27 March 2010

All your mail are belong to us

The ever insightful Henry Porter, in the Guardian, dissects the government's attempts to enable the interception of mail by tax inspectors without the recipient being made aware.

Given the government's desire to monitor all electronic communications, it was only a matter of time before they started to apply the same approach to other, lower tech forms of communication.

19 March 2010

Liberty and (Intellectual) Property

I've been involved in a few debates recently about whether or not "intellectual property" is compatible with a libertarian system of maximal personal freedom.  My answer is yes and no!  The reason for that inconclusive answer is the use of the term "intellectual property."  It is essentially a propaganda term which covers a range of rights/privileges, some of which are compatible with full liberty and some of which aren't, so unless you are specific about what you mean by "intellectual property," you can't reach a definitive conclusion.

For copyright and patents, which seem to be the main bones of contention, I think the answer is no, because, for a property right to be compatible with full liberty, it has to be granted over a rivalrous good.  My reasoning is thus:

If you take rightful liberty to be as described by Jefferson or, as per this Herbert Spencer quote:
every man may claim the fullest liberty to exercise his faculties compatible with the possession of like liberty by every other man.
it should be fairly clear that, in those circumstances, unless I've personally agreed otherwise, I may claim the right to use an idea, concept, expression or other non-rivalous intangible good that I am aware of, because, in doing so, I do not prevent you doing likewise.

With rivalrous goods, which in the main are tangible goods, the same does not apply.  If we both want to wear a coat at the same time, we can't.  Physical reality makes that impossible.  Therefore, an appeal to maximal liberty doesn't enable us to claim the right to wear the coat, because neither of us can wear it without infringing the like freedom of the other.  In essence, property rights over tangible goods exist outside the framework of maximal liberty.  There are any number of ways in which those property rights could be allocated, many of which will be inequitable, unjust or downright stupid, but the crucial thing for the purpose of this argument is that, however you've come to acquire it, your property right over a rivalrous good doesn't inherently infringe my rightful liberty, because it is impossible for us to both to enjoy the freedom to use the good simultaneously.

Which brings me back to my initial answer of "yes and no."  The term "intellectual property" is applied to a range of intangibles, but it isn't tangibility which makes a property right compatible with maximal liberty, but rivalry, so any intangible which is impossible for two people to use simultaneous could have property rights applied to it without violating maximal liberty.  One area where this arguably could be the case is internet domain names, as it is not possible for two websites to share the same name at the same time.

The moral of the story is, if want to reach a meaningful conclusion about "intellectual property," don't use that term; talk about the specific right/privilege you're addressing.

17 March 2010

Bull of the Day

From the latest bit of copyright lobby propaganda:
Agnete Haaland, the president of the International Actors' Federation, which supports the research, said that education was key to tackling piracy.

"We should change the word piracy," she said.

"To me, piracy is something adventurous, it makes you think about Johnny Depp.[1]

"But we're talking about a criminal act.[2] We're talking about making it impossible to make a living from what you do.[3]"
[1] We've currently got a propaganda term for copyright infringement which equates it to attacking a ship on the high-seas, but the copyright maximalist lobby appears to have gone so utterly insane that they believe that comparing somebody who copies a CD to a Kalashnikov toting hostage taker doesn't do justice to the heinous nature of their act. Maybe calling it copyright genocide might suit them better.

[2] In general, copyright infringement is a civil, not a criminal matter.

[3] Given that actors have been making a living from stage work since time immemorial, I think "impossible" is pushing it a bit.

10 March 2010

The Big Guns

The letter sent by the Open Rights Group and published in the FT today, spelling out objections to the web-blocking amendment to the Digital Economy Bill, is well reasoned and no more than should really be expected.

What did surprise me is the list of signatories. Somebody's done a fantastic job of rounding up some big hitters to put their name to it.

05 March 2010

Lord Clement-Jones - Legislating on Copyright without Understanding it.

Having followed the progress of the train-wreck that is the Digital Economy Bill, there has been so much about it that is truly awful, that I've so far been unable to pick out any one bit to comment on. The replacement of the dreadful enabling act Clause 17 with a dreadful Tory and Lib-Dem amendment which creates a framework for web censorship under the pretence of preventing copyright infringement, has given me a kick-start, mostly because of this section of an interview conducted by ZDNET with Lord Clement-Jones, the Lib Dem peer who put forward the amendment:
Question from ZDNET: Some people have drawn an analogy with UK libel laws, where super-injunctions sometimes have a chilling effect on the media. Will this not also cause self-censorship in the face of expensive legal action, in this case by ISPs?

Answer from Clement-Jones: This is completely different. Libel law is often a matter of opinion. Sometimes there are super-injunctions made, as with [John] Terry, which are often designed to gag free speech.

This is about the protection of legitimate rights. It is perfectly easily establishable whether there are rights attached to a particular copyright owner.
Of course, what he says is utterly disingenuous. Copyright law is often a matter of opinon, just as libel law is. Take this posting as an example. I've reproduced an extract from the ZDNET article above. ZDNET holds the copyright on that article, so I have reproduced, without seeking permission, something on which somebody else holds the copyright. So, does that mean I have infringed copyright? No. It isn't quite that straight-forward. UK law grants fair dealing rights, including:
Fair dealing with a work for the purpose of criticism or review, of that or another work, or of a performance of a work, does not infringe copyright in the work, provided it is accompanied by a sufficient acknowledgement, and provided the work has actually been made available to the public.
Any copyright law not allowing that sort of use would be absurd beyond belief. It would effectively outlaw debate. No view could be subject to effective challenge, as the person expressing the view could claim total control over the use of their words and take legal action against anyone repeating any portion of them.

This is where opinion and judgement comes in, because there will always be a point at which fair dealing under the law becomes copying other than for the purpose of criticism or review. My quoted section above is, I believe, clearly fair dealing. On the other hand, if I put a full copy of a film on here and accompanied it with a review along the lines of "I like this film," then, even though I have reviewed the film, I think it would be hard to argue that my full reproduction of the film is fair dealing for the purpose of review. Between those two points, there will be a range of possibilities and where fair dealing stops along that continuum will always be a judgement call. The mere presence of material on which somebody else holds the copyright is not enough to declare material infringing, in spite of what Clement-Jones implies.

So, it appears that Clement-Jones either doesn't understand the issue he is legislating on, or he is being dishonest about it. Either way, his comments are a disgrace.

This example highlights why a court of law is the only place where material should be declared to be infringing copyright and any subsequent action taken. If the burden is put on ISPs and they are made liable for failing to stop any infringement which they have been informed of, there will be two effects. Firstly, there will be no opportunity for a fair trial and secondly, ISPs will naturally avoid legal risk by ignoring fair dealing considerations and taking down anything containing quoted material. Online fair dealing and the open debate which goes with it will be killed.

04 March 2010

The Supermajority

One of the most significant problems with the government over the last decade has been its legislative diarrhoea. Legislation has been enacted and amended at an astonishing rate, prompting the editors of the 2009 Archbold Handbook to add the following preface:
It has been a recurring theme of the preface to this work that there is far too much criminal legislation. The willingness of the Labour Government to continue its practice of legislating by trial and error has shown no signs of abating even in its eleventh year in office ... The state of the criminal statute book is a disgrace. The Criminal Justice and Immigration Act 2008 is the usual hotchpotch of measures, with no theme, with much of the detail tucked away from close scrutiny in the schedules, and consisting in large part of textual amendment to earlier legislation. Much of the amendment is by way of undoing this Government's earlier legislation.
I've been considering if there is any way of avoiding such a situation. One posibility I've been mulling over is the use of supermajorities. Here's one idea:

Require the support of two-thirds of those in parliament before legislation is enacted, but allow legislation to be repealed with a simple majority.

Some of the benefits I would envisage would be:
  • Making it easier to repeal legislation than enact it would hopefully thin out the statute book, making the law easier to understand.
  • Making it harder to enact legislation would slow down the rapid changes in law which have been occuring.
  • Requiring broader support for new legislation would force governments to seek wider input from across parliament, producing more widely considered legislation.
  • Having legislation which has wider support would reduce the tendency for governments to amend it when power changes hands, producing a more stable and predictable body of legislation.
Of course, one downside is that it could result in parties deliberately blocking legislation for party political reasons, but hopefully, such actions would be limited by the fact that a failure to operate a working government would begin to reflect badly on all involved, not just the largest party. In any case, I would still tend to prefer too little legislation than too much.

Are there any other major down sides I've missed?

02 March 2010

Quote of the Day

From Bill Thompson on the BBC Website:
This has got to stop. We have to say "enough is enough" to those who hold copyrights in songs and images and words and videos. We must refuse to remake the digital world in order to serve only their interests.
The piece as a whole is simple, insightful and well worth a read.