29 May 2009

The Dark Side of Copyright

I've said on more than one occasion that I have serious misgivings about copyright, both in principle and in practice, especially given the way the law has been steadily expanded to outlaw tools for copying and the circumvention of copy protection, rather than just the act of copying itself.

A prime example of the less desirable aspects of copyright is being played out in Geneva at the UN’s World Intellectual Property Organisation, where a number of governments are attempting to block a treaty which would enable the import and export of books in digital formats which are usable by people with visual impairments [
1][2]. The fact that this move is also in effect anti-free trade makes it doubly annoying.

My position on copyright (and by the same token, patents) is fairly straight forward; I don’t believe you can treat ideas as property in the same way you can with material objects. It just doesn’t make sense to me; ideas aren’t discrete or scarce, so it’s impossible to say where one idea ends and another begins. If you were the first person to make a chair and I took the chair that you made, it’s possible to work out what I’ve done and to rectify the situation. On the other hand, if I see your chair and then later I go and make one of my own, there’s no way of knowing if that idea came to me because of seeing your chair, or if it came to me completely independently. It gets even more confusing if I see your chair and then go and make a sofa. Does the sofa count as a derivative work of your chair, or is it a completely separate idea?

That’s not to say that I believe people shouldn’t have any rights over their ideas. If you have an idea in your head, I believe that your right of self-ownership means that nobody else has any right to force you to reveal it. By extension, if you wanted to offer to reveal an idea to somebody on the condition that they sign a contract agreeing not to do x, y or z, that should be within your rights too, but, unlike copyright, that contract would not give you any rights over somebody who has not directly entered into an agreement with you.

As a property right, copyright doesn’t make sense, but when looked at as a state mediated bargain it looks more rational. In fact, that was the original justification used for copyright law; the principle was that, by giving authors a clear revenue stream, it would encourage more writing which would eventually fall into the public domain and thereby increase the general body of art and knowledge. The key is that the intention of the law was to create a general public benefit, not to enrich authors; the latter was just a means to achieve the former.

One of the key questions that should be asked of copyright, as with any state expenditure or privilege granting, is “does this deal create a clear public benefit?” If the answer is no, then the situation can’t be justified. If copyright laws put people in a position where they are legally prevented using new technologies to access information which would otherwise be inaccessible to them, then I don’t believe those laws stand up to the public benefit test and they need to be either heavily amended or abolished.

1.
http://www.boingboing.net/2009/05/29/usa-canada-and-the-e.html
2.
http://www.huffingtonpost.com/james-love/obama-joins-group-to-bloc_b_208693.html

28 May 2009

Expenses Overload

I think I've reached the stage where my capacity for MPs' expenses revelations has maxed out. I can see how the steady drip feeding of information gets more mileage out of the story for the press, but I'm just feeling bored by it. I suppose it's a sad comment on the situation that it doesn't have any shock value any more.

27 May 2009

Why I Don't Buy Apple Products

As grubby as Microsoft's monopolistic business practices are, I'm glad that it is they, rather than Apple, that hold the dominant market position on desktops and laptops. The way Apple uses its control over both the hardware and the software to exert an iron grip over its customers, using the law if necessary, sits very uneasily with me.

The prime example is the way the company has tried to keep total control of what software may and may not be run on an iPhone, using petty, draconian and contradictory rules. The latest casualty is an application which allows people to download books, which have entered the public domain, from Project Gutenberg [1]. Apple's justification for banning this application from iPhones is that some old books are a little bit rude. The fact that many of those books can be bought directly from Apple (or accessed through a web browser) makes me suspicious that this might have less to do with the morality of the content and more to do with protecting an income stream, by making it harder to get something for free rather than paying Apple for it. This comes hot on the heels of a similar issue with an application released by Nine Inch Nails, which was banned from the App Store because it allowed access to a song which contained some "foul language," a song which Apple is happy to sell through iTunes.

Apple's reputation is a perfect example of style over substance. When Microsoft behaves monopolistically or lobbies using FUD, it is, quite rightly, criticised, but when Apple adds ever greater levels of encryption to its iPods to limit what users can do with them, or threatens legal action when somebody tries to reverse engineer one of their products to make it work with other hardware, there is much less noise. When Apple has a dominant market position, such as with the iPod or iTunes, its conduct can be just as bad, if not worse, than Microsoft's, yet it suffers less because of its cuddlier branding.

The fact that the Government's Digital Britain Interim Report [2] held up the iPhone's locked-down, "you'll run what we say you can" approach as a model for others to follow should tell you all you need to know.

I'm a big fan of Free and Open Source Software and I switched from Windows to Ubuntu some time ago, because I didn't want to suffer Microsoft's attempts at vendor lock-in or the inability to know what the software is doing in the background, but Microsoft's flaws don't automatically make me view Apple as the lesser of two evils.

1. http://www.boingboing.net/2009/05/22/apple-says-no-projec.html
2. http://www.culture.gov.uk/what_we_do/broadcasting/5944.aspx

21 May 2009

The Police vs The Rule of Law

The circumstances and aftermath of the raid by Avon and Somerset Police on Jim Bates [1] should horrify anybody who sees any value in the Peelian Principles [2], as the actions of the police completely violate two of those principles:

• Police seek and preserve public favour not by catering to public opinion, but by constantly demonstrating absolute impartial service to the law.
• Police should always direct their action strictly towards their functions, and never appear to usurp the powers of the judiciary.

I recommend that you read the whole Register article to get the full background, which is quite messy and convoluted, but the essence of the situation is:

• The police carried out a raid and seized a large amount of material from a man's home.
• The man claimed the raid was unlawful.
• The High Court agreed and ordered the police to return the seized material.
• The Chief Constable refused.

If we are in a position where a senior figure, whose duty is to uphold the law, feels that he can disregard the law and effectively steal another person's property if he disagrees with the judgement of the courts, then we've got an extremely serious problem.

1. http://www.theregister.co.uk/2009/05/18/bates_public_interest
2. http://en.wikipedia.org/w/index.php?title=Peelian_Principles&oldid=285424607

Marvellous Doublethink on Surveillance.

From the report on surveillance by the House of Lords Select Committee on the Constitution [1]:

We recommend that the Government consider introducing a system of judicial oversight for surveillance carried out by public authorities and that individuals who have been made the subject of surveillance be informed of that surveillance, when completed, where no investigation might be prejudiced as a result.

That sounds perfectly reasonable to me. The requirement to disclose is something I’ve argued for in the past. The Government response said:

The Government believes that the current system strikes an appropriate balance between the need for operational effectiveness on the one hand, and safeguards necessary to protect privacy. Where individuals believe powers have been used inappropriately, they can take their case to the IPT [Investigatory Powers Tribunal]. If the Tribunal upholds a complaint it is required to notify the complainant and make a report to the Prime Minister. It may, if appropriate, quash any warrant or authorisation, order the destruction of relevant material or order compensation.

That raises an obvious question for me; how am I supposed to take a case to the IPT if I’m not told that I’ve been subject to surveillance?

1.
http://www.out-law.com/page-10029

20 May 2009

Locally Controlled Business Rates - I'm Still Not Keen

One of the reforms recommended by the MPs on the Central and Local Government Committee is to return of Business Rates to local authorities, rather than having it collected and redistributed fairly evenly by central government [1]. The more I think about this idea, the more I’m convinced that, as things stand, it is a bad idea and without major structural changes, it will do little to achieve the goal of decentralising funding from central government to local government.

If we lived in Spencean self-financing parishes [2] and had been in that position for a considerable amount of time, it might work, but we aren't in that situation. We have a huge proportion of our infrastructure financed centrally and the investment tends to get concentrated in a few areas. Having a nationally set Business Rate ensures that those areas which benefit from higher levels of investment pay more back in return when the value of business premises increases as a result.

If we suddenly switched to locally set and retained Business Rates, the areas which have enjoyed the greatest amount of centrally funded investment and currently tend to have higher rates would gain, while the areas which have enjoyed least investment would find their revenues reduced. As a result, I think it would be inevitable that central government would try to rebalance the situation through central grants, which would negate the whole purpose of the change.

There's only one way I can see a move towards locally retained Business Rates being sustainable without ongoing central adjustment:

• Before moving to locally retained Business Rates, regional disparities in infrastructure investment would have to be equalised, by investing more in those areas which have had least investment and/or privatising the operation of infrastructure such as motorways [3] so that the value isn't rolled up into land prices.

• After moving to locally retained Business Rates, all central government funding of infrastructure would have to stop. Any new investment would have to be financed directly by the local authority or, when the infrastructure services more than one area, financed by agreement between two or more local authorities.

1. http://news.bbc.co.uk/1/hi/uk/8058676.stm
2. http://plockett.blogspot.com/2009/03/forgotten-single-taxer.html
3. http://plockett.blogspot.com/2008/10/is-it-time-to-privatise-operation-of.html

Going Out with a Whimper

You could call this my anti-quote of the day. Michael Martin resigning as Speaker:

Since I came to this House thirty years ago I have always felt that the House is at its best when it is united [1]

A parliament only has any real purpose when it is disunited. The word parliament is derived from the French for a discussion and that is its whole purpose - thrashing out decisions by contrasting opposing viewpoints and having a battle of ideas. A parliament which is in total agreement on a subject adds nothing.

Martin seems to have completely misunderstood the public mood; so much of the contempt for the Commons is because of the seeming absence of dissenting voices when the expenses system was being exploited. There's a feeling that parliament was at its worse precisely because it was united.

1. http://www.bbc.co.uk/blogs/pm/2009/05/the_speaker_resigns.shtml

19 May 2009

A Poor Judgement

I'm always reticent to criticise the outcome of court cases, on the basis that the people in the courtroom probably had a lot more information available than I have looking in from the outside, but I’m going to make an exception for one recent case, because I believe it sets a precedent which is both wrong and dangerous. On 24th September 2008, James Jorgensen was killed when his bicycle was hit by a car driven by an unlicenced driver [1]. The driver was convicted of causing death by careless driving, but, when determining the sentence, the judge allowed the driver to put forward in mitigation the fact that Mr Jorgensen was not wearing a helmet.

The judge appears to have made no effort to determine whether or not wearing a helmet would have made any difference to the injuries sustained in this particular case. Deciding that the victim was somehow at fault because he wasn't wearing a particular item of clothing (which he wasn't legally obliged to), without determining what difference that piece of clothing would have made is profoundly unjust. It gives me the impression that the judge was implying that the victim was somehow "asking for it."

Going beyond the specifics of this case, the effectiveness of cycle helmets in general is still unproven, so I don't see why there should be any general presumption in favour of wearing them. In fact, as I've hinted previously [2], risk compensation effects could result in cyclists being at greater risk as a result of wearing a helmet. To be fair to the judge, this presumption is prompted by the Highway Code which says [3]:

Clothing. You should wear

• a cycle helmet which conforms to current regulations, is the correct size and securely fastened


I'm very uncomfortable with these pseudo-rules contained within the Highway Code. As they are not legal requirements, they will rarely face the same level of scrutiny as laws when they are drafted, but their status as part of the Highway Code allows them to be used to argue contributory negligence when they are not followed. In fact, the Road Traffic Act says [4]:

A failure on the part of a person to observe a provision of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind but any such failure may in any proceedings be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings.

The idea that failing to follow advice in the Highway Code automatically makes you partially liable creates a number of bizarre situations. Take this section of the Highway Code directed at drivers:

Before setting off. You should ensure that

• you have planned your route and allowed sufficient time


So, if you were driving along without a thoroughly planned route and a car pulled out of a side road into the side of your car, the driver could argue that his liability should be reduced because you didn’t have a pre-planned route.

Or, consider this section of the Highway Code directed at pedestrians:

Pavements (including any path along the side of a road) should be used if provided. Where possible, avoid being next to the kerb with your back to the traffic

So, if you were walking along the pavement on the left hand side of the road close to the kerb and a car mounted the pavement and ploughed into you, the driver could argue that his liability should be reduced because you should have been walking on the pavement on the other side of the road facing the traffic.

I don’t think these are desirable situations and as a first step, I think two changes need to be made to create a more sensible system:

1. Change the law so that failing to follow an instruction in the Highway Code makes you partly liable for an incident only when following the instruction would have prevented the incident or made the incident less severe.

2. For the elements of the Highway Code which aren’t restatements of laws (i.e. those elements which don’t begin you must or you must not), create two separate classes, instructions (you should) and advice (you might like to consider), with the latter being completely optional and the default for any action where the benefits are unclear.

1. http://www.sunderlandecho.com/news/Driver-who-killed-pedal-cyclist.5251053.jp
2. http://plockett.blogspot.com/2009/02/mother-of-all-nanny-statists-and-seat.html
3. http://www.direct.gov.uk/en/TravelAndTransport/Highwaycode/DG_069837
4. http://www.opsi.gov.uk/acts/acts1988/plain/ukpga_19880052_en

11 May 2009

You've Picked the Wrong City, Jacqui

I have to admit that I'm pleased that the government's decided to trial ID cards in my home city of Manchester, because it's almost certain to result in failure.

If this had happened two or three years ago, I might have been a bit more concerned; at the time, there appeared to be more people in favour of than against ID cards, with a lot of people sat on the fence who weren't especially averse to the idea. Now it's a different matter; the catalogue of government data losses have all but silenced the cries of "nothing to hide, nothing to fear" and the majority seem to have moved towards opposing the scheme, firstly because of data insecurity and more recently, because of the cost.

Not only is there now a general sense of animosity towards the scheme within Manchester, the city is a particularly unsuitable candidate for the host of a successful trial, as there is a sense within the area that it is treated as an easy guinea pig by the government, because it views the city council is a safe Labour stronghold. This feeling is particularly strong at the moment, following the congestion charge referendum, so the tolerance within the city towards being used as a testing ground for another government scheme is low.

The selling job that's being carried out isn't exactly filling me with a sense of dread either. Take this comment from James Hall, chief executive of the Identity and Passport Service:

“Many people currently use their passport for such purposes [confirming your identity] but it is not a terribly convenient method, and 300,000 of them are either lost or stolen every year.”

In that context, the inconvenience of a passport is part of its beauty; it means that people only carry it when they need to and put it somewhere more secure the rest of the time. Put people in a position where they use an ID card which they are likely to be carrying round more frequently and I would expect far more than 300,000 of them to be lost or stolen. Given that the DVLA estimated that in 2008-09, 980,000 driving licences would be lost, stolen or destroyed [1], the figures for passports look comparatively good.

1. http://www.dvla.gov.uk/media/pdf/consultations/fees_consultation_2007.pdf