New Approach to Privacy: AMP v Persons Unknown

I mentioned on Twitter last week that I was involved in a potentially ground breaking court case but that I couldn't say any more. Well the judgement came out this morning. The case is AMP v Person's Unknown [2011] EWHC 3454 (TCC) and the impact it may have is far reaching in terms of an alternative to orders being sought against essentially unregulatable (for the UK courts) offline platforms such as Twitter or Facebook (see entries passim on CTB v Twitter such as this one or my evidence to the Select Committee on Privacy and Injunctions.  

The reporting of AMP has to be done carefully as there is a Contra Mundum order in effect (for very good reason) so I will restrict myself to only those things said in the judgement and those things which are clearly not subject to the order.  Firstly all credit for the innovative order passed down today rests with the excellent and always innovative Matthew Richardson who made headlines two years ago with his innovative approach to online impersonation via Twitter - the so called Blaney Blarney Order (see here and here). I suspect the AMP order may have the same impact and provides a new approach to the regulation of online content for individuals and companies by applying Chris Reed's "Internet Fallacy" argument to a practical situation. This is people are people wherever they are and people may be regulated and controlled by the courts of the jurisdiction they are in. 

What happened and how was the order won? Well as I said I have to remain within the judgement given the wider Contra Mundum order. Essentially AMP either lost or had her mobile phone stolen (it was reported as stolen with the police) and with it sexually explicit images of the claimant - although the judgement is not clear we can assume she was "sexting" her boyfriend. It is clear that (a) AMP owned the copyright in these images and (b) they were private images obtained illegally via the theft. Soon thereafter the images appeared on a Dutch file hosting site for a short period but were removed from there at the request of the claimant but not before the images had been downloaded by others. As the judgement makes clear a number of blackmail demands followed, possibly from the same person. 

The images then found their way onto a BitTorrent site and a three year legal battle was begun to essentially block the sharing of the BitTorrent content. This is where Matthew and then later I (in a very minor role) became involved. Everyone knows BitTorrent content is unregulatable, or at least that is the orthodoxy, Matthew though came up with a novel approach. You cannot ask Torrent Trackers or the providers of Torrent Clients to block as they essentially cannot do so due to the nature of BitTorrent. What you can do though is prevent people from seeding Torrents if they are within the jurisdiction of the Court. Matthew surmised (and I agreed) that as AMP is not a celebrity (or in any way famous) anyone sharing the images was likely to know her personally either from her circle of acquaintances at home (ex school colleagues etc) or from University. These people would be based in the UK (England & Wales) and would be the key to seeding the Torrent. Take out the key Seeders and the Torrent would pretty much wither on the vine. 

What Matthew needed to do was to convince the Court to award an order that he could serve on anyone seeding the Torrent. As most of them would be located within the jurisdiction of the Court it would be effective. He developed a number of claims including claims under the Copyright, Designs and Patents Act 1988 but essentially it came down to two claims: (1) Privacy under Article 8 of the ECHR and (2) Protection from Harassment. The stronger claim was under the Protection from Harassment Act 1997 as an infringement of a harassment order is a criminal offence. The full judgement is available below but to cut a long story short Ramsay J. agreed that the actions of the Seeders was harassment and made an order under s.3 of the 1997 Act.  A breach of this order is an offence under s.3(6)(b). 

Matthew will now no doubt go about serving this order on anyone who seeds the files in question. This may involve a Norwich Pharmacol application but assuming we are right in our earlier assumption that overwhelmingly seeders will know AMP and are therefore within the jurisdiction of the Court we expect seeders to quickly stop sharing once the nature of the order is made known to them. Hopefully AMPs lack of celebrity means this will not lead to any kind of Streisand Effect - in fact this is not a free speech issue in any way the images were private and were stolen.      

Thus content on BitTorrent may just be regulatable after all. Although we accept this is a very unusual case and its wider application may be limited. 

The judgement is available here.

UPDATE - Just spoke to Matthew and applications for third party identities will be done under CPR 31.17 not Norwich Pharmacol. This is quicker, easier and cheaper. Also Matthew pointed out that the seeders do not have to be based within England & Wales to be brought under the jurisdiction of the order - thanks to a European Arrest Warrant anyone within the EU is bound by the order.

Guest Blogger Alena Shautsova: Bringing Your Family to Safety After You Have Received Asyum

I am pleased to welcome Alena Shautsova as a guest blogger on the That Lawyer Dude Blog. Alena is quite a good young lawyer. She is a leader among young lawyers in the NYS Bar Association and is the liaison from our state bar (Young Lawyers Section)YLS to the ABA's YLD(Young Lawyers Division) and she is also very active in our State bar's Special Committee on Immigration Representation Reform. She is Of Counsel to our Law Firm concentrating on International Law, Immigration and Civil Rights/Employment litigation. She is a rising star in our bar. I commend her work to you.

Can I Bring my Family to the US After I Received an Asylum Status?

A person granted asylum in the United States may bring his spouse and children (unmarried and under 21 at the time the USCIS receives the application for asylum) to the USA.

Such an application (FORM I-730) has to be filed within the two years after the grant of asylum. Failure to file within 2 years however, can be excused for humanitarian purposes.


If an asylee would like to bring his or her spouse to the US, the following conditions must be met:
An asylee must be the principle applicant: that means that he or she was the person who applied for asylum and was granted asylum. Received the asylum status though a relative does not make one eligible to bring over other family members as a Principle Applicant ;
An asylee must remain in asylee status or become a permanent resident;
An asylee was married to the spouse he or she is petitioning for before the asylee was granted asylum.

The same rules apply to spouses who live in the US, and who were not included in the application but became married to the asylum applicant before he or she received the asylum status.


If an asylee would like to bring his or her child to the US, the following conditions must be met:
An asylee must be the principle applicant: it means that he or she was the person who applied for asylum and was granted asylum, and that he or she did not received the status though a relative;
An asylee remains in asylee status or has become a permanent resident;
The child was conceived prior to the grant of asylum: (Note from That Lawyer Dude: in a rather cruel twist, the mother of the child, if not married to the asylee prior to the grant of asylum is not eligible for these benefits,she must allow the child to leave and continue to face the torture of her original nation-state. Further any children not of the aslylee must also be left behind. Maybe noone in Homeland Security has ever watched the movie "Sophie's Choice") ;
on the basis of an employment-based petition; or
A child was under 21 on the date the USCIS received application for asylum. (True for I-589 filed on or after August 6, 2002);
A child is unmarried.

And now for the Good News:

SPOUSES and CHILDREN Who Live in the United States and Were Included in the Application for Asylum:

Spouses and children who are with the applicant in the United States and were included in the applicant’s Asylum application will receive status automatically as derivatives of the main applicant.

Once again I want to thank Ms. Shautsova for her contribution and look forward to her next one. Also I encourage you to check out her blog at:

Evidence to the Joint Committee on Privacy and Injunctions

I spent a fun afternoon yesterday with a mixture of MPs and Lords and three other excellent expert witness on internet industries and regulation/governance discussing what should be done about individuals with accounts on social network sites such as Twitter breaching privacy and super injunctions. Our evidence session was about one hour and we were followed by executives from Northern and Shell (publishers of Express Newspapers and owners of Channel 5).

Update You can also access the video stream from the BBC Democracy Live site which is better quality than the Parliament Stream and may work better on Apple Devices

Kid Tweets That She Muscled Governor Brownback. Should She Be Made To Apologize? I Say YES!

Here is the story from the Associate Press:

"A Kansas teenager who wrote a disparaging tweet about Gov. Sam Brownback is rejecting her high school principal's demand that she apologize.

Emma Sullivan (twitter@emmakat988) told The Associated Press on Sunday that she's not sorry and an apology letter wouldn't be sincere.

The Shawnee Mission East senior was in Topeka last week when she sent a tweet from the back of a crowd of students listening to Brownback. It read: "Just made mean comments at gov. brownback and told him he sucked, in person."

She actually made no such comment..."

Thereafter Brownback's Media hound found the tweet while searching the Governor's name. When she read the tweet, she contacted the school. The Principal got a call from the Governor's office, and had heart palpitations. He ordered the 18 year old woman to write an apology to help him with "damage control."

Our Question is: Should Ms. Sullivan apologize and for what should she apologize?

The kid claims to be liberal. Okay. She also claims not to like Governor Brownback. Okay again. She has decided not to write the apology...and every liberal and libertarian it seems supports her decision... NOT ME.

I am not being contrarian, I just think that there are some serious issues here that may not be affected by this young woman's right to free speech.

1. She was at a school function, representing her High School.
2. She lied, she said she told Brownback off, in person.
3. She tweeted, against the rules of the school at a time she was in class.

Now I want to make the following clear. If she had tweeted, on her personal twitter account at 3:30PM that she saw Brownback and wished she had told him he sucked, well then no problem.
That isn't what happened here. Here she was invited to meet with the Governor of her state.Not because she was someone who the governor would normally meet with, but because she was chosen by her school to go. While she was in the Governor's home or office, she took out her cellphone, and reported she told the man "He sucked" (Skip the fact that the statement is both juvenile and vulgar) in person. That was both against the rules about texting in class, AND, it was a lie.

Now imagine if she had said something dumber like she had assaulted or God forbid shot the man? Would that be okay?? What First Amendment line had been crossed? Isn't that still political speech? She is still saying she doesn't like the man. She is still lying. She would still be doing it on school time.

No, I don't agree that she is putting forth her opinion. I think she was going for a laugh, which is also okay as far as it goes, but the truth is, it was disrespectful not of Brownback (after all it goes with the territory of being a politician) but of the Office of the Governor. It was also a disrespect of her position as a campus leader of her school and all the people in it, including the few that may like the Governor, AND, she broke her school texting rule.

Now that doesn't mean she should have written a mea cupla, nor promise to help Brownback win his next campaign. It does mean that this college bound woman should show some understanding that: 1. The Governor of your state deserves your respect as the leader of the state and the choice of the people of your state; 2. You broke school rules and you are sorry for that, and; 3. That as a school leader, she has an obligation to represent her student body by asking smart questions, reporting accurately what was said and if she disagreed she had the right to state an opinion that criticized Brownback.

I am not asking her to agree with Brownback, but respect for our institutions is an important thing for schools to teach. The proper way to engage in debate is an important thing for leaders to learn. (Remember when some wingnut congressman yelled out at Obama during his State of the Union "you're a liar"? that kind of comment does not spur on the debate. It doesn't bring the other side into understanding your grievances. Saying Brownback "sucks" is just juvenile and frankly makes me think Ms. Sullivan is stupid. All I know is, she is entitled to an opinion, but you don't have the right to come into my house and crap on my carpet. Verbally, that is what she did. Her principal is right to demand an APPROPRIATE Apology. Not one that necessarily makes the Governor or his people happy, but one that indicates that the student understands where she went wrong.

Sexual abuse on College campuses, Internet Identity Theft Protection and a Few Silly Laws

Thanksgiving was really good. I had a great time hanging with the family. Of course between courses, we had a long discussion about the Penn State situation. Then just as the Penn State Drama begins to simmer down, (I will not rehash the last 250 or so comments, the most ever on this blog, just click the link above.) Syracuse University fires its long time Assistant Coach Bernie Fine. Now originally Syracuse put him on paid leave, but another person has come forward to announce he was molested by Fine and a tape of Fine's wife is offered where she admits she had sex with a the then 18 year old ball boy who claims Fine molested him until he was 28...,(really, 28? Okay that is going to provide some fodder for the defense.) This story is getting more sordid by the day, yet I am so very unimpressed with yet another major University refusing to let the legal system do its job and waiting before casting dispersions upon someone based on what so far appears to be fairly flimsy "facts." My big question is "How are these guys ever going to get a fair trial??"

OK onto another Scary College Professor story. This one involves Professor Grant D. Smith an eEngineering
Prof from Univ. of Utah who, while flying first class to Boston, takes out his laptop and begins to watch alleged Child Porn!! Fellow passengers in First Class take out their phones and take pictures of what he is watching, they then send those pics to a family member who then calls the cops to report Smith to the authorities, where he is arrested at Logan Airport. This ought to be interesting. There are like 10 crimes here. Smith possession of Child Porn, using a cell phone while in mid air (aren't you supposed to turn them off? I don't know any more I haven't flown in a long while but this article in Sunday's NY Times makes me think you still must power off.) Possession by the picture taker/witness, transmission in interstate commerce to the friend, the friends receipt and possession of child porn, his transmission to police of same. Interesting no?? Smith's defense team will not be allowed to have the photos to see if they are real or nor how they could have gotten on his laptop because the government restricts the access to these photos to include not allowing the defense to have them. Of course the Just-Us Dept. lawyers can have them anytime they want and send them where they want to "test them"etc.

So far it appears that the state is prosecuting, however I think this will soon be taken federal as the penalties for possession of child porn carry such harsh jail times that the possessor prosecuted by the feds, will face far more time than the person doing the molesting will as the molester only is prosecuted in state. Further proof that criminals have no lobby in Congress.
In this case, Smith faces an uphill battle given the photos taken, but then again, we should know not to jump the gun on these things. At least Univ of Utah has a sane approach. The Professor is placed on Admin. leave, until the case is completed, then if guilty he is fired. Seems reasonable, let the courts run their course then decide. Wish Penn State and Syracuse would have shown similar trust in the judicial system to let it do its job.
As for Smith, I would eschew the usual suspect criminal attorneys and get one that works significantly in Cyber-sex crimes. The area is becoming an important sub-specialty of Criminal Law and he will need that expertise to help him avoid a very VERY long jail term.

I remember sending my boys to college campuses in the summer to learn from the college coaches how to play soccer. We also sent them to scholastic camps at Northwestern, Princeton and to the World College in Italy to learn debate skills. I spoke to my sons about those experiences and about whether those were positive experiences. Both acknowledged they were. I asked about the relationships between the participants and the teachers and both said they saw nothing inappropriate, but that the opportunity for abuse is always there, especially in Summers on large campuses with few people around but with lots of buildings. I think if there is any fall out from these scandals, it has to be how parents are going to determine if they can trust the adults with whom they entrust their children. I have no answer, but I think we really need to look into the supervisory relationships, staffing, dorms, and other things before we send the kids into even the most prestigious opportunities.

In another Cyber/ Interent Crime related story, Yahoo provides us with the 25 dumbest passwords. If you use one of these passwords, you are either asking to get hacked or you are a moron. I mean really a password called "Password"? 123456? ABC123?? Who are you the Jackson 5??.

A strong password is made up of letters that do not spell out a word, and those letters should be a mix of Upper and lower case letters. Add some numbers and some signs ie: (!@!@#$#%$%^&). Hence Hb3%eI2* would be a fairly strong password. (Now PLEAASSSEEEE don't use that as a password...) Sigh...

Lastly I thought you would all get a kick from this story about how it is illegal to hail a cab for someone you aren't traveling with in NYC. It is a little known law but it provides a cop with probable cause to stop you and even if that PC escalates to search you. The law was aimed at the Squeggy men. There are some decent underpinnings to the law, but I think it lends itself to selective prosecution defenses. It might be a trite over-broad and vague too.

Anyway, flame away all you rush to judgment types out there. For those who have a few ideas on how to judge what camps and opportunities are safe for kids please leave a comment. For any one with ideas on Safety of Identity please share your knowledge.

Happy Thanksgiving.

Giving Parliamentary Evidence Tomorrow

Tomorrow afternoon I am taking a jaunt to provide evidence to the Joint Select  Committee on Privacy and Injunctions. I'm on at circa 2.15pm with Dr. Ian Brown of the Oxford Internet Institute, Ashley Van Haeften, Trustee of Wikimedia UK and Nicholas Lansman, Secretary General of the Internet Service Providers Association. The whole thing can be watched live (and then archived) from the UK Parliament Channel - I have a list of questions but can't share them with you, I also have my suit pressed and a new pair of shoes. 

It is a busy day tomorrow as I'm teaching 12 - 1, then at 6.00pm we have the excellent and entertaining Barefoot Technologist discussing the key themes of her book Barefoot into Cyberspace. If you are in the vicinity of the LSE's new Academic Building at 6.00pm - we're in the Moot Court Room on the seventh floor - join us.

Baker & McKenzie Debate on Meltwater

Yes the blog lives. I've been so busy the last six months or so that this was the first thing to go by the wayside but now I have a couple of important things to blog so here is the first...

Last Tuesday Ben Allgrove and Iona Harding at Baker & McKenzie's New Bridge Street offices arranged an excellent debate entitled "Is Meltwater the End of Browsing". I was asked to argue in favour of the motion alongside the excellent and entertaining Neil Wilkof (Head of IP at Herzog, Fox and Neeman and IP Kat). Ranged against us were the formidable Justine Pila (St. Catherine's Oxford) and the the passionate Dominic Young (former Chairman and Director of NLA).

Did we win? Yes we did! We went from one vote to nine (an 800% increase) while the pro-NLA stance offered by Justine and Dominic went from nineteen votes to twenty-six (an increase of only 37%) or if you prefer straight numbers - we won eight additional votes, the other side only seven additional votes. Full details are on IP Kat.

In truth I don;t think either side scored a clear victory but in a room predominantly filled with in house lawyers from content providers I found our winning of eight votes to be cathartic.

My argument was based upon a change of status for web content which is passively browsed and is set out in full below.

NLA v Meltwater – Draft Outline of Argument

Argument: NLA v Meltwater is the end of Browsing

Key Principles:

1.      Consumptionis clearly distinguishable from reproduction and while copyright law restrictsthe latter it permits the former.

2.      While in copyrightlaw consumption is a permitted act (see 1), in digital distribution thispermitted act becomes a permissible act due to the operation of the system.

3.      Thisreflects an important legal migration in regard to digital consumption – wemove from permitted to permissible to what – not permitted?

4.      The InfoSocDirective, Article 5, is designed to rebalance this movement both fordistributors and consumers.

5.      The movementseen in recent cases Infopaq and in particular Meltwater has removed theprotection awarded to end users at 4.

6.      In the UKpost Meltwater environment web surfing once again is placed in its pre November2003 scenario – browsing is not an activity as of right (permitted) it is onlyallowed at the discretion of the copyright holder (permissible) which may beremoved or revoked at any time (not permitted) – this is in breach of thespirit and in my view the letter of the InfoSoc Directive.

1.      It is thetradition of copyright law that it protects restricted acts, restricting themto the copyright holder and their licensees. These acts all involve the makingor distribution of copies or adaptations. There is no copyright restriction onconsumption and there never has been. Thus if a copy of a book is left on apark bench and I pick it up and start reading it I commit no infringement.Equally if I walk along the street and look through the window of a gallery (oreven private home) and look upon an Albers hanging upon the wall, I commit noinfringement and need no license. Licences are only required where one isdealing with a restricted act (eg a PRS license for playback in private venueswhere the public or a sample of the public (such as employees) are listening.)The act of consumption (in the analogue world) is one which has never required a license. It is nota permissible act it is a permitted act.

2.      As we areall aware digital distribution unbalances this traditional model. To consumemeans to make a local copy. Local copies can be made at several points alongthe distribution model, including two final copies at consumption (1 a cachecopy) and (2 a screen copy). This is purely an effect of the digitaldistribution model. It is because instead of sending the original from point Ato point B we instead make a copy of the original available at point B. Thismakes consumption dependent upon the making of a copy and consumption as aresult moves from being a permitted act to one which requires the permission ofthe copyright holder (i.e. a license). If we strip away the technicality though there is nothing in factdifferent in reading a newspaper in physical form and reading a newspaper on aniPad or Kindle. Both are acts of consumption not acts of distribution oradaptation. 

3.      This createsa vital distinction in our manner of (legal) consumption. Whereas consumptiondid not require a license or permission of the copyright holder in the analogueworld it appears it is needed in the digital world – see e.g. Shetland times vWills 1997. This moves consumption from being a permitted act to being apermissible act – i.e. one that requires the permission of the copyrightholder. This permission unlike the freedom offered by a permitted act can bewithdrawn at any time as it is at the whim of the copyright holder. Thus afreedom is converted and lost. We lose the freedom to consume.

4.      This changein position was recognised at an EU Level. It was recognised both in thedistribution chain (also affected by the change in fact) and at the point ofconsumption. This is clear from both the recitals and the articles.

(31) A fair balance of rights and interests between the differentcategories of rightholders, as well as between the different categories ofrightholders and users of protected subject-matter must be safeguarded. Theexisting exceptions and limitations to the rights as set out by the MemberStates have to be reassessed in the light of the new electronic environment.Existing differences in the exceptions and limitations to certain restrictedacts have direct negative effects on the functioning of the internal market ofcopyright and related rights. Such differences could well become morepronounced in view of the further development of transborder exploitation ofworks and cross-border activities. In order to ensure the proper functioning ofthe internal market, such exceptions and limitations should be defined moreharmoniously. The degree of their harmonisation should be based on their impacton the smooth functioning of the internal market.
(32) This Directive provides for an exhaustive enumeration ofexceptions and limitations to the reproduction right and the right ofcommunication to the public. Some exceptions or limitations only apply to thereproduction right, where appropriate. This list takes due account of thedifferent legal traditions in Member States, while, at the same time, aiming toensure a functioning internal market. Member States should arrive at a coherentapplication of these exceptions and limitations, which will be assessed whenreviewing implementing legislation in the future.
(33) The exclusive right of reproduction should be subject to anexception to allow certain acts of temporary reproduction, which are transientor incidental reproductions, forming an integral and essential part of atechnological process and carried out for the sole purpose of enabling eitherefficient transmission in a network between third parties by an intermediary,or a lawful use of a work or other subject-matter to be made. The acts ofreproduction concerned should have no separate economic value on their own. Tothe extent that they meet these conditions, this exception should include actswhich enable browsing as well as acts of caching to take place, including thosewhich enable transmission systems to function efficiently, provided that theintermediary does not modify the information and does not interfere with thelawful use of technology, widely recognised and used by industry, to obtaindata on the use of the information. A use should be considered lawful where itis authorised by the rightholder or not restricted by law.
Article 5
Exceptions and limitations
1. Temporary acts of reproduction referred to in Article 2, whichare transient or incidental [and] an integral and essential part of atechnological process and whose sole purpose is to enable:
(a) a transmission in a network between third parties by anintermediary, or
(b) a lawful use of a work or other subject-matter to be made, andwhich have no independent economic significance, shall be exempted from thereproduction right provided for in Article 2.

Myunderstanding of Article 5 (especially in light of Recital 33) is that Art.5(1)specifically permits the distribution of digital copyright products, whileArticle 5(2) permits consumption (problem – this darn term “a lawful use” nowthe other side will argue this means licensed I’m going to say permitted). Theidea of article 5(2) is to place digital consumption on the same footing asanalogue consumption.

5.  There arereasons to be concerned by Infopaq and Meltwater. Infopaq started the narrowingof the temporary copies exemption (i.e. the one needed to allow distributionchains and consumption). The problem is paragraphs 62-64 of Infopaq and itsapplication in Meltwater. Starting with Infopaq, at para.54 it sets out thetemporary copies exemption as seen in Article 54.
54      The article set out five cumulativeconditions, namely:
(a) the act is temporary;
(b) it is transient or incidental;
(c) it is an integral and essential part of a technological process;
(d) the sole purpose of that process is to enable a transmission in anetwork between third parties by an intermediary or a lawful use of a work orprotected subject-matter; and
(e) the act has no independent economic significance.

Thenby paragraph 62:

62      Legal certainty forrightholders further requires that the storage and deletion of the reproductionnot be dependent on discretionary human intervention, particularly by the userof protected works. There is no guarantee that in such cases the personconcerned will actually delete the reproduction created or, in any event, thathe will delete it once its existence is no longer justified by its function ofenabling the completion of a technological process.

63      This finding is supportedby recital 33 in the preamble to Directive 2001/29 which lists, as examples ofthe characteristics of the acts referred to in Article 5(1) thereof, acts whichenable browsing as well as acts of caching to take place, including those whichenable transmission systems to function efficiently. Such acts are, bydefinition, created and deleted automatically and without human intervention.

64      In the light of theforegoing, the Court finds that an act can be held to be ‘transient’ within themeaning of the second condition laid down in Article 5(1) of Directive 2001/29only if its duration is limited to what is necessary for the proper completionof the technological process in question, it being understood that that processmust be automated so that it deletes that act automatically, without human intervention,once its function of enabling the completion of such a process has come to anend.

Thus somewhere the court has withoutjustification added a new requirement: that the copy be deleted without theneed for human intervention. This is notin Article 5 nor required by the recitals. The only reason for this appearsto be to balance the interests of the rights holders. This is a hard policydecision to ensure that permanently stored digital copies (stored in permanentmemory and which require human intervention for deletion) and external hardcopies do not benefit from the transient copies protection (this is clear inparagraphs 66 and 67 of Infopaq).

Now we come to Meltwater. Here theCourt of Appeal start from the Infopaq end point – that found by Proudman J.that “the temporary copies exception is solely concerned with incidental andintermediate copying so that any copy which is 'consumption of the work',whether temporary or not, requires the permission of the copyright holder. Aperson making a copy of a webpage on his computer screen will not have adefence under s. 28A CDPA simply because he has been browsing. He must firstshow that it was lawful for him to have made the copy. The copy is not part ofthe technological process; it is generated by his own volition. The whole pointof the receipt and copying of Meltwater News is to enable the End User toreceive and read it. Making the copy is not an essential and integral part of atechnological process but the end which the process is designed to achieve.Storage of the copy and the duration of that storage are matters within the EndUser's control. It begs the question for decision whether making the copy is toenable a lawful use of the work. Moreover, making the copy does have anindependent economic significance as the copy is the very product for which theEnd Users are paying Meltwater.”

In other words because a browsercommands a copy to be made they interfere in the technical process, thuscausing the copy to be made. Applying Inofpaq this is not permitted underArt.5(1). This leads to the ludicrous decision that “As is clear from aconsideration of recital 33 as a whole, the reference to "browsing"is "to the extent that they meet these conditions". ‘They’ refers tothe acts of reproduction. The acts of reproduction are those occasioned by thevoluntary human process of accessing that webpage. Accordingly, they fail tosatisfy any of the conditions to which recital 33 refers. S.28A does notprovide even a limited defence to the claims of infringement to which thebusiness of Meltwater is likely to give rise. This is plainly wrong “they”mean: (1) acts of temporary reproduction; (2) which are either “anintegral and essential part of a technological process and carried out for thesole purpose of enabling either efficient transmission in a network betweenthird parties by an intermediary” (distribution) OR “a lawful use of a work”(consumption) and (3) which have no separate economic value on their own.

The effect of two policy decisions isdamaging. Infopaq was about ensuring semi permanent copies do not somehow sneakthrough the temporary copies exemption by ensuring copies kept for a shortperiod but at the control of a human actor are not included. Meltwater has nowextended this to browsing which is specificallyexempted in Recital 33.

      6.  Thus in theUK post Meltwater environment web surfing once again is placed in its preNovember 2003 scenario – browsing is not an activity as of right (permitted) itis only allowed at the discretion of the copyright holder (permissible) whichmay be removed or revoked at any time (not permitted) – this is in breach ofthe spirit and in my view the letter of the InfoSoc Directive.  

A Strong Defense of Joe Paterno: Why Paterno Was Morally & Ethically Right Not To Go Further in The Sandusky Sex Abuse Case

In the comments section of an article in an SI online blog post by Joe Posnanski, Columbia Univ. Adjunct Professor Scott Semer assails Joe Paterno for not taking greater actions in the Jerry Sandusky case (Link is to the actual Grand Jury Report. It is not for the squeamish.)

Semer rests his opinions as a lawyer and an Adjunct Professor of Transactional Law at Columbia Univ. in NYC. He takes what I believe is the majority opinion as to Coach Paterno's decisions which is that he did the least he could do to cover himself but owed a moral duty to do more.

I too am an attorney, a criminal defense lawyer, a former special prosecutor, and an adjunct professor of Trial Advocacy, and as to his judgment of Paterno I completely disagree with Professor Semer. I think Paterno did what was both morally and legally correct.

After contacting his chain of command superiors, he let them do their jobs. He knew there was a campus police force that investigates ( and prosecutes ) crimes on campus. He took whatever information he had to the head of his department. He took it to the person who is, for all intents and purposes, the police commissioner of a 256 person police force which according to the Campus website says: "(The University Police are) governed by a state statute that gives our officers the same authority as municipal police officers."

Paterno didn't just give his information to a superior, he turned it over to the highest ranking official in that police department. That man, PSU's VP of Business called in the ACTUAL WITNESS and spoke to him. In other words Paterno could see an investigation.

Suggesting Paterno should have then done more is both ridiculous and dangerous. Paterno should not have approached Sandusky,for fear he tip him off to the investigation; he should not have called University police after nothing happened because 1. A police department has a right to set its policing priorities. The Courts have consistently held that: it is a "fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen." Warren v. District of Columbia, 444 A.2d 1 (D.C. Ct. of Ap., 1981).
2. Once he reported the incident (and not having any information as to the progress of any investigation or the results thereof) Paterno had no other action he could reasonably take. If he pressed further or went public he risked opening himself and the University up to a law suit from Sandusky for libel , and that is assuming Paterno thought the grad assistant was both reliable and accurate. By that person's own admission he was distraught. He would be accused of trying to eliminate a potential competitor for his job. He would also call into question the safety of the campus and without any proof of his own on the allegations of another. Pattern is not a witness and arguably isn't even an "outcry witness." ( an outcry witness is one who verifies that another witness was so distraught that what they are saying must be true. To be an outcry witness the original witness must make his statement to you first and within a few minutes top hours after witnessing the incident. More than a couple of hours usually spoils the outcry's reliability. It gives the maker too much time to make up the testimony)
3. Assuming Paterno did go to the Chief of Police for the Penn State police department, the person under Gary Schultz, would that not be an act of insubordination? What if he were wrong? He would lose a long time friend and PSU family member. He would hurt alums, recruits and his teams. His fellow coaches could not trust him, all of this without being an actual witness to anything. Taking one man's word against anothers.

Noone wants to see kids hurt, and I believe Coach Paterno heads that list. People suggesting he needed to do more either don't understand the law of criminal investigation, or have a different ax to grind ( like the head of the PA State Police who is grand standing in saying people have a greater responsibility than to report crime to the local Authority. He would be the first guy to defend a civil rights suit against his agency, (brought by a crime victim claiming that the failure to arrest caused her injuries) by invoking the Warren case.)

Paterno handled this exactly as he should have and to suggest otherwise is to use 20/20 hindsight to judge what was a fluid real time situation. I guess the path is always clear for the Monday Morning Quarterback.

Happy Fourth of July 2011

Well in a few hours our nation celebrates its Independence from the Tyranny of the British Royal Crown. A few years after the decision to cede from British rule and after a war, we finally settled on a Constitution (there was a loose confederacy of states before that but we ultimately chose a federal system of government)to govern us. This Constitution tried to embody as much of the Declaration of Independence as it could, however the original document was thought lacking by the Declaration's author Thomas Jefferson, so he persuaded his friend John Madison to lobby through an embodiment of the Rights of Man our American Bill of Rights.

Jefferson wanted to preserve the fervor and feelings of his Declaration of Independence which begins with a statement about the self evident nature of the rights of man (meaning God Given rights) but he was well aware that tyrannizing politicians could do away with these rights as the King did to the Colonialists. Jefferson, wary of a big federal government wanted to limit the abuses that could become our government if Monarchists ever obtained an upper hand in our government.

In a large sense however, the Monarchists may have won if the goal was a large centralized government and a federal presence in the decisions of our daily lives such that the states have little to say about how they run themselves and we as citizens have little access to our Representatives. Our leaders appear only on news shows and before reporters who will report their views their ways and will not ask hard questions. Both major parties favor large government when it suits them and states rights when it doesn't.

For example Republicans favor states rights on Abortion and Immigration policy because they can't seem to get control of the federal government long enough to shove their view down our throats.On the other hand, they want a federal standard if a state doesn't follow their lead on an issue. In other words "States who agree with us get rights the rest of you be damned."

Democrats want state government to decide issues such as gay rights and gambling because they can't get the votes to work these out to their constituency favor on a national level. They favor state rights to decided what a marriage is, but would not allow states to determine what a "life" is.

I don't care where you stand on the issues of Abortion, gay marriage, Internet poker or the like. I care that things are actually interpreted by our Constitution with a view toward the Jeffersonian approach to our government. I'd also like to see a sense of shame when a party acts hypocritically.

Here is how some of this would shake out under my view of the world. Interstate commerce and Immigration policy are national in scope as are issues of Defense. These areas are reserved for Federal control. The Internet is also a federal issue, why? Because it is EVERYWHERE!

Health, Sex, Gambling, all criminal activity except for terrorism, treason, bank/mail/and wire fraud are state issues. There is an exception to that and that is that the Fraud must not just use the wires or mail to be committed, but must be committed against citizens or corporations on a national scope. Hence just because someone in NY calls someone else in NY to commit a fraud on a NY corporation, that use of the phone would not make for a federal case just because the phone line routed the call through a national grid of phone lines etc.

In my world, elementary education would be left up to the states, civil rights are federal. Secondary education (High school and up would be a mixture of Federal and State control depending on the issue however as somethings (like law or science) are things that need to be shared nationally we do need some national standards.

The feds could set standards that each state need to meet in the area of dealing with the imprisoned or the poor, but it would be up to the states to implement the standards. Economic Policy is a shared item as well. National Parks need to be part of a 3 way discussion Fed, State and local governments need to participate together. OTOH, the feds need to stay out of our homes, our hotel rooms our bank accounts and anything else that concern us as individuals.

Anyway, I could go on, and I will, but I want to know what you think of this whole concept of Independence. What does it mean to you, not personally, but as it relates to how we as citizens obtain a government that will uphold our right to live and conduct ourselves in the freest of fashions.

Edited to add a couple of links and clean up some spelling errors.

CTB and Twitter: I Could Have Saved CTB Time, Money and Publicity

This is my first commissioned blog post.

Yesterday afternoon during the height of the CTB/Twitter fire-storm a message came through from popular Twitter artist/comedian/lawyer @loveandgarbage "BREAKING: Public demand Murray blogpost on CTB issue"

I realised this story did demand my attention but it was sunny and I was sitting in the garden eating an ice cream. As the world was going to end at 6pm I wasn't about to go inside and write. Tomorrow I told @loveandgarbage - I would do it tomorrow (assuming tomorrow would never come).


Well unlike Little Orphan Annie for me tomorrow has come (to the disappointment of Harold Camping). As I said I wasn't about to start blogging yesterday afternoon in case all my readers were Raptured before the end of the day (or I suppose it should be the End of Days).  Now that I seem quite sure we're all going to be here to enjoy Survival Sunday (c'mon Blackpool) it seems the perfect time to talk about CTB and his battle to keep his identity as professional footballer CTB under wraps. 

Survival Sunday now means something else for CTB. For those of you unfamiliar with the story (is there anyone?) - CTB allegedly had a sexual relationship with Big Brother star (is this right - star?) Imogen Thomas. This would not be a problem except CTB is married and has a family. When Miss Thomas threatened to go public with details of the affair CTB obtained an injunction against publication. It seems (and I might be wrong in this) that it is wrong to refer to it as a superinjunction (at least now) as the order was varied by Justice Eady to allow for Miss Thomas to be named in the press. A superinjunction cannot be reported at all - like the one which is held by the sitting MP who obviously cannot be named (although like CTB most of us know who they are). Apparently on Wednesday last week CTB's lawyer's Schillings applied for a Norwich Pharmacal Order against Twitter and persons unknown. In legal terms this is the sensible next step and there is a form of precedent for this in the Blaney Blarney Order. But the big difference with Blaney and CTB is who the order is being served on. In Blaney Matthew Richardson came up with the frankly brilliant idea of serving on the account and asking the account holder to identify themself, whereas as far as I can glean Schillings have gone for a straight Norwich Pharmacal which they served on Twitter on Friday. 

CTB Schillings and Twitter  

The effect of serving the order was to throw fuel onto a fire that had started to smoulder. As I discussed earlier about this case it is the hint of the forbidden that causes people to gossip.As the identity of CTB and other injunction holders entered the public consciousness people started to slowly lose interest. Hash Tags such as #superinjunction which had been trending seven days before had stopped trending and attention turned to the wider issue of the Neuberger Report. Then Schillings and CTB threw fuel onto the smouldering fire. As one would expect an explosion occurred. It has been reported that Twitter had barred CTB's real name from trending but that upon receiving the order removed the block. this seems highly unlikely instead it was simply that a sudden weight of interest in the story coupled with two effects (below) caused the star's name to trend with reports that it was being tweeted sixteen times per minute. What caused this perfect storm?  

Well first there is the Streisand Effect. This states that when someone tries to suppress information online the internet interprets this as damage and routes around it - causing greater publication of the data. The second is the #IAmSpartacus Effect. This was seen clearly in the Paul Chambers case. Users of Twitter have an unusually strong community spirit. If you attack one you attack them all. When Schillings launched the Norwich Pharmacal Order on Twitter it meant that there was an attack on the community. People who would never name CTB began doing so in solidarity with the members under attack. Suddenly CTB's name was everywhere - across Twitter, across Wikipedia and elsewhere (even appearing in several jokes on online sick humour site Sickipedia). As a method to keep his identity private it was without doubt the worst thing he could have done.

What next then? Well the Norwich Pharmacal Order is still in play so the next move is Twitter's. Now as has been pointed out ad nauseum Twitter is not directly subject to the jurisdiction of the Courts of England & Wales but a source that I spoke to some time ago (makes me sound like a proper journalist) said that Twitter had indicated it would comply with recognised orders of any Court. Now though comes the litmus test. Will Twitter hand over account holder details to Schillings and the English Courts? If they do so they risk massive commercial damage as users leave Twitter over a perceived failure to protect their identity. If they do not they will be seen as failing to assist the Court in the lawful pursuit of its duties. For Twitter this really is a catch 22. They will hope that the reaction to the story causes Schillings/CTB to drop the action. This gives them an easy way out. If not they will have to decide whether to voluntarily accept the order or to reject it and make a first amendment argument. Watch this space.

How I could have saved CTB Time and Money (and Needless Publicity)

The CTB Twitter story is for me the perfect case study which finally proves my theory of symbiotic regulation.For some six years now my research has been focussed upon how one brings about effective regulation in Cyberspace.  Why do some attempts to use legal (or even extra-legal) controls fail while other succeed. I know that the traditional model (the Cyberpaternalist model) wasn't true. It suggested that control could be effected through a mixture of law and code - a perfectly controlled designed environment where you could only say or do what the regulators allowed. This only works if you imagine the internet is a communications device only. The internet though is made up of communities of people and communities require socio-legal controls to be effective. These ideas began to coalesce into my 2007 book The Regulation of Cyberspace.  You can read the preface and chapter one on my website. Basically my view is that online communities require to be controlled through regulatory settlements which are socially (politically) acceptable to that community. Otherwise the community will design a response to the attempted control which undermines the attempted control and often (as we see here) overwhelms it. The answer is symbiotic regulation - regulation designed to harness the political will of the community not one which attacks its core values. Two short papers with variations on the symbiotic regulation argument are available from my Selected Works page. They are Symbiotic Regulation and Regulating the Post-Regulatory Cyberstate.  

What should CTB have done from a Symbiotic point of view?

This is a difficult case as it depends upon his aims. I would have managed his expectations and said he was unable to keep his identity secret. In order he should do the following:

  1. Apologise to his wife and take his family away from the UK for a short period (as John Terry did during the Veronica Perroncel story).  
  2. Make a public statement admitting the affair (assuming it is true, otherwise deny) and asking for people to respect his children's privacy - (this kicks in the PCC Rules and appeals to the family responsibility sentiments of most Twitter users. Although they feel no sympathy for the player they do for his family, especially his children). 
  3. Wait about 10 days and bring the family home.
This wouldn't prevent the children being exposed to the story, the only thing which would have prevented this is not to have an affair in the first place. But in the ten days his family were away much of the story would have burnt itself out. Obviously there would be media interest in the family's return to the UK but the PCC rules would protect the children to some extent. The online forums and Twitter would though mostly have moved on to something else - probably the actor/prostitute story (have you noticed it has started to fade away because they didn't seek a Norwich Pharmacal?)

Final Thoughts

In the 1890s it was the Box Brownie camera. Today it is Twitter. The relationship between technology and privacy will always be problematic.  What though can we learn from the past? Well as Mark Easton points out the famous Warren and Brandeis Harvard Law Review article The Right to Privacy found the highly influential lawyers railing against the invasive effect of the portable camera. They noted that "modern enterprise and invention" were being used by the press "to satisfy a prurient taste" for the details of sexual relations. This they said was "overstepping in every direction the obvious bounds of propriety and decency" and argued the press had "invaded the sacred precincts of private and domestic life".

One hundred and twenty one years on how have things improved? Have the press taken account of the Warren and Brandeis argument? Are things better? Let's look and see? 

Final thought. Based on this is there any way you can imagine the blunt instrument of the court order will be effective on Twitter?

The Problem of Gossip, Rumour, Privacy and Superinjunctions

Super-injunctions are the order of today, with the media obsessed currently over the Twitter breaches which although specifically highlighted in the last 48 hours have been ongoing for the last few weeks ever since the initial rash of reports that there were three injunctions involving a married footballer who had had an affair with a former big brother contestant, a "leading actor's" visit to a prostitute and that a TV actor had an affair with a colleague.  If you want to read the standard commentary then go to any one of a hundred news sites who are foaming to give you the clues to unmask these people (and others including the second footballer who had an affair with model Kim West, a chef who used the process to gag reports of an ongoing tribunal, the TV personality caught in pictures enjoying the company of another celebrity and the actor/comedian who enjoys something more "interesting" in the bedroom) - a good example of such a story is this one in the Daily Mail. A few journalist are actually doing a fair job of analysing the legal position such as Dan Sabbagh's story for the Media Guardian but I'm here to argue something different: super-injunctions are harmful to privacy rather than a positive defence of it.

Why are super-injunctions counter productive?

Let's look at what has happened in the four weeks since the original stories surfaced. Some things have been revealed such as Fred Goodwin had an injunction preventing him from being named as a banker in a story relating to an affair and Andrew Marr had a long held injunction preventing him from being named in relation to a child born of a woman he had had an affair with. What would have happened without these injunctions? The aphorism is today's news tomorrow's chip paper. We would have had a very short splash in the papers about these affairs and then probably they would have been forgotten (footballers and politicians aside news of affairs tends to quickly fade from the memory) - who remembers honestly that Ralph Fiennes split from his long term partner Francesca Annis after a rumoured affair with a Romanian singer (or that he met Annis while still married to Alex Kingston) - if you argue that was five years ago what about this story from March this year? Honestly did you remember them?

The problem of the injunction (super or otherwise) is twofold: (1) It extends the life of the story and (2) It causes anguish to others (in breach of their Article 8 Right). Both these have the same root cause - the human desire for knowledge. We crave what we do not have, what we do not know, but quickly forget these things when we have them. How often have you desired the latest gadget, craved it, and after you have bought it found it quickly relegated to the sidelines as you more on to the next new thing? The same is true of knowledge and information - we always want what we're told we can't have. The injunction makes it forbidden knowledge so we know we must have it. If you knew (or know) who the actor or the comedian is you would know it would have gone the same way as the story from March which I referred to earlier. In fact the actor/comedian story only came about allegedly because he was so obscure and insecure he said to a prostitute the immortal line "do you know who I am?" Daniel Solove knew about this in 2007 when he wrote his book The Future of Reputation: Gossip, Rumour and Privacy on the Internet

Solove noted that one of the core activities of humans is gossip. We all do it. Stereotypically woman gossip in the hairdressers or over coffee while men gossip in the pub. Today we have built a global gossip engine (it's not the World Wide Web more the Global Gossip Gadget. We continually update Facebook with comments about people we know, we Tweet things we know (or think we know - see below), we Blog, we Comment, we Gossip. The problem is gossip is not based upon factual knowledge but about innuendo and rumour, this causes potentially much greater harm than simple facts. The danger is that innocent parties get harmed.

Why are super-injunctions harmful to privacy?

On Sunday a new Twitter account was opened by someone who thought they knew all the facts about current injunctions. I can't tell you who they are or the address of the account. I can't tell you what they said but it looks something like this:
The Redacted Twitter Feed

The problem is they didn't know it all and an innocent party was dragged in. They claimed (and I can report this) that the TV personality caught in embarrassing photographs with another celebrity was Jeremy Clarkson with Jemima Khan. This is not true yet two innocent people have been caught up in a glare of publicity because a third party wishes to deflect publicity from themselves. As Khan tweeted yesterday:
I hope the people who made up this story realise that my sons will be bullied at school because of it. Plus I'm getting vile hate tweets.
This is the crux of the problem. The injunction has not protected the net privacy of everyone involved instead it had moved the privacy invasion from one person to another - it is a re-allocation of the effect and as there is more interest in the story due to the "illicit nature" of the story the net invasion of privacy is magnified. One person (who I cannot name for legal reasons) is protected (for the moment eventually the truth will out) while another has her private life unnecessarily infringed to harmful effect for her and her family. Why should Jemima Khan suffer because another celebrity wants to protect his family? The question therefore is "should judges take into account the possible effects on third parties before awarding such injunctions?"

Jemima Khan is not the only one to suffer. The "well known actor" who visited prostitute Helen Wood and who "kissed like a virgin" has been named extensively on Twitter and Wikipedia. Despite this there are still today people who are falsely naming him to be Ewan McGregor. This was due to the way the media reported the story at the time. They said he was a world famous movie star who was very protective of his family who had done TV work. This led to rumour sites like this one recklessly suggesting Ewan McGregor as he was one of the few internationally famous UK actors who fitted the bill. It never was Ewan McGregor yet his family have been subject to a month of rumour and speculation and because he is famously protective of his private life unlike Jemima Khan he has stayed quiet - which for some people mean it must be true. Another family's privacy destroyed by an injunction.

Of course these two are not the only two affected. Also harmed have been Gabby Logan and Alan Shearer.

I'm going to finish with words I never thought I would write. I agree with much of what Steven Glover has written in the Daily Mail.  I do not agree though that what I argue should be a green light for the mainstream media to do what they like. Bizarrely I may be arguing for super-injunctions over injunctions as if we are never aware of the injunction there is no gossip. The problem is these types of injunctions are rarely watertight and once their existence becomes known the harm to others begins. You cannot ban gossip and gossip based on incomplete knowledge will almost always harm innocent parties. Judges need to consider this (a) in decising whether to grant an injunction and (b) deciding what details about it may be reported.

NEWSFLASH: Osama Bin Laden Killed by American Operatives in Pakistan: Other News of the Weekend.

Tonight the PRESIDENT of the UNITED STATES OF AMERICA (POTUS) announced that the CIA in co-ordination with the Pakistani Government located and killed OSAMA BIN LADEN Public Enemy number one (here and abroad.) That news is important and it is welcomed. I cannot say I am disappointed in anything other than the time it took to find him. May he never rest a day in eternity. I hope those 76 Virgin(ian)s he thought he would get are kicking the crap out of him right now in Hell. Congratulations to President Obama, Leon Panetta and the countless agents of the FBI CIA and of course of armed forces who have worked in hopes of this announcement, for bringing this terrorist to justice. No, it doesn't bring back our loved ones and it will never erase the misery of 9/11 or the days that followed it, but it does provide a sense of closure.

As for other News I found interesting, all of it pales in face of the news above. Just in case however you want to know what I thought was otherwise interesting, here are a couple of articles I wanted to write about:

I was going to use the blog tonight to talk about the futility of charging a nine year old child with murder for shaking a baby and how we need to separate the emotion of the parents losing an infant from the need to avenge a death with the "death" of another child when that child does something horrible.

I was also going to talk about the need for an "Expungement" Statute in NY given the fact that people arrested and convicted for even minor crimes can not get jobs anymore because of the Internet's ability to derail their job search with convictions. I was going to point to an article in the NY Times (semi subscription) which points out that people who have paid their debt to society long ago still cannot get work because of small or substantial indiscretion decades before.

Happy Law Day!!

May 1st ought to be a National Holiday. It is the day that America "celebrates" Law Day. Now some of you are saying "Tony what is 'Law Day'?" Well here is an excerpt from the Presidential Proclamation:

At the core of our Nation's values is our faith in the ideals of equality and justice under law. It is a belief embedded in our most cherished documents, and honored by President Eisenhower when he established Law Day in 1958 as "a day of national dedication to the principles of government under law." Each Law Day, we uphold our commitment to the rule of law and celebrate its protection of the freedoms we enjoy.

This year, we pay tribute to one of America's Founders and our second President, John Adams. As a young attorney in colonial Massachusetts, John Adams was asked to represent a British officer and eight British soldiers charged with firing into a crowd and killing five men in the Boston Massacre. In the face of mass public outcry and at great personal risk, he accepted the case and showed the world that America is a nation of laws and that a fair trial is the right of all people.

President Adams' legacy of dedication to fairness and the rights of the accused has been carried forward by members of the legal profession for more than two centuries. It is championed by those who represent the accused and exemplified by women and men who are devoted to securing equal rights for all, both in America and around the world.

I am working today on a trial that will begin on May 11, 2011. I am working on it as a Assigned Panel Lawyer. It is the way I participate in a tradition of a government by Law and not by tyranny. I won't earn much, I don't want to. I want to win this case just like I want to win everyone of the ones for which I am highly paid. I want this client to receive the fair trial to which he is entitled with a qualified lawyer representing his rights. Hence I will leave this post and return to work. It is in fact the best way I can think of to honor President John Adams and those other men of Law who helped "give birth" to our Nation.
Happy Law Day to you all.

Cloud Computing Regulation

Last Wednesday was the excellent one day conference on Cloud Computing: Legal, Organisational and Technological Issues, organised by the Commercial Law Research Unit at UWE, Bristol. There was a mixed audience of service providers, lawyers and academics. I presented a development of my active matrix theory designed to highlight the problems of gatekeeper control in cloud computing. The slides used are below.

Basically my argument is thus. We already know that there are powerful regulatory controllers in network regulation - viz Latour, Foucault, Luhmann etc. We also know the peculiar regulability of digital network systems - Lessig, De Hert etc. When one thinks about the uniquely powerful positions that gatekeeper nodes such as cloud computing providers put themselves in we must ask what costs will be extracted by them for the services they provide? 

Will they exert only economic costs? Unlikely for as other gatekeepers such as Facebook and Google have shown the value of data is quite alluring - so democratic, social and personal costs are likely in terms of data flows and data mining. The key is in the recognition of these gatekeepers and the peculiar role they play for they are likely to be key regulators in the future.

UPDATE: Media Cat v Adams

A lot has been written on the recent Media Cat v Adams decision (otherwise known as the ACS: Law decision). Few of those writing have actually read the decision in full so here is my take on it having done so - the decision may be read here .

Volume litigation is discussed in Chapter 10 (at 10.2.7) and only received three pages of coverage in the book. Since then much has happened, most of it fuelled by the actions of Andrew Crossley and ACS: Law. This blog has several entries on this - see Not a Good Week for Andrew Crossley and Volume Litigation Issues to catch up while I also wrote a longer piece on the activity for the Journal Computers and Law.  Throughout I bemoaned the lack of a full hearing on the activity, noting that whenever an action was defended the pursuit would be dropped. I'm pleased to say eventually that Railli Solicitors and Lawdit Solicitors (operated by the excellent Michael Coyle) finally forced a hearing. What happened next has been covered extensively by the media. ACS:Law ceased operations and Andrew Crossley sought to have the cases discontinued. He claimed he had been the target of death threats including bomb threats and criminal attacks including the famous Anonymous ACS:Law hack - interestingly on a related note the Information Commissioner last week found he need take no action against BT over leaked customer details handed over to ACS:Law - see here .The more cynical may observe that Andrew Crossley sought to discontinue the cases to avoid a precedent being set in case he ever wanted to return to this valuable cash cow. In any event HH Judge Birss was having none of it. He decided as the copyright holders were not in court the case had to continue and continue it did (and indeed does) and on the 8th of February he issued his judgement in the matter.

Media Cat v Adams

The most important part of HH Judge Birss's judgement is his views on the connection of IP addresses and infringers. As I have discussed before the fulcrum of the volume litigation model is to link an IP address to an individual user using a Norwich Pharmacal order. So the enforcement organisation (in this case Media Cat) capture IP addresses which they pass on to their legal representatives (here ACS:Law) who then seek a Norwich Pharamacal order against ISPs forcing them to reveal customer account details relating to that IP address. As has been pointed out by myself and others an IP address is though an address of a device not a person - you can identify a router but now who was using it. ACS:Law have claimed that the operator of a router has some form of "owner liability" to ensure that anyone using their router is not acting unlawfully. I have repeatedly pointed out that the Copyright, Designs and Patents Act has no such provision.

Judge Birss seems to have come down squarely on my interpretation of the CDPA. He notes (at paras [28-31]):

28. All the IP address identifies is an internet connection, which is likely today to be a wireless home broadband router.  All  Media CAT’s monitoring can identify is the person who has the contract with their ISP to have internet access.  Assuming a case in Media CAT’s favour that the IP address is indeed linked to wholesale infringements of the copyright in question (like the Polydor case), Media CAT do not know who did it and know that they do not know who did it.  The Particulars of Claim are pleaded in a way to address a problem which is very old and very well known in intellectual property cases (see e.g. The Saccharin Corp v Haines (1898) 15 RPC 344).  There the patentee had patents on all known methods of making saccharin and so, even though the patentee did not know how it was made, the defendant’s saccharin must be infringing one way or another.  Such saccharin type points arise  frequently when a claimant contends that despite a lack of information about some aspect of the matter, one way or another the defendant is liable for infringement.

29. Media CAT’s case on this is in two parts.  Of course Media CAT cannot know who actually used the P2P software, so in paragraph 3 of the Particulars of Claim they plead that the software was used either by the named defendant who was identified by the ISP, or by someone they authorised to use the internet connection or someone who gained access to the internet connection “due to the router having no or no adequate security”. Then in paragraph 5 the plea is that “in the premises” the defendant has by himself, or by allowing others to do so,  infringed.  So taken together these two paragraphs show that the Particulars of Claim is pleaded on the basis that one way or another the defendant must be liable for the infringement which is taking place.

30. But the argument is based on equating “allowing” and  “authorising” and on other points.   What if the defendant authorises another to use their internet connection in general and, unknown to them, the authorised  user uses P2P software and infringes copyright?  Does the act of authorising use of an internet connection turn the person doing the authorising into a person authorising the infringement within s16(2)?  I am not aware of a case with decides that question either. Then there is the question of  whether leaving an internet connection “unsecured” opens up the door to liability for infringement by others piggy backing on the connection unbeknownst to the owner. Finally what does “unsecured” mean?  Wireless routers have different levels of
security available and if the level of security is relevant to liability - where is the line to be drawn?  No case has  decided these issues but they are key to the claimant’s ability to solve the Saccharin problem and say – one way or another there is infringement here.

31. Notable again is the contrast between the letter of claim and the Particulars of Claim.  The letter simply asserts that the defendant has infringed “either directly yourself or by you authorising (inadvertently or otherwise) third parties to do the same”.  The letter makes no mention of unsecured internet connections.  It does not face up to the Saccharin point. Again the Particulars of Claim is rather more frank than the letter.
The Particulars of Claim faces up to the difficulty and tries to put a case which deals with it, but it all based on untested legal and factual propositions and issues of technology.

Where does this leave us. Well Judge Birss has to be careful. He cannot say the use of an IP address as a proxy for a user is not possible as he has not had a full hearing on the evidence, hence the carefully couched language. But reading between the lines he is saying it would have to be pretty spectacular evidence before he would even consider such a statement. He is also pointing out that ACS:Law is saying one thing in letters to alleged infringers and another in their statements of claim. This he seems to be suggesting is al least bad practice at worst bad faith.

He concludes his views on the practice of connecting IP addresses to claims at para. [91]:

91. First, the nature of the case itself raises many questions.  I have mentioned some of them above.  The issues are as follows:-

(i) Does the process of identifying an IP address in this way establish that any infringement of copyright has taken place by anyone related to that IP address at all.
(ii) Even if it is proof of infringement by somebody, merely identifying that an IP address has been involved with infringement then encounters the Saccharin problem.  It is not at all clear to  me that the person identified must be infringing one way or another.  The fact that someone may have infringed does not mean the particular named defendant has done so. Perhaps the holder of the account with the ISP has a duty to assist along the lines of a respondent to another Norwich Pharmacal order but that is very different from saying they
are infringing.

He goes on from this central point to, in a quite extraordinary judgement, attack the practice of volume litigation more generally. In paragraph [21] he discusses the menacing tactics of the volume litigation model:

21. Perhaps many, maybe more of the recipients of these letters have been squarely infringing the copyright of [the copyright holder] on  a major scale and know that they have been doing exactly that.  They may think £495 is a small price to pay and settled immediately. That is a matter for them.  However it is easy for seasoned lawyers to under-estimate the effect a letter of this kind could have on ordinary members of the public. This court’s office has had telephone calls from people in tears having received correspondence from ACS:Law on  behalf of Media CAT. Clearly a recipient of a letter like this needs to  take urgent and specialist legal advice.Obviously many people do not and find it very difficult to do so. Some people will be tempted to pay, regardless of whether they think they have actually done anything, simply because of the desire to avoid  embarrassment and publicity given that the allegation is about pornography. Others may take the view that it all looks and sounds very official and rather than conduct a legal fight they cannot afford, they will pay £495.  After all the letter refers to an order of the High Court which identified them in the first place. Lay members of the public will not know the intricacies of the Norwich Pharmacal jurisdiction. They will not appreciate that the court order is not based on a finding of infringement at all.

At paragraph [23] he attacks the claimants for trying to dispose of the actions without allowing the respondents the chance to be heard:

23. In any event over a period from August to November 2010 Media CAT commenced 27 cases before the Patents County Court for copyright infringement.  In November they applied for default judgment in 8 of them using a procedure almost unheard of in intellectual property cases called a request for judgment (RFJ).  It is withott notice to the defendant.  These came before me  on paper and were dealt with without a hearing.  On 1st December 2010 they were rejected (see  Media CAT v A [2010] EWPCC 017).  The judgment questioned whether the RFJ procedure was appropriate for complex copyright cases of this kind.  One feature of the RFJ procedure is that it is designed for claims for specified sums of money (and certain other claims) where no judicial decision is required (see The White Book at 12.0.2).

The coup de grace is delivered in three final withering comments:

At paragraph [91(iii)] he questions the level of damages claimed:

The damages claimed deserve scrutiny. If all that is proven is a single download then all that has been lost is one lost sale of one copy of a work. The sort of sum that might represent would surely be a small fraction of the £495 claimed and the majority of that sum must therefore be taken up with legal costs. If so, a serious question of proportionality arises but again this has not been tested. Clearly if the defendant has infringed on  a scale as in the Polydor case then would be a very different matter but there is no evidence of such infringement here.

At paragraph [99] he questions the whole tactics of Media Cat/ACS:Law

Media CAT and ACS:Law have a very real interest in avoiding public scrutiny of the cause of action because in parallel to the 26 court cases, a wholesale letter writing campaign is being conducted from which revenues are being generated.  This letter writing exercise is founded on the threat of legal proceedings such as the claims before this court.

Finally at paragraph [22] he highlights the unwillingness of the claimants to back up their letter writing campaign with legal claims:

One odd thing is that if tens of thousands of letters have been sent threatening legal action, where are all the legal actions? The Patents County Court is clearly an appropriate court to bring a claim against an individual for copyright infringement and yet there are only 27 cases pending.  Surely out of 10,000 letters it cannot be that only 27 recipients refused to pay.

Unfortunately this is unlikely to be the last we will see of the practice of volume litigation, for as Judge Birss noted himself (at [100])

The information annexed to Mr Batstone’s letter refers to ACS:Law having “recovered” £1 Million.  Whether that was right and even if so whether it was solely in relation to Media CAT or other file sharing cases I do not know.  Simple arithmetic shows that the sums involved in the Media CAT exercise must be considerable.10,000 letters for Media CAT claiming £495 each would still generate about £1 Million if 80% of the recipients refused to pay and only the 20% remainder did so.  Note that ACS:Law’s interest is specifically mentioned in the previous paragraph because of course they receive 65% of the revenues from the letter writing exercise.  In fact Media CAT’s financial interest is actually much less than that of ACS:Law.  Whether it was intended to or not, I cannot imagine a system better designed to create disincentives to test the issues in court.  Why take cases to court and test the assertions when one can just write more letters and collect payments from a proportion of the recipients?