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…