Opinion and debate on the legal issues affecting IT, by international law firm Pinsent Masons Opinion and debate on the legal issues affecting IT, by international law firm Pinsent Masons Opinion and debate on the legal issues affecting IT, by international law firm Pinsent Masons

Wednesday, 30 January 2008

File sharing rows rumble on

Any record industry executive would have been weeping into his cornflakes today as he perused the newspapers. The European Court of Justice (ECJ) was reported everywhere as having handed victory in a battle to privacy activists and file-sharers by ruling that ISPs do not have to hand over subscriber details in file sharing or any other civil cases.

The problem is that these reports have missed the point. What the ECJ actually said was that national governments can, effectively, do what they like on the issue.

Therefore, if Spain wants to rule that file-sharer details can only be revealed in criminal cases, it can. However, if UK courts want to hold, as they do, that file-sharer details can be revealed in all cases, then that's fine too.

It all boils down to the slightly complicated question that the ECJ was asked. Telecoms firm Telefónica argued that Spanish law prevented it revealing user details except in criminal cases. Music rights-holders' group Promusicae, though, said that law was inconsistent with the EU directive protecting copyright.

The Spanish court asked the ECJ whether Spain was allowed to have a rule preventing disclosure in civil cases. The ECJ said that such a rule was okay. The ECJ did not say that all member States had to prevent disclosure in civil cases to protect privacy rights as has been reported.

The court, very even-handedly, said that the issue put two crucial rights in fundamental opposition: an internet user's right to privacy and a music producer's right to protect its copyright.

Each side in the argument had an entire EU directive on its side, and the ECJ was asked to choose between them. It didn't, instead telling EU nations that they could create their own laws provided they balanced the two rights properly.

Spain, then, was allowed to keep a law that said names can only be revealed in civil cases, as long as its law overall kept a proportional balance between the right to privacy and protection for copyright holders. And here's the nub of the issue, it is a criminal offence to host copyright-infringing material in Spain for profit or on a commercial scale, even if not for profit.

The music industry executive should be marginally happier now, but the one industry it could unsettle is the telecoms business. What practical effect will the ruling have in the hard world of commerce?

One potential effect is forum shopping.

UK music fans generally can't subscribe to ISPs in Spain, because Spanish ISPs don't lay cables along the streets of Britain or install kit in British telephone exchanges (and satellite broadband is an expensive solution for free downloads). But they might use a Spanish web host to store copyright-infringing files. Entire companies could relocate to countries that would not order names to be revealed in civil cases, to pick up this business, and countries that do reveal names, such as the UK, might find their ISP businesses suffering.

So what might be relief for the record industry executive might well become a headache for his counterpart in a telecoms firm. But probably only a minor headache.

Wednesday, 26 September 2007

Patently obvious

The US patent system is under fire from all sides. While open sourcers hate it just for existing and for granting philosophically distasteful tech monopolies to giant companies, big business attacks it for being too slow and backlogged, while other businesses claim that it awards patents too easily and broadly.

The giant organisation admits that it is in trouble: Commissioner for Patents John Doll told OUT-LAW Radio that if he closed the doors to new patent applications tomorrow it would be two and a half years before the current backlog is cleared.

What to do? Well the US Patents and Trademarks Office (USPTO) has taken a bold step. Kind of. It has embraced the mania of the day, the theory of the wisdom of crowds, and will attempt to harness all of our knowledge to help improve the quality of patents.

The new scheme relates to prior art, which is the name given to evidence that a patent application is not new, that someone had invented or patented something similar in the past.

The USPTO has signed up to a scheme invented at the New York Law School which throws open the search for prior art to the world. You can now look at a patent application online and submit anything you know of that would count as prior art and invalidate the patent application.

This is a fantastic idea, solving a number of problems. It reduces the workload of, and pressure on, beleaguered patent examiners by providing them with relevant, free information. It increases the likelihood that patent hoodwinkers will be caught, which in turn reduces future patent litigation, an expensive and time consuming process that has been the death knell of many a fine company.
Best of all, it does it in an open, transparent way which involves the technological community and gives them both responsibility and credit for the smooth operation of the system, while allowing the USPTO to stay firmly in charge.

There is, though, a problem. When I said that the USPTO has embraced the scheme, that was a lie. Their's is more of the kind of half-hug you give awkwardly at parties when you don't know someone that well.

They have signed up to the system, but only on a 12-month pilot, which is fair enough, and only for those who opt into the system.

There is a legal snag, you see. Third parties are barred by law from submitting prior art to the USPTO, except for in a very short window early on in the process. So participants in the trial have to waive their right not to have prior art submitted by other people.

Imagine that you are a wily inventor or purchaser of the rights to technology looking to slip in a quick patent application to put your proto-business on sound footing. You know that your application is maybe a little too broad, or a little too close to an existing one. But there are millions of patents out there and only one examiner with just 17 or 18 hours allocated to your application. What are the chances of them finding that one little patent from 20 years ago?

Are you going to sign up to the Peer-to-Patent system? No chance.

So the plan is a good one, and could radically improve the quality of an under-fire patent system. But if the full programme adopts the same mealy-mouthed approach and allows patent applicants to opt out, it will wither and die as only the least controversial applications will pass through its filtering system.

This project is designed for the controversial, the sneaky and the dishonest. Everyone's application should be forced through the system, otherwise it is a waste of the wisdom of an already tetchy crowd.


Thursday, 07 June 2007

Should you smile for Google's cameras?

Like a trigger-happy tourist, Google has shot almost every street in five US cities and added its pictures to what might be the world's biggest holiday album. But if Google ever starts shooting the streets of Europe, courts here could fight back.

Google Maps Street View is the latest service from the search giant. Vehicles with multi-lens cameras travelled the streets of San Francisco, New York, Las Vegas, Denver and Miami and snapped everything in their paths. The images were uploaded to Google Maps and now, when you're looking at a location in Google Maps that has been photographed, you can see the pictures. If you live in a featured city and you've been passed by a Google van or a car from its partner, Immersive Media, the cameras probably saw you too.

Privacy fears were first raised by New Yorker Mary Kalin-Casey. She told the Boing Boing blog that, when trying out Street View, she recognised her cat, Monty, through the window of her own home. She said that the experience made her shake (though she'd have more cause for alarm if the camera captured her Georgian silverware).

If you are caught on camera and complain to Google, Google will remove the pics. But that may not be enough for Europe's courts.

Our data protection regime lets us take holiday snaps, even of strangers, provided we're doing so for private purposes. But if we're taking snaps for commercial use, where individuals are identifiable, there is no such exemption. We need to notify the subjects, and that's hard for Google to do. Even a loudspeaker on top of the camera cars ("Hi, it's Google here, say 'cheese' everybody!") might not suffice.

The law sets extra requirements for so-called sensitive personal data: it demands explicit consent, not just notification. That means when taking pictures of someone leaving a church or sexual health clinic - which could reveal a religious belief or an illness - camera cars might need to pull over and start picking up signatures.

It's not just those who are identifiable and caught in the act that can give Google a tough time. We Europeans could ask Google to ensure that no picture of us appears in Google Maps in the first place.
The nature of this rule varies across Europe, but in the UK we have a right to prevent the display of an image that would cause substantial distress. All we have to do is send an email to Google asking that it does not display a picture of us: "Dear Google, I think your camera caught me in Hyde Park this lunch time canoodling with my wife's best friend. Please make sure I can't be seen in Google Maps because this may cause me substantial distress. I've attached a picture of what I look like." If Google refuses or ignores you, you can go to the Information Commissioner and ask him to enforce the right. If there's damage and distress, you can sue.

Street View on the streets of London? The risks are clear, but few would bet against Google giving it a shot.

Monday, 26 February 2007

Safeguarding the internet

Three men were jailed recently for plotting to rape two young sisters. The BBC reported that it was the first time that internet chat logs had been used to prove a charge of conspiracy to rape a child. Detective Constable Dave Adams told the BBC: "This case should act as a really stark warning that the internet is not a hiding place to plan and participate in criminal acts." He's right: a pub would better suit their ends because the conversation is unlikely to be recorded.

The intentions of David Beavan, Alan Hedgcock and Robert Myers only came to light because Beavan changed his mind and ratted on the other two. Had Beavan not walked into Bournemouth police station, a terrible crime may have followed. DC Adams's comments implied that the internet played some part in the detection and prevention of a terrible act. It didn't. It just made it easy to prove the intent of Beaven and the two men he named.

Meanwhile, Home Secretary John Reid said he may make paedophiles list their online identities on the Sex Offenders Register as part of his effort to "protect our children". Unlike moving house, a username or email address can be changed in about two minutes, so, again, it's difficult to see how this can make a real difference to detection and prevention of a crime.

Reid proposed that mechanisms would flag up anyone using a blacklisted identity on popular web sites used by kids. His plans risk giving misplaced comfort to parents who worry about their own children's use of the internet. There are established mechanisms for keeping kids out of web sites that prohibit under-18s, like credit card checks. These mechanisms are not infallible but it is far more difficult to keep adults out of sites for kids. That's a more important message for Reid to convey to parents.

Wednesday, 17 January 2007

Government web sites: simply super for citizens, but what about the IT sector?

Central government's transformational strategy has marked its first birthday with an annual report that says a cull of government web sites is taking place.  Of the multitude of 951 web sites originally available, nearly 100 have already been closed down and hundreds more are set to meet the same fate, to the extent that only 26 main sites have a guaranteed future alongside Whitehall's two 'super web sites': Directgov and Business Link which channel government information for individuals and businesses respectively.

The minister in charge of the transformational strategy is Pat McFadden whose responsibilities include eGovernment and the Central Office of Information (which runs the super sites).  There is a reallocation of information taking place due to the closure of sites with the two super sites taking on relevant information and transactions from the closed web sites, whilst redundant information will be deleted.  In this way, individuals and businesses can increasingly rely on a single gateway through which to access the web pages they need to use.

Directgov seems to be growing from strength to strength.  The site provides access to 11 central government departments and all 388 local authorities.  It was originally launched quietly in mid-2004 and did not attract much media attention, but  the government spent a reported £1.8m on a marketing campaign last March to bring the site into the public eye once it was up and running, and it now attracts almost 2.75 million visitors each month.

Unsurprisingly the drivers behind the mass shut-down are cost savings and the need to make information easier to find.  It has also been said that web site users are drawn to super sites in their search for information, which Directgov user statistics would seem to substantiate, and therefore this development is a logical step in web site evolution.  Mr McFadden expects that decisions made to date will result in operational efficiency and savings of up to £9m a year.

The question remains whether this transformation brings any good news for the IT sector. In the short term, work may be available for developers as the transition takes place, but what about the long term?  If indeed the theory of super sites taking over from smaller sites is proven to be true, it may be that less web site development work becomes available, albeit that super site work would probably be more lucrative.  It seems it could be an increasingly competitive environment in which to win public sector work.


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