialists could only link 11 songs to the defendant’s computer, so the actual tag is not U$S80,000 per song as the jury decided but U$S174,545.45 per song (for the other 13 songs even the claimant’s specialists recognized that they couldn’t probe that they had been actually shared). For the remaining 11 songs, there are suggestions that all the evidence was circumstantial, although a lot of it.
The legal issues that the ruling raises are so many and so contentious that several papers can be written out of it (which for sure they will), but there are a couple that stand out as especially relevant. The first is the clarification that the music industry argument that “making available for download” is copyright infringement in the US is wrong. The case had to be retried because in the original case the judge had instructed the jury that making available for downloading was copyright infringement, which clearly contradicted the letter and spirit of the law. In the new trial, there was some evidence, albeit circumstantial, that somebody had downloaded 11 songs from the defendant’s computer, making her liable for copyright infringement by distributing the protected content (one of the exclusive acts reserved for the copyright holder). The other issue is the amount of damages.
The “loss” of the music industry would be in the range of 70 cents per song, which is what it would get of the 99 cents paid for legally downloading each of the songs in questions, so getting an award of U$S174,545.45 per song seems a “little” excessive and, even more, unconstitutionally excessive. In State Farm Mutual Automobile Insurance Co. v. Campbell (2003), 538 U.S. 408, 123 S. Ct. 1513, the U.S. Supreme Court decided that a punitive damage award of $145 million when compensatory damages were $1 million were excessive and violated the due process clause of the Fourteenth Amendment. According to the ruling, compensatory damages have as purpose to compensate a plaintiff for a loss, while punitive damages act as a deterrence and retribution and serve the same purpose as criminal penalties. Civil defendants are not afforded constitutional protections given to criminal defendants, therefore, there is a danger of deprivation of property without due process of law. The Supreme Court used BMW of North America, Inc. v. Gore, where it was established that three factors have to be considered in assessing punitive damages:

1) the degree of reprehensibility of misconduct;
2) the disparity between the actual or potential harm and the punitive damage award; and
3) the difference between punitive damages awarded by the jury and the civil
penalties authorized or imposed in comparative cases.

Futhermore, in order to determine the reprehensibility of misconduct, the most important factors must be:

1) the harm is physical rather than economic;
2) the conduct exhibits indifference or reckless disregard to the health or safety of others;
3) the conduct involves repeated actions rather than an isolated event; and
4) the harm results from intentional malice, trickery or deceit, not just an accident.

Needles to say that the conduct of the defendant Jammie Thomas-Rasset does not get even close to any of the necessary factors needed to justify such a disproportion between the actual loss and the punitive damages.
The RIAA should better put the champagne back in the fridge because when they think that they have won, they actually have handed on a silver plate to those in favour of digital freedom the opportunity to clearly establish that making available for download is not copyright infringement in the US (as already decided) and that their damages cannot not be as outrageous as they currently are.

Harry Potter yet again in court (or trying to get millions magically)

The Australian Daily Telegraph brings the news that the estate of Adrian Jacobs is suing JK Rowling’s publisher, Bloomsbury, for copyright infringement and claiming £500 million. The suit has its origin on the allegation that Harry Potter and the Goblet of Fire contains the same concepts presented in Jacobs’ Willy the Wizard, a 36 page book of which 1,000 copies were made.

According to the newspaper, the claimants argue that

Both Willy and Harry are required to work out the exact nature of the main task of the contest which they both achieve in a bathroom assisted by clues from helpers, in order to discover how to rescue human hostages imprisoned by a community of half-human, half-animal fantasy creatures, the merpeople in Harry Potter, Mr Markson said in a statement to The Daily Telegraph.

"Many other similarities are described in the Claim filed by the Estate, which include the idea of wizards travelling on trains, famously referred to in Harry Potter as the Hogwarts Express.

"It is alleged that all of these are concepts first created by Adrian Jacobs in Willy the Wizard, some 10 years before JK Rowling first published any of the Harry Potter novels and 13 years before Goblet of Fire was published.

"It is also alleged that, at the time in trying to get his work published, Mr Jacobs sought the services of a literary agent, Christopher Little, who also later became Ms Rowlings literary agent in the Harry Potter series.

Leaving apart the issue that Jacobs’ book was in the hands of whom then became JK Rowlings agent, it seems that the whole lawsuit is based on some ideas being similar and there is where things are difficult to understand. The Copyright, Designs and Patents Act 1988 in its section 16 (3) makes clear that, subject to some exceptions, it is not necessary to copy the whole work, but it has been clarified in Warwick Film Productions Ltd v Eisinger (1969) that a substantial part of it should be reproduced in order to have infringement. Here it is important to remember that substantial refers to the quality more than the quantity of the copy, as explained by Lord Reid in Ladbroke (Football) Ltd v William Hill (Football) Ltd (1964). Furthermore, substantiability refers to being substantial in the copied work and not in the copying one, as decided in Designers Guild Ltd v Russell Williams (Textiles) Ltd (1998) reaffirmed by the House of Lords in 2001(it would not be a defence to say that Willy the Wizard is one tenth of the Goblet of Fire, because the suit does not claim that JK Rowling is not creative, it claims that Jacobs’ work has been copied). So, it first has to be established how much of the Jacobs’ work is constituted by the parts referred to above.

The other issue relevant to copyright infringement is to address whether the protected work has been reproduced or not and to establish that we need to look at how similar both works are and then if the similarity has been brought by the act of copying. The previous discussion makes clear that the infringing work needs not be identical, but it can be argued that courts have made a huge disfavour to the certainty and clarity of this issue by blurring too much the distinction between expression and idea, distinction that is central to the concept of copyright. The case Ludlow Music Inc v Robbie Williams (2001) is a prime example of courts making an appalling mess of the law of copyright by finding infringement due to one song taking its central idea from other (yes, there is not mistake, the court did refer to copying the idea as infringement!). Generally speaking, the infringing work should reproduce the original in some form, although this does not imply exact word-by-word copying. CDPA 1988 s16 (3)(a) makes clear that reproduction does not need to be exact, which has been interpreted as covering the way of arranging ideas too, in Harman Pictures NV v Osborne (1967). Finally, it is the case Ravenscroft v Herbert (1980) the one that may give the claimants some hope of success because it establishes that an author cannot use the language and arrangement of facts of a previous work (artificially protecting ideas without saying so).

Fortunately, the Da Vinci Code case, Baigent v Random House Group Ltd (2007) put some rationality in the common law arena and established that facts, themes and ideas were open to anyone to use (although the claimants got away with using the courts to make their previously unknown book a best-seller).

So, is this a genuine case or a way to try (yet again) to use courts to change the fact that a writer has written a book that few people want to buy and other has written a different book with some similarities that has sold millions of copies around the globe? The situation is not helped by the involvement of a publicist promoting the action and making a point that Mr Jacobs died penniless and JK Rowling is a billionaire. The law of copyright shouldn’t be concerned with the fact that an ignotus author died poor due to losing everything in the stock market (unrelated to the book or the current action) and it shouldn’t be affected by the sympathy that a publicist is trying to attract to his (?) cause (by the way, in a system with no juries, shouldn’t you get a good lawyers instead of a publicist? or the whole lawsuit is just to make money by becoming a “celebrity”?). But there is quite strong argument that courts are to blame for this type of lawsuits.

In England the characteristics of common law give some flexibility to the law but they also mean that many cases are decided based on the personal preferences of the judges (what is always strongly denied by them or common law analysts), who many times use their rulings to relax or restrict principles that are quite well defined in other jurisdictions., like the distinction between expression and idea. And on the policy side, why a court should protect the way that facts, information and ideas are presented by someone, not the way they are expressed, when other person uses the same way but expresses them in a form that is preferred by the public? Even more, courts in this side of the Atlantic seem to be lenient to claimants that use the courts to change their lack of success in the market even when the claim can be understood as frivolous and without merit. Across the pond, however, courts have been less reluctant to deal nicely with this type of lawsuits and in Scholastic, Inc. v. Stouffer 221 F. Supp. 2d 425 (S.D.N.Y. 2002) the judge fined Ms Stouffer U$S50,000 for her “pattern of intentional bad faith conduct” and in Canada a judge ordered Kim Baryluk, the song writer behind the almost unknown The Wyrd Sisters band that sued Waner Bros for CAD40,000 for…no reason, to pay the CAD140,000 legal costs of the defendant.

Isn’t it time that courts make clear in England that if the public does not like your creation courts are not there to give you a hand paying your bills? And also, although it is true that due to the robes and wigs English courts look like Hogwarts, it is also time that people understand that they are not a place where lack of talent can be magically transformed into millions...

Is The Times using courts to curtail potential competition?

Today The Times has announced proudly that a “Landmark ruling lifts lid on police blogger”, referring to a case that The Times won against the author of the Nightjack blog (who tried to get an injunction preventing The Times from revealing his name). But is it something to be really proud of? Or, like the music industry using courts to stop the unstoppable and try to save a failed business model, The Times just found an easy case to undermine the activities of some bloggers and went for the part (their anonymity) that may discourage many from revealing some news? Isn’t it the case that the ruling in question will come to hunt newspapers in general and The Times in particular when in the future they try to keep the anonymity of a source that got the information breaking some rule?

The arguments of The Times could be summarized in saying that the name of the blogger did not deserve protection because he was a policeman that was breaking police rules and, therefore, there was public interest in knowing the name of such a rule-breaking public servant. This is a very strange and dangerous proposition to be put forward by a newspaper; haven’t they heard about the Pentagon Papers? Do they think that those that gave the papers to the New York Times and the Washington Post had the authorization to do that? Or probably when The Times published an article on June 29, 1972, referring to and explaining the contents of the Papers did not matter that they had been obtained by breaking the rules (actually a quite serious law in the US)? One of The Times analysts tries to make a link between the ruling and freedom of information, clearly ignoring the quite precise meaning that freedom of information has in that setting. class="MsoNormal">Finally, The Times also engages in some silly form of character assassination by trying to show how bad the activities of the blogger were, but nothing helps to change the sensation that, legalities apart (the disputable ruling of the judge deserves a full paper on it), something is quite wrong on the ethical side of The Times.

Interestingly enough, one of the “analyses” of the ruling that appears on The Times ends by trying to preempt the obvious saying that “ironically [...] there will be plenty of bloggers who […] ‘will argue it has a chilling effect that will deter bloggers from putting information out there’”, quoting an, of course, anonymous lawyer…

An Argentine copyright case with political implications and little more

After more than a month away from this version of cyberspace, some strange IP news brings me back to drink legal mate (and leave my marking for a while).
A couple of days ago an Argentine judge ordered the ruling party, the Peronism that uses the name Partido Justicialista (well, a coalition called Frente para la Victoria –Front for Victory- purporting to be the party), to stop using the most popular version of the party’s anthem due to a copyright infringement lawsuit brought by the state of Hugo Del Carril, the author and interpreter of the most famous version of the song and one of the undisputed notables of the Peronist Party. Argentina has a quite developed copyright law and it is member of the Berne Convention, the Rome Convention and WTO’s TRIPS, all of which establish that authors and performers have exclusive rights to reproduction, distribution to the public and authorization of public performance of their work. These rights of interpreters on recordings can be found in art 56 of the Law Number 11723 (as amended) of Argentina. Until here there is no much of a news more than the political issue created by the son of Hugo Del Carril by denying the use of the song to the group that is currently in the Argentine government because he alleges they are not really peronists, which according to him (and to the judge that concurred) would satisfy the reasons for denial of authorization instituted in the law. However, although not surprising for those versed in Argentine politics and the way that “rule of law” is interpreted there, things started to get strange when the country’s Minister of Justice, Anibal Fernandez, said that “they” would keep using the song as much as they wanted, which was later put into practice in a political meeting of the Frente para la Victoria that was attended by the husband of the current president and candidate to the House of Representatives of the Argentine Congress, Nestor Krichner…beyond the political issue represented by the fact that the Minister of Justice of a country is saying that will ignore a judicial ruling and that the judicial ruling is directed to a political party not to the government (it seems that in some point those in the government of Argentina cannot see the difference) there are several legal issues that deserve a more detailed analysis.
That the state of the singer has the right to not authorize the public performance of the song is beyond question, as established by relevant law and explained by the judge that expressly ruled against continuing its use, making the use of it by the Frente por la Victoria both copyright infringement and contempt to court. Following Argentine obligations under international law, such copyright infringement incurs both civil liability and criminal responsibility, as per articles 71, 72 and, especially, 73 of the mentioned Law 11723 of the Legal Regime of Intellectual Property of Argentina. The civil liability would be incurred by the meeting organizers, the Frente para la Victoria and the one that actually played the song, and the criminal responsibility would lie with the person that played the song because in Argentina criminal responsibility must lie with a physical person. But the problem does not stop there because art 209 of the Argentine Criminal Code makes a crime to “incite to commit a crime” and art 213 of the same code criminalizes the act of being apologetic of the commission of a crime or a criminal, making the Minister’s declaration a clear crime. Furthermore, art 248 of the Argentine Criminal Code creates the crime of not fulfilling the duties of a public officer, which includes issuing orders contrary to the law, as the one in question. Accordingly, when Anibal Fernandez said that “they” would keep using the song in dispute and, therefore, disobeyed a court order, he committed an array of crimes within and outside of the realm of intellectual property law.
Finally, it is an accepted principle of international law that unilateral declaration of public officials can, in some particular circumstances, be binding for countries and affect their status within certain international legal regimes, as established in the case of Denmark v Norway, PICJ (1933)..is the Minister of Justice of Argentina saying that authors and interpreters rights can be ignored and therefore denouncing several international conventions, the TRIPS agreement and Argentina’s obligations under the WTO system?…

Ooops, they did it again (or something smells bad in Sweden)

The last few days the wires have been busy transmitting information and analysis about the recent Swedish court case that convicted Frederik Neij, Gottfrid Svartholm Warg, Carl Lundstrom and Peter Sunde, who run Pirate Bay, to one year in jail for the crime of copyright infringement. However, today the same case has come to the spotlight for a different reason, showing that, once again, the moral high grounds that the music industry is claiming is actually so low that throws into doubt the reputation of a decent legal system as the Swedish.
Today it has been made public that the judge that decided the case against the Pirate Bay members is member of several organizations that either have as main goal to strengthen copyright laws and their enforcement or have as co-members some of the lawyers that represented the music industry in the case…the judge seems to have the peculiar view that belonging to organizations as the Swedish Association of Copyright alongside with Henrik Pontén, Peter Danowsky and Monique Wadsted, who represented rights holders in the Pirate Bay trial, or the Swedish Association for Industrial Property, which pushes for a stronger copyright and has the judge as member of the board, don’t imply that he is biased and that the result of the trial should stand…however, it is clear that the words that John Kennedy, chairman of the International Federation of the Phonographic Industry (IFPI), used to describe the outcome of the Swedish case should be supported because the current case "will send out a message, even to kids, that what they thought was OK, isn't" as even in decent Sweden justice seems to be co-opted and tarnished by the entertainment industry…

On pirates, infringers and the choice of words

Much ink and bytes have been devoted to the issue of the ruling against the Scandinavian site Pirate Bay and it could be argued that there is no much point of analyse it again here, for extemporaneous and for repetitive. However, it is a good opportunity to reflect on the use, or better said misuse, of the word pirate within the context of IP law and the clear intentionality that such use encompasses. It is also a good example of how many times (far too many) those trying to oppose a state of affairs, although well intentioned, reinforce some of the negative aspects of what they are trying to resist. The use of the word “pirate” in Pirate Bay clearly exemplifies this situation, because acknowledges, confirms and legitimizes the use of a word in a context that should have never been used in the first place. But those that promote the hypertrophy of intellectual property rights have not chosen it lightly or naively.
Under international law piracy can be said to correspond to the original reference to some form of universal jurisdiction, for which it was a crime that violated jus cogens, a set of principles so strong that are considered to be above any of the sources of law enumerated in art 38 of the Statute of the International Court of Justice. Pirates were considered to be hostis humani generis, o enemies of the entire humanity. Furthermore, piracy constituted one of the few exceptions to the principle of extra territorium jus dicenti impune non paretur impune, allowing anyone to prosecute pirates even in the high seas… So, faced wit the reality that their business models were obsolete and they couldn’t or they didn’t want to adapt to the new realities of sharing more freely the creations of the mind, the owners of industries that base their competitiveness on some form of distortive protection granted by the state discovered that one of the forms of getting governments on their side was to label those infringing those grants, now converted into rights, as pirates converting them automatically in the scum of the earth... But reality always bites…

Under the current circumstances, where the real piracy has made a comeback and industries and countries are facing real losses, both in economic resources and human lives (and not some fictional numbers that change everyday according to the audience), the continuation of the use of the word pirate to refer to copyright infringement is simply preposterous. It is time to recognize that copyright infringers are copyright infringers and that calling them pirates should amount to some form of defamation…

A couple of dives in Japan and the potential legal implications of diving with computers

Yesterday was a fine day in Wakayama prefecture in Japan, and a day that I enjoyed visiting the other 70% of the planet, the sea. I went to Kushimoto from Nagoya to have a couple of dives with the very nice and friendly people of Coral Queen. The day started with a dive in Soushima 2 where, following the plan, we first went down to the first plateau at 12 metres, then to the second step at 21 to finally reach the bottom at 30 metres of depth. The visibility was fine and the temperature was at a bearable 18 degrees (Celsius). Once in the bottom a Moray Eel greeted us with some menacing behaviour and we keep swimming among some Narrow banded batfish, balloon porcupine fish, surgeon fish, different types of tangs and a very long list of species that would take several paragraphs to write down here, for the rest of the around 35 minutes, when we went up to 5 metres for a 5 minutes safety stop. The first dive was nice, relaxed and pleasant. We went back to the harbour and to the coast for lunch and after a short nap under the sun we went back to the sea for a second dive. That time it was at Sumisaki and it was going to be a shallower dive.

We start going down following the anchor’s rope and when we reached 20 metres, almost at the bottom, we were welcomed by a magnificent red lion fish: probably the view of one of those justifies taking up scuba diving. The rest of the dive was as eventful and abundant of beautiful marine life as the beginning of it: to the left of the anchor there was this big pool of stripeys, which we swam past only to be greeted by a group of Moorish idols. We kept going around the reef to meet a big group of Stripped eel catfish, some Cherry bass, many types of butterflyfish, Emperor angelfish, the occasional Redlipped Morwong, loads of Heavenly damselfish, few Scarbreast Tuskfish and many many more, without forgetting the Anemone fishes trying to hide within a gigantic anemone.

One would think that being several metres under the sea people are supposed and allowed to forget everything, especially lawyers and the law, but unfortunately the phrase “only two things are certain in life, death and taxes” is not quite correct; it should be that one is only certain about death and law (technically one has to pay taxes because the law says so) and being underwater is not the exception. Following standard procedure, as described, the first dive was deeper than the second, but how deep really was could present some issues. In the first dive the bottom was supposed to be at 30 metres but my diving computer said that I was at 30.9 metres, which may imply some legal issues that many could overlook. One you are taking your first scuba diving course (in the PADI system that course allows you to go down to 18 metres), you are told that you are qualified for the specified depth but that it depends on you because there is no police under water, but, is that true? Or putting it in its correct terms, is that still true? Hasn’t the use of computers introduced new elements were the depth for which you are qualified is liable of being monitored and, thus, enforceable? Since I am writing this on my way back from Kushimoto and not from a recompression chamber, it has not occurred, but lets imagine that I had a diving accident during my first dive, will my situation be different due to using a diving computer?

Dive accidents are very uncommon but when occur they are very dangerous, many times requiring expensive treatment in a recompression chamber. Furthermore, if you are diving far from a chamber you may need to be transported in a low-flying helicopter (for the full explanation you will have to wait until I finish the full paper, but trust me that after diving you cannot take planes or go to heights), which would substantially add to the expense. Accordingly, it is wise (in some places compulsory) to dive with proper insurance, which would cover the expenses in case of an accident if you are diving within what you are authorized to do…and there is where computers enter into the game.

Until the introduction of diving computers there was no real way to tell how deep you had dived, since the gauges showed (they still show) the depth you were at given time and changed automatically whenever you went up or down (there is a gauge that shows the deepest point, but is very easy to reset making it non-permanent). However, diving computers, even the most basics, tell you the deepest point you have reached and the more advanced ones tell a very precise story of the depth you were in each point of the dive. So, if we imagine a diving insurance that covers you only up to the depth you are certified to dive, today my insurance could try to argue that I haven’t been covered in my first dive because my certification allows me to dive up to 30 metres (which is very deep anyway).

One of the problems with that is that, regardless how modern a diving computer is (mine is very modern) they are not precise to the extreme (the computer of Shingo, who was diving with me, said that we went down to 30 metres only), which would create a problem of reliability and, if the expense is really onerous, potential litigation over which computer is the one to follow. Furthermore, although we are talking about civil liability and the standard of proof would be as a matter of probability, it could be argued that in the case of an accident the computer could not be used as reliable evidence unless it is secured in the moment that the victim-diver is brought to the surface or rescued from the surface, which is very unlikely to happen.

In the case of not using one of the new more sophisticated computers other problem arise. Sometimes exceeding the depth for which one is certified could be the consequence of the accident or the accident itself, like when one is caught in a strong downward current from which cannot escape. Although in theory one would be able to compensate the problems that such situation may cause, the lack of remaining air may result in having to surface without taking those corrective measures, which would imply an urgent need of the expensive treatment described before. With one of the more modern computer, using the feature that shows the dive moment by moment, a diver would be able to show that it was a current or something else what pushed him or her to the unauthorized depths, but one of the more basic computers would only show the maxim depth, which could be used by the insurance to deny the claim.

Another hypothetical situation may arise if the diver surfaces too quickly and without making a safety stop. In a no-computer dive the only thing that we would know is that we have a diver victim of some form of, for example, decompression illness, and all the procedures will be follow to ensure his/her recovery, which normally would be covered by the relevant insurance, but if the same diver is using a computer the computer log would show the rate of ascent, which could imply negligence by the diver, making a potential claim more difficult to make.

The situations are not as straightforward as presented and the legal answer would depend on the law of different jurisdiction and the terms of particular insurances and the fact is that using computers for scuba diving makes the dives safer, more enjoyable and predictable, but the above simple (and oversimplified) examples represent yet another instance where the lack of adaptation of the law to a novel situation generated by computers could create uncertainty and hamper the adoption of a useful technology.

Back to the Future (almost) or arriving into Japan after some years in the West

Yesterday I arrived into my beloved Japan after almost three years not visiting the land of the Chrysanthemum and the first few hours here reminded me how far the country is in some technological, organizational and social issues from the Western world.

The story should start with landing in Chubu International Airport, located on a purpose-man-made island and an example of efficiency and cleanliness. Both the immigration and customs were very quick (overall 5 minutes) and the staff was more than very polite. Those looking for the negative side of the situation would point out to that one of the possible reasons for the speed in the immigration procedures lays on the fact that there were not many passengers because not many international airlines operate in the airport and that the airport is one of the examples of Japanese government spending in the unnecessary (the also very modern Kansai International Airport is quite close and Narita, in Tokyo, becomes also not too-far due to the impressively good train system), but it could be argued that the spending was necessary to starve-out the recession few years ago, that it is investment in infrastructure more than spending and, finally, that the speed also rests on having all the immigration boots staffed regardless of the number of people arriving (something that they could copy in England when at times there are several flights arriving and only a couple of immigration officials on duty). When it was time to collect the luggage it was very easy to spot the non-Japanese, even those that had oriental facial features, because there was (there always is) an area around the luggage belt with a different colour (sometimes is just bordered by a line) and only non-Japanese would wait for their luggage inside that area. After living in Japan so many years that situation still bothers me in every non-Japanese airport I go: is it too difficult to understand that your luggage will not arrive earlier just because you stick very close to the belt and that, if everyone stays about a meter from it becomes easier to spot and retrieve your bags? Interesting enough, there is no sign saying to wait outside the area but, as with many other things in Japan, the social norm is stronger than any formal regulation.

After taking that luggage and going through the already mentioned polite-mannered staffed customs, I got in the also spotless lobby where you have all the usual signs guiding you to all the possible means of transportation. Followed the sings to the train station and once there I went to the ticket office, where the “almost” of the title enters into play. I ordered a ticket to the station where I had to change to the subway (you cannot buy one all the way because they are different companies) and when trying to pay with the credit card I got a big surprise when I was told that no credit cards were accepted and that I needed to get cash (I had seven different currencies but no Yen in my wallet). I went to an ATM to withdraw cash and the ATMs did not accept foreign debit or credit cards (I knew that that was the case normally but I imagined that in the most modern international airport things would be a little more international). I tried with my Japanese credit cards but the ATMs were not of the issuing banks, which meant that they didn’t work either. Then I understood why the man in the ticket office asked me to go to the currency exchange counter (nothing else would work) and I did so, where I change some of the currency I had into Yen.

I finally got my ticket for the following train (originally I was going to get the 13:07 and I took the 13:17) and in less than one minute I was inside of the reserved-seat area of a spotless, nice and bright train. Exactly at 13:17 the train departed and, after crossing into land from the artificial island, started rolling through the usual Japanese suburban landscape of modern and old houses, apartment buildings (here called “mansions”) and the occasional rice field, but all with the unique added beauty of countless sakura in bloom (sakura is the Japanese cherry tree). The train ride was comfortable and quiet, because train didn’t make any noise when running and because people inside the carriage respected the sign saying to not use your mobile phone inside it (both the signs and the announcements ask you to refrain from using your phone and to put it on silent mode). On the mobile phone side of things, I was amazed to see that my Blackberry worked here (usually foreign phones don’t work in Japan) and not very surprised to see that it had full 3G signal everywhere at every time (it is true that England has probably one of the worst mobile networks that exist but I still get quite annoyed by the fact that, as example, is very unusual for me to have 3G in my phone in most parts of England, including London, and in my house in London most of the time I don’t have any signal at all).

Several stops later I transfer to the also (you imagined) spotless subway, where many things, yet again, reminded me all what I like about Japan. The photos shows the inside of the carriage, people wearing masks (either because they have a cold or because they are affected by the trees’ pollen, which is in the highest point this week) and the velvet style covered seats. There was mobile signal in the subway but nobody was talking on the phone. Many people (actually a lot) were using their phones for texting, but not a single sound was coming from their phones. Then in one station a rather old man run to get into the subway when the door was closing and the driver opened the door again to let the person in but once the train started moving the speakers brought the voice of the driver saying -“to the person that rushed into the train, please don’t do that again”-, to which the man “replied” by bowing (probably apologising to the driver or to us fellow passengers). One station later the door opened and a member of the subway’s staff put a ramp and helped a man on a wheel chair to get into the train. The man on the wheel chair did not move during the trip and few stations later when the door opened there was another staff waiting with a ramp to help the man out of the train.

I made it to my final station where I got off, went back to the surface and walked the few blocks leading to my house. There (here), after few greetings and checking a couple of things using the old 100M Internet connection I have at home, I collapsed in bed to wake up today at 3 am (when I am writing this).

I assume that my jetlag will keep waking me up around these absurd times, so in next days I plan to engage in the regulatory issues causing or arising from what I tried to describe above…

Regulation under pressure and regulating by the press

These days I have been receiving some interesting emails from several places, some of them making good jokes on almost everything and others informing about changes of policy of sites where I buy things. One of them related to a change of policy in Ebay.co.uk and it exemplified the need for evidence-based policy making, the imperative necessity of having regulation enacted by those elected to do so and not for companies acting out of hysteria (which could lead to the need of a stable legal framework so companies don’t hyper-react in fear of regulation) and the importance of having a transparent policy making process. The issue relates to the almost blanket ban on the sale of knives on eBay's UK site…but, shouldn’t it be good news?

The first issue relates to whether such a ban was needed and, if needed, whether was implemented in the correct manner. The “evidence” supporting eBay’s measure came out of a BBC programme that showed that you could buy knives clearly fitting the classifications found in the Prevention of Crime Act 1953, the Restriction of Offensive Weapons Act 1959, the Criminal Justice Act 1988 (Offensive Weapons) Order 1988, Knives Act 1997 and the Criminal Justice Act 1988 (Offensive Weapons) Order 2002 in the UK’s site from US sellers (the examples were so outrageous that even “stealth knives” were on sale in eBay). The solution that eBay found was quite simple: “[f]rom 10th March 2009, all knives and swords except cutlery will be banned from sale on eBay.co.uk and eBay.ie”…good news! Is it? Let’s go a little further than the headlines sought by the BBC and let’s see what the ban actually means…under the new rules the knife I use for scuba diving (you can see it above) will be banned even being blunt and not easily usable as offensive weapon, but the kitchen knives used to kill the Harry Potter’s actor would be allowed and because the killer was 22 years old he also would be allowed to buy them in eBay…is that the purpose of the ban?

The second bit takes us to the classic analysis that Larry Lessig popularized in his Code. There are different ways of regulating behavior (through the market, social norms, technology and law) and when law gives up its legitimate place other forms take it. However, what we have with eBay’s policy is a company making regulation via “law” (not strictly but it is a rule specifically “enacted” to modify, prohibit, certain behavior), which would imply a private company telling people that they cannot do what the law authorizes them to do (buying certain non-kitchen knives is legal in UK). One could easily argue that as providers of a venue, they can choose to allow people to do whatever they want unless is against the law, and it would be clearly correct, but that would be missing the point, because the fact is that a profit seeking company enacts regulations that go against its rent-seeking activities to enforce some social norm that those elected to do so have decided not to enact and enforce.

Finally, even if we agree that knives should not be easily available, should the state enact such a heavy handed regulation? It is a tough call and there are many people sensible to the issue, but I normally have a bad feeling about regulation that comes out of particular or minority cases and that respond to a perceived public outrage fuelled by the media. The world is full of examples where a single case motivates very tough legislation that tramples over people’s rights while distracting attention from the real causes of the problem (knives have been available for ages so the cause of the rise in knife crime might be well in a different place). The legislation seems reasonable to the victims and to those influenced by hysterical media, but it is expected that public policy is designed based on the interest of the majority with some principles as foundation and not on the state of mind of a grieving parent, friend or relative. So, althought the probable and likely result would be some form of ban (English law is already quite restrictive about the topic), whatever the result is it should come out of sensible policy making enacted via a transparent manner and not as a reaction to one (or several) articles in the press because when public policy and regulation usually come out in that unsuitable manner, one can expect that companies would react going beyond what is needed and/or warranted to avoid running afoul of some hypothetical government hyper reaction…what is not ideal, especially when we are talking about taking away some freedoms…

McScience, courts of law and the valuation of IT companies

The “news” that a top neuroscientist linked the use of some social websites to children’s shortened attention spans, encouragement of instant gratification and young people becoming more self-centred, spread around the world like a bush fire but, is there any substance behind that claim or we are in the presence of yet another instance of irresponsible attention seeking by a “supposedly” top scientist, which is permitted (and encouraged by courts) and could have impact on peoples lives and companies valuations?
During a short period of studies in the US during the early 1990s I came across an expression that I have always treasured for being able to synthesise a complex idea in a word: a McPaper. Some students used it when they had written a paper that had been done quickly and it was not of a good quality. In that context, I think that is fair to say that, as presented, the science behind the article’s claim could/should be catalogued as McScience.
The article that started the media frenzy on the topic does not resist the most minimum analysis: if any of my undergraduate students submit a paper with that quality would fail automatically. The article quotes Baroness Greenfield saying that her “fear is that these technologies are infantilising the brain into the state of small children”, but does not offer any evidence of suggestion of any proper study on the topic. Goes further in the transvestite of science by saying that “Lady Greenfield told the Lords a teacher of 30 years had told her she had noticed a sharp decline in the ability of her pupils to understand others”…are we going to make such a general statement about the implications of the use of a technology based on the opinion of one teacher?! Have the scientific standards slipped that low?! While anecdotal evidence can be used to highlight a fact already proven through extensive investigations and is used in presentations to give a sense of connection with the reality to very arid topics, to base a conclusion on anecdotal evidence seems an extreme violation of any form of research methodology rules. Some of the other claims are statements of fact that don’t add much to the science behind the general claim. The fact that “[s]atellite navigation systems have negated the need to decipher maps” is as true as saying that the existence of off the shelf knives have negated the need to know how to carve a stone to make a cutting tool…that is what technology does: it allows you to free mental and material resources and use them in something that is more profitable or gives you more pleasure…
But these sort of scientist have gotten a level of recognition that make them and others believe that they are beyond the rules of normal scientific standards, and the courts have played a part in that. For years courts have used these renowned scientists as expert witnesses without paying much attention to the real science behind their claims, only focusing on the “status” of the expert, aiding and abetting several instances of miscarriage of justice. The situation of Professor Sir Roy Meadow is the one that first comes to mind when courts are plainly complicit in allowing these seudo-scientist to carry on with their activities that leave a trail of pain and suffering while rewarding them with the fame and the honours. The first part of the story begins with a paper where this person puts forward a theory that there are people that hurt others, specially their children, in order to get attention from the medical personnel, followed by a trail of not independently corroborated evidence showing that his theory is correct and ending in becoming the preferred expert witness for the prosecution in cases where children accidents or death were suspected of being caused by their parents (suspicion raised by following Meadows own theories). The second part of the story is that the very common sense conclusion that his theories were unsubstantiated became finally accepted (the first time I heard the idea that two cot deaths in a family pointed to murder I thought that it should actually point to a genetic or environmental issue, and couldn’t not believe that people were sent to jail based in such weird theory) and that it was shown in court that the statistical evidence used by Meadows was appallingly flawed. The third and shameful part is that the General Medical Council struck him of his license to practice medicine and in two decisions that cast serious doubts into the suitability and capacity of some English judges, the High Court first and the Court of Appeal later ruled that that Meadow's misconduct was not sufficiently serious to merit the punishment which he had received (even it was said in the House of Lords that Meadows work was “one of the most pernicious and ill-founded theories to have gained currency in childcare and social services in the past 10 to 15 years. It is a theory without science. There is no body of peer-reviewed research to underpin MSbP. It rests instead on the assertions of its inventor. When challenged to produce his research papers to justify his original findings, the inventor of MSbP stated, if you please, that he had destroyed them"). In order to decide how serious the misconduct was, it is important to remember that it was based on his expert testimony that Sally Clark was convicted of murdering her two children and, after courts finally understood that they were punishing the victim, and that she then died of alcoholic poisoning due to never recovering for the loss of her children and the subsequent jail time.
Then you have the case of the MMR saga/fiasco. There, Andrew Wakefield claimed to have found a link between the MMR vaccine and autism. The claim contradicts every serious study on the topic and due to its publication millions have been spent in testing its veracity. The claim has affected public policy in certain places and, worst of all, it has lead to a sudden drop in the percentage of children receiving the vaccine, which in turn resulted in the reappearance of measles as a common disease in England. Most scientists on the topic have discredited the theory, there seems to be evidence that the data to support the claim was manipulated and the GMC has presented allegations of serious professional misconduct. To put some judicial weight into the matter, the US Special Court of Federal Claims ruled that the allegations that the combined measles, mumps and rubella vaccine contributed to autism were "speculative and unpersuasive" and that "the weight of scientific research and authority" pointing to the opposite was "simply more persuasive on nearly every point in contention." An issue that cannot escape the analysis is the claim that Wakefield received major funding from trial lawyers seeking evidence to sue the vaccine makers and that he previously filed for a patent on a rival vaccine…and the courts? While a suit for professional negligence, in principle viable because Wakefield failed to “act in accordance with a practice which is accepted as proper by a responsible body of men schooled in the particular art” (Bolam v Friern Hospital Management Committee 1957) could only filled but those that suffer a damage and that had enough proximity (the parents of the kids that died of the disease are too remote to sue), if the claims about the funding and rent-seeking through the patent are true, there is a strong argument to ask the CPS to look into s2 of the Fraud Act 2006. But following the very strange decisions in the Meadows case, one can wonder whether the judges would find that creating a scare that resulted in the reappeareance of an almost forgoten disease for gain could be consider serious enough...
At the same time that all this attention/rent-seeking is taking place, companies are battling against very tough markets, which may make them more succeptible to being affected by negative rumours and ill-conceived regulation. If the response to the increase of obesity in children was to ban certain type of food’s advertisement during children pogrammes on TV, it is not far-fetched to imagine that some minister looking for publicity or just not having a clue what he/she is doing (there are plenty of those around lately), would propose some sort of regulatory framework or information campaing so people, especially youngsers, use social networking sites less than now. This would affect the market size of these companies and, just before going through an IPO, that could be very damaging for any of the companies’ valuation…would the Baroness be liable in anyway in such eventuality if the link that she fears cannot be seriously proven? Would judges be held into account for decisions where the status of the person in question is more important than the substance of what that person claims and than the damage that the person’s irresponsability causes to the public and or companies? It is time that courts forget much of the snobbery that comes with the titles and start using the same legal principles for everyone, remembering that with more honours and fame comes more responsibility…

What a joke! A comedian wanting copyright on performances…

An English comedian recognized breaking intentionally a member of the audience’s mobile phone and added that he didn’t regret it because people were “stealing” comedians’ jokes and they should be protected as films. It is difficult to even start the analysis when somebody claims a right to commit a crime, criminal damage, to protect a right that, in principle, does not have. The strict, basic legal issue, is that copyright protects “(a) original literary, dramatic, musical or artistic works, (b) sound recordings, films, broadcasts or cable programmes, and (c) the typographical arrangement of published editions” (Part 1, Chapter 1, S 1 of Copyright, Designs and Patents Act 1988 (c. 48)), but “does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise” (ibid, s3.2) While a performance can attract a form of copyright for qualified individuals and qualified acts, this performance needs to be one of a work already subject to copyright protection. So, what this particular comedian needs to do instead of smashing the mobile phone of a member of the audience who has said that it was texting and not filming him, is to use the law instead of easily bashing it…just write down the jokes, which automatically will give you copyright protection in any of the members of the Berne Convention and or WTO-TRIPS, and then, when performing in England, the performance will be protected too…
With regard to the claim that people steal jokes, the claim is not new and it should be taken seriously, so if it can be shown that a particular comedian has been the first to write down or fix in any other tangible medium of expression a particular joke that comedian should get copyright for it. However, comedians need to be ready to pay royalties if other people, including people from other countries, can show that they obtained a copyright before them…and I have the feeling that it will be very difficult for a comedian to show that a particular joke has been created by him/her and that it does not constitute either a copy or a derivation of an older joke. In the same way that Borges in his This Craft of Verse claimed that all metaphors could be reduced to a very short list of situations and that most of them were variations of those few ones, it can be argued that jokes follow the same pattern. If that is the case, it is disputable whether changing names and nationalities, for example, in a joke would give the necessary degree of originality to be afforded copyright protection. What probably comedians need to realize is that people pays to see them because they are funny not because their jokes are terribly original (and in most case probably aren’t) and they also take some time out of their “busy” lives to think before they act, because if they really push the issue that their “ideas” should be protected (without knowing it they might be asking for that) they may be asking to extend the law of copyright in a direction that would leave them out of work…if their “ideas” get protection they will need to prove that they are theirs in the first place and that they have not been build upon other people’s ideas, which is one of the pillars of comedy (also known as parody).

In sum, no excuse to commit a crime (I don’t understand how the chairman of the bench had “some sympathy with the issue”) and be careful what you ask for…you may get it!

The Obama poster and the fair use fairy tales

Some minor stir has been caused by the news that the famous “hope” Obama poster has been heavily based on a photography for which AP seems to have copyright. The fastest given, most common and probably most desirable answer has been that the work is protected by the fair use doctrine. Being a staunch supporter of the expansion of the fair use doctrine at international level and having put my fingers in the ORG’s proposal for the post-Gowers copyright exceptions, I have been inclined to believe that fair use would cover the work in question, but the fact is that law is not a matter of faith and claiming wrongly a usually affirmative and complete defence can actually undermine its standing. So, is it really fair use?

Before going into the intricacies of the American fair use doctrine, it is necessary to see whether the poster would constitute an infringement act at all. The photo in question was taken by Manny Garcia, a freenlance photographer under contract (at that moment) with AP, which seems to confer the copyright over the photo to Associated Press. As the holder of the copyright (yes, although used in courts and statutes, owner is not the correct word) AP is entitled to the exclusive right to “prepare derivative works based upon the copyrighted work” 17 U.S.C. § 106 (2) and a previous section of the same Title 17 Chapter 1 of the US code defines derivative work as

a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”

The artist responsible for the Obama poster, Shepard Fairey, acknowledged that it used the AP photo as basis for his poster but until it was questioned by the press and the AP lawyers it seemed to have forgotten about to crediting them with it. By looking to both the poster and the photo it seems quite straight forward that the poster is a derivative work of the photo (if in doubt look at the eyes), which would imply that it infringes AP copyright unless a form of defence can be found. Most commentators have jumped to the conclusion that we are in front of a clear case of fair use, which would provide with the needed defence. But I am finding trouble to find fair use here…

The doctrine of fair use has been also codified in 17 USC §107 and it refers to the fact that using a work under copyright, “including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright”, to then explain the factors to take into consideration to determine the existence of fair include:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Most reporters and/or scholars have used these factors to say that, taking into account that the artist claims to not have received any money for the poster (factor 1), that it was used for political purposes (factor 2 with the added value that political speech is greatly protected), there is clear case of fair use, not mentioning that it seems that in factors 3 and 4 the poster would perform quite badly (the poster seems to reproduce almost exactly the photo changing the shading and “cartoonizing” it and it results very difficult to imagine that the AP photo would have any value in the derivative work’s market beyond the poster itself). However, what the analysts seem to overlook is that the four factors are contingent to the previous paragraphs, which clearly and undoubtedly point towards the purpose of the work: “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”. While it is true that the inclusion of “such as” implies that the list is not exclusive, it also entails that the purpose relate to the ones described, and, understanding the importance of the use of an image for political purposes and the just bias that courts have to protect politically oriented speech, it is not clear how using a copyrighted work to produce a poster that shoots a person to fame and results in exhibitions and other niceties qualify as “such as“ uses.

Here somebody easily could point out that the US Supreme Court has widely spoken about the issue and that the key component is the transformativeness of the work and whether it satisfies a public goal, so the issue is one of fact, how transformative the work actually is, and the public good that serves (getting a president in office seems good enough to me…). The problem with the transformativeness test is that simply changes the nature of the statutory provision and if those that defend fair use and oppose the continuous expansion of intellectual property rights rightfully complain every time that the courts make things up to benefit the copyright or patent holders, as in the Grokster case, they cannot now support the same type of legal transvestite because it fits their ideology. The US Supreme Court in Campbell v. Acuff-Rose Music, Inc. (1994) referred to the importance of transformativeness in its fair use analysis of the defendant’s parody and explained that transformativeness was the new insight that readers, listeners, or viewers gain from the parodic treatment of the original work. But the Court expressly stated that there the purpose was to show something about the original work (in that case the banality of the original song). And that is what analysts seem to overlook.

The statute is quite plain and to find fair use requires to focus on the purpose, the type of work, how big and important is the part used and the impact on the market value of the work, without making any reference to the degree of transformation. Furthermore, it can be clearly argued that the statute follows the correct approach because if the degree of transformation is what it needs to be measured, the fair use defence would negate the existence of derivative works. There is far more transformativeness in making a film out of a book than in making a poster that exactly traces a photography and changes the shades and some colour, although few would argue against the right of the copyright holder to decide who, when and how uses his/her written work to create a film. Even one step further, if the first two factors take an overarching dimension, in the case of photograph of politicians copyright would not exist because in a democratic society getting to know the future or potential leaders has a value that supersedes any private interest on the photo.

As in many cases, it will be up to courts to decide (if it reaches there) and it deserves a further analysis, but, while it would be good if fair use is found it does not seem helpful when all the commentators jump into conclusions just because ideologically suits them…

Global Game Jam…approaching the deadline

We are at the Accelerator in the final straight of Global Game Jam 2009, London’s gig. After two days of thinking, teaming and programming the eight teams are putting the final touches to their games. We have aquatic themed games as The Deep, where Fish Don’t Flock is capturing plankton while venturing into the depths of Flash programming. The team Monochrome is not hiding its head in the sand and is making the Shadow of the Ostrich run through the savannas before the sunset leaves it without light and shadow. Let’s be Cheer has a cheerful view of how even being in between worlds loves put a rosy view to an accident prone bride, in its La Vie en Rose. The team Neon takes the Downfall with a quite sofisticated take on the theme and Dense is putting the last touches on a quite interesting idea about how to navigate a maze through the negative space, the emptiness, that Ma seems to represent. Team Ninja jumps into action with Trampoline Ninja and Exit 8 tells you to Inflate or Die. Team Jez has no name for its problem thrower, while the supreme leader, Fiona, tries to get the games tested before the moment of the truth…which is approaching at warp speed.