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Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

Assault on privacy online continues

Pretty gruesome stuff happening. This is old news:

The ongoing Google/YouTube-Viacom litigation has now officially spilled over to users with a court order requiring Google to turn over massive amounts of user data to Viacom. If the data is actually released, the consequences could be far more serious than the 2006 AOL Search debacle.

But this not so. And happening via backdoor of telecoms regulation.

The Telecoms Package (Paquet Telecom) is a review of European telecoms law. [...] buried within it, deep in the detail, are important legal changes that relate to enforcement of copyright. These changes are a threat to civil liberties and risk undermining the entire structure of Internet, jeopardising businesses and cultural diversity.

The bottom line is that changes to telecoms regulations are needed before EU member states can bring in the so-called “3 strikes” measures – also known as “graduated response” – of which France is leading the way, but other governments, notably the UK, are considering whether to follow. A swathe of amendments have been incorporated at the instigation of entertainment industry lobbying. These amendments are aimed at bringing an end to free downloading. They also bring with them the risk of an unchecked corporate censorship of the Internet, with a host of unanswered questions relating to the legal oversight and administration.

The Telecoms Package is currently in the committee stages of the European Parliament, with a plenary vote due on 1st or 2nd September. This does not leave much time for public debate, and it reminds me of the rushed passage of the data retention directive (see Data Retention on this site). It is, if you like, regulation by stealth.

These two items have in common the attempt to undermine the infrastructure of the net/web by controlling those who provide or maintain it. Not good.

24 comments to Assault on privacy online continues

  • Ian B

    Personally, the only thing that surprises me is that the internet has stayed so free for so long- but we can’t credit governments for that, it’s simply that the nature of the technology has been something their tiny brains have had trouble grasping. Once it became a widespread commercial technology, its evisceration became inevitable.

    It was all fun while it lasted. Sigh.

  • Michael Staab

    It is noteworthy that samizdata is an example of why such attempts at censorship are unsuccessful and will remain so.
    That being said, incredulity is my reaction that the net has remained as free as it is thus far. Freedom is feared by those who care nothing for their lives. They fear that you actually do, and seek to prevent you from understanding that fact.

  • Simon Jester

    The Telecom Packet is even worse than it appears. The Devil’s Kitchen discusses the fact that governments will be able to decide which software can be used on the web.

  • Ian B

    Funnily, I edited out of my reply a paragraph discussing the inevitable, erm, expensification of the internets which I expect to arrive in due course. As with standard regulatory bureaucracy, they’ll start erecting entry barriers. THe software thing is an example of that. Software creators will find their software is illegal unless it goes through an expensive bureaucratic certification procedure. I expect the same for websites too. It’ll be made practicably impossible for people without significant resources to own their own websites, since they’ll have to be certified with bureaucracy. The days of stumping a few quid for a .com and a few quid for hosting will simply disappear, to be replaced by a lengthy and costly procedure which will be beyond most individuals and small companies. Thus nicely consolidating the web’s space into the hands of bigger businesses, and the software on it into the hands of bigger businesses too.

    Anyone who thinks censorship is “impossible” and that the bastards can’t impose every bit as much control as they like is I think being extremely naive. Technology cannot save a people from malign lawmakers.

  • ian

    Perhaps we will see a return to the old bulletin board networks, unless they come up with some way of making the sending of data over the phone lines subject to the same regulation.

  • Ian B

    It’s a safe bet that “Internet” will mean any electronic communications over the public network. Anyway, hopes of circumventing this kind of government interference with BBS’s/private networks, encryption and such miss the point; the key to the internet is its ubiquity and ease of access.

  • qaqwex

    What is very worrying is that far more personal details than your you-tube habits are being handed to the US Authorites by the EU in the form of airline passenger data. The You-tube case seems to have established that if a private US company wants the personal data of Europeans then all they have to do is find a tame judge in one of the 50 states who will demand it is handed over. I have long decided that the US will have to do without my tourist and business dollar. That seems quite a common attitude amongst my friends and collegues as well.

  • Which will just insure that those who still want to communicate freely will just find other means — toothing, satellites to data havens, etc. The more they try, the more it will run through their fingers.

    And let’s see some massive protests over this. Why aren’t people with torches and pitchforks outside Viacom’s offices now?

  • ian

    Ian B

    BBS systems etc may not have the ease of use of the Interwebs, but they proved remarkably effective in South Africa during apartheid – to the extent that numerous church buildings housing BBS nodes were subjected to arson attacks.

    Samizdat were not as good as the original books either, but they worked well enough. This is actually a good parallel – trying to control access to the internet is like the Soviets controlling access to copiers.

  • Ian B

    Ian, I understand that. However such systems are only going to be used by cabals of highly motivated “evaders” and are no use in a more general sense regarding freedom of communication which is what concerns me, at least. The great boon of the internet is that it at a stroke created a massive free speech opportunity for everyone with a modem and a PC and we have all benefitted from that enormously. For really the first time in history anyone (at least in the wealthy world) could for minimal outlay speak to the world. Ring fenced systems- BBS’s or encrypted sandboxes will only speak to the few. If people have to start speaking in secret code, only those who are already in the secret group can gain access. It’s an entirely different thing. And we do need to remember that these “off-net” systems will have to be kept effectively secret from the authorities, a difficult thing to do, since simply running one will be breaking the law and admitting you’re up to no good (from their point of view), just as sending encrypted messages is a big red flag that you’re being naughty.

    On a different point; one of the motivations for this, or at least excuses, is copyright/intellectual property protection. What do other libertarians feel about copyright, patents and intellectual property? On the one hand, it’s not very libertarian for governments to collude with creators and inventors to grant state supported monopolies and control over IP and tell people what they may or may not do with something already purchased. OTOH, without copyright or patenting, people who have not invested in creation of a product gain a massive advantage over creators and inventors thus discouraging creation and invention. In the modern world when IP can be copied effectively for free to the detriment of writers, film makers and, heh, rude cartoonists, what is the best solution?

    (N.B. if anyone answers this, please don’t waste time with “creators must make their money doing other things e.g. gigs or print publishing” type replies. Assume the creator needs to make money from the actual work at risk from copying. You can’t give away a free sci-fi blockbuster movie then tour village halls performing it live.)

  • Midwesterner

    I am about as strong in the IP rights direction as anyone here. The people who claim to own anymore of the rights to a piece of IP than the seller agreed to sell them are in effect saying once you buy a piece of paper with a some writing on it, you have purchased the right to reproduce it. That would kind of make personal signatures useless, wouldn’t it?

    The real danger I see in this area of property protection is a synergy between the producers of financially valuable IP and the wannabe internet censors. I hope nobody here believes the left has suddenly developed a passion for protecting property rights.

    The rights based argument that must be used here is the ‘width of the net’ that is cast to prevent IP theft. That law may not in any noticeable way impinge the rights of non-thieves. It must act only against the thieves.

    The law may not be allowed to for example, ban walking to stop trespassing. A trespassed party may make the point that nobody ever trespasses on his lawn with a car, therefor anybody who wants to move about must buy a car. Although this is obviously an absurd expectation, it is the same argument that is being made to require the use of certain software.

    The way in which a subset of people, even a large subset, uses a fundamental right like walking or talking, cannot justify banning walking or talking. It actually is incumbent on IP theft victims to prosecute the possessors of stolen property, not ban capabilities which might be useful for stealing it.

  • ian

    Ian B

    I accept all of that – I suspect I am just being gloomy about the prospects.

    Midwesterner

    It actually is incumbent on IP theft victims to prosecute the possessors of stolen property, not ban capabilities which might be useful for stealing it.

    Absolutely!!

  • Ian B

    Here’s a question. My grandfather was a good amateur carpenter, and in the early 60s he made a perfect copy of an expensive coffee table my mother wanted as a present for his newlywed daughter. Had he violated the original manufacturers/designer’s intellectual property? Would it be any different if he’d manufactured copies of this design and sold them?

    On what basis do we decide intellectual ownership as libertarians? On what “natural justice” basis does a software manufacturer tell his customers how many PCs they can install the software on?

    I am myself of course dependent on intellectual property laws as an artist. But what is the fundamental justification for them, and are there better solutions that state enforced copyrights and patents?

  • Ian: when you display your creation in public (say a coffee table), you transfer the image of that creation to the people who see it. Now every person that saw it, is in possession of that image. They don’t own it yet, only possess it. They may presume that they actually own it, unless you made it clear that they don’t (just as if you’d have given me some money, and never said that you want it back). Ideally that table should have had a clear sign displayed, making it clear that that was an original design, and it may not be reproduced without the explicit consent of the designer. In the same way, a software manufacturer should make it very clear to the potential buyers before the purchase that there are conditions attached to the purchase. These conditions may be whatever the manufacturer wants, however absurd. If I don’t like it, I am free to pass.

  • Midwesterner

    Ian B,

    IANAL, so this is just a layman’s opinion.

    No. Not unless he also forged the original maker’s name to it and that person or any of their heirs or assigns choose to take action.

    The other case I can think of is if the coffee table contained any patented, trademarked or copyrighted features that were still under protection. At the tables apparent age, you can pretty well rule out patents so that would mean only trademark or copyright (and design patent?) issues.

    An example of a design that under certain circumstance may not be duplicated is Volvo’s diagonal sash.

    Of course, anybody can bring action for anything it seems, but I think this approximately reflects how it would probably be decided under US law.

    Attempting to resell products using the IP are much more likely to be problematic than copies made for personal use. Although there have been some amazingly ridiculous claims pursued by companies. I seem to recall Ford attempting to prevent hotrodded versions of their products appearing in a calendar featuring custom hotrods.

    JM2Cs

    I just saw Alisa’s during preview. I don’t see any conflict between our two perspectives.

  • As to patents and copyrights, the way I see it, the only thing they do is certify the originality of the design/artistic expression. I don’t see why it necessarily has to be mandated by governments, and why it cannnot be certified by a private agency.

  • Mid: no, no conflict, (no surprise either:-)).

  • Well, as a creature of the web, I came to understand that copyright, IP and patents are failing both creators and those who benefit from creativity.

    On a more fundamental issue of property rights, my thoughts are going this direction:

    Property rights are indeed an important part of capitalist economies, and we are supporters of property rights — but only for things where property actually makes sense and is necessary. The whole reason why property rights exist in the first place is to manage the efficient allocation of scarce resources — that is to make it clear who controls a specific scarce resource. Property rights don’t make much sense when a resource isn’t scarce, because there need not be any question of how to best allocate it, since anyone who wants it can have it. In those cases, adding property rights actually makes the market less efficient by limiting the allocation.

    That has certainly been my experience of property rights in a networked environment of the web.

  • Ian B

    Adriana, I don’t think that answers the question in a practical sense. I’m uneasy as a libertarian about relying on state imposed property rights- copyright- but at the moment it’s the only mechanism creatives have. The problem for me with the above quotation, as with other similar statements, is they are incomplete. We can look at supply and demand, but there is another factor which is neither of those which probably has a proper economic term I don’t know so I’ll call it genesis.

    Once an intellectual product has been created, it can indeed be duplicated infinitely. Since supply is infinite the price drops to zero. So clearly anyone should be able to have one for free and anything which stops that is restricting the market- “limiting the allocation”. But nonetheless the essential genesis stage- without which there is no supply at all, costs money. My comic strip costs me a full month’s work per issue. A movie costs tens of millions of groats. If the price of the end product is zero, there is no point producing it. Nobody has any reason to commit to the genesis of new intellectual property and all that is left is a vanity press.

    I think that doesn’t seem to be a problem to many commentators, bloggers etc who are often effectively a vanity press anyway, but then the production costs of writing an article are trivial. Production costs of most other media are non-trivial. Supply and demand doesn’t give an answer here. It simply is inadequate since it doesn’t incorporate the third “genesis” factor at all. Which is why patents and copyright were developed- they add that factor in. We can’t just handwave that away. IP rights in a simple supply/demand analysis appear to make the market less efficient, but that’s to ignore the fact that without them (or some means of producer compensation) there is no market at all. Incentive having dropped into negative figures, you get an infinite supply of nothing**.

    **Unless fanfilms, slash fic*** and linux**** are your thing.

    ***Sam bent down over Frodo, whose once damask cheeks were now pale and quivering with exhaustion and tremulous desire. His breath coming in gasps, Frodo begged the husky hobbit for release. “I need you!” he gasped. “Sam, my ring is yours! Take it now!”

    ****Linux doesn’t count because the people who use it are the same people who write it. Not true of media in general.

  • Midwesterner

    Adriana,

    My thoughts are going in a very different direction and on very different grounds. I do not believe property rights have anything whatsoever with making society more efficient, although many of the legal cases use that rationalization. They are about self ownership and the freedom to enter into contracts with others.

    While it is reasonable to argue details and implementation, I think the basic premise of all property rights is inextricable from any individualist/libertarian platform.

    Let’s say I have a secret (maybe a song I wrote that nobody else has ever heard). I have the right to keep that secret. I also have the right to extract promises from anybody who wants me to share my secret song with them. Either one of us, teller or listener, can either accept or reject the terms. My terms for sharing my secret are that you may not share it with anybody else without my permission.

    Copyright law is a legal convenience to facilitate the widespread sharing of secrets without requiring a written contract including a non-disclosure agreement which would require each person hearing my secret from letting anyone who didn’t sign a contract hear it.

    Do we really want to either (A) forbid contracts for the release of secrets, or (B) permit prosecutions of everyone who lets someone overhear their stereo and award damages equal to the economic loss that negligence caused?

    Placing property rights in the context of the common good, which is what it appears to me that link was basing their opinions on, always scares the crap out of me. Intellectual property is entirely about the right to keep secrets and share them on a contractually defined basis.

    I believe the current system while containing many procedural flaws, is fundamentally sound in using the method of declaring IP to be visible to others but not in the public domain, much as real property is visible but still privately owned. People who make the claim that simply by hearing something without a contract entitles them to treat it as their own are often have that attitude towards other forms of personal property. They are the people that claim that since they are allowed to walk into a pub, they are entitled to ban smoking in that pub.

    Access to something, whether physical or mental, does not grant ownership rights or perpetual access unless the owner extends them freely.

    At least that is where my opinion is rather heavily leaning right now. I hope you give very serious thought to whether you really want to subscribe to the ‘common good’ justification for recognizing property. They said:

    The whole reason why property rights exist in the first place is to manage the efficient allocation of scarce resources — that is to make it clear who controls a specific scarce resource.

    That is a pure ‘common good’ foundation. It is not a coincidence that they found themselves unable to use the word ‘owns’ and had to substitute ‘controls’. In the secondary link they make the statement “The purpose of property is to better manage the allocation of scarce resources.” These guys don’t believe in any property. Only efficient and better managed “allocation” of “resources”.

  • Laird

    I think Midwesterner is exactly right.

    It might be possible (although I would reject it) to make a defensible “common good”-type argument with regard to real property, since the land was always there and someone had to “take” it first. However, there is absolutely no way to make that argument with respect to intellectual property. More than any other species of property, IP is uniquely the product of human creation. By denying someone the right to “own” such property (with everything ownership entails) you are effectively denying him the product of his labors and therefore the ownership of his body. That is the essence of communism.

  • Ian B

    Midwesterner, thanks for a very good comment. I have a couple more thoughts. Your observation that statist copyright laws effectively save the hassle of having to write and enforce individual contracts is a good one, but although I to a degree myself benefit from copyright laws I’m a trifle uneasy that it is a statist solution. Do we need it, or would private contracts be sufficient? I.e. requiring people who subscribe to my website to sign a contract promising they won’t redistribute my material?

    There is also the question of where the boundaries of intellectual property naturally lie. For instance, the shock twist ending of a serial is my intellectual property too, and perhaps it would do me commercial harm if it is revealed generally (i.e. less people bother to buy the last chapter because they’ve already heard what happens in it.) What degree of secrets can I in a fair sense declare ownership of?

    The other problem is a practical one. If somebody breaches the contract (be it private or nationalised copyright law) what actions can and should one take? This is really the problem the RIAA have (ignore that they’re a cartel; the same would apply to an independent rock band trying to prevent copying of their independently produced music). If some other company breaks the copyright and sells copies, that’s an easy one. We take them to court for compensation. But in a digitial copying scenario, the crime is very diffuse. Even if you can get the names and addresses of twenty million people who all handed the music around on a file sharing system, you can’t practically take them all to court, and each one’s share of the financial loss would be very tiny, hardly worth the effort. If OTOH you pick a few and “make examples of them” then you’re just using the courts to pick on the little guy, and you end up with the image of Big Bad Corporations sueing a teenager for copying Britney’s latest song.

    This is why the big media corporations are attempting to get preemptive control over filesharing; because in a practical sense, copyright laws are useless against it. I’m not supporting what they’re doing, but I can sympathise with the intent, at least to a degree.

    If my work is pirated widely, my little business is ruined. I can’t in any useful way use the law as it stands in the courts to address the problem. Even if I go through the immense hassle of sueing the teenager who bought a suscription to the website then uploaded the whole contents to bittorrent, he’s unlikely to have the resources to compensate me anyway.

    So this is the question I as a libertarian wrestle with. What system can we suggest that will address this problem fairly and practically? Copyright works well in terms of commerce, and that’s all that used to be needed since individuals hadn’t the resources to freely distribute books or music (taping your mate’s copy of Abba Arrival was in theory piracy but in practise naturally restricted by the lack of a distribution system). If there are natural intellectual property rights, how can they be maintained in the real world?

  • Midwesterner

    First a bracketing comment. IP protection is of necessity flawed because it has to predict what would have happened if you hadn’t done something. This is why patents are relatively brief and copyrights are relatively long. They are attempting to estimate how long it would have been before somebody else did the same thing that you are protecting. This is obviously and of necessity a flawed solution. But the only one possible. It is with this purpose and these flaws in mind that it is reasonable to adjust IP laws as society and information genesis evolves. Also, I don’t consider IP documentation and protection to be any more or less statist than real property surveys of land recorded by the government and enforced through the courts. Off hand, I speculate that any method of documenting ownership of something whether state or private would be suitable. The method of reserving domain names, surveying and titling them if you will, interests me although I don’t know much about it. I don’t know if it is administered directly by law or through contracts between parties. Or perhaps both.

    Now for some IP discussion. Please stop us if it is too OT, Adriana. It seemed kind of like you were opening the door rather wide on this thread.

    At one extreme are trademarks. These are protected just like real property. They are surveyed off, marked out and granted exclusively to one owner in perpetuity as long as the owner takes basic steps to demonstrate ongoing claim. And they are transferable.

    At the complete other extreme, are trade secrets. This is some IP, usually a process or recipe, that is held completely secret by the owner. Stradivari’s methods are a long past version of trade secrets. A very commonly referenced current case is the recipe for Coca-Cola. Trade secrets have no IP protection at all. The act of filing for protection would require giving out the secret, therefor no protection is available.

    Copyrights are similar to trademarks in how they act but they run for a finite amount of time. It varies, but my basis for recognizing trademark is ‘how long before somebody else would have written this’ and then I accept that the compromise we have is as good as anything else I’ve seen proposed.

    Patents are just like copyrights except they run for a very short period of time. This is because in the field of technical invention, many people are pursuing the same goals and both the expected and actually consequence is that multiple people do have the same idea at near points in time. The justification for patent protection running as long as it does is to incentivize people to stay in the race. I like patents approximately as long as they are but concede that this is a difficult to support position from my principles. It actually is a form of market engineering. But I also think that many ideas would take that long or even longer for someone else to invent and I don’t trust judges of any ilk to start deciding on a case by case basis.

    Virtually any of these protections can be pursued for anything. Assuming that something, say a computer program, legitimately qualifies for all of the different protections means that the category of protection you choose determines the kinds of protections you are granted. If you thought you could succeed, you could (a) attempt a trade secret. They are very difficult to guard. You are free to require people to (b) sign a contract to not redistribute your material. In the US, when purchasing something that is clearly identified as ‘copyrighted’ that has been considered to be part of a consensual agreement. So you could decide it is worthy of being considered art and (c) copyright it. I actually have seen some programs that had a distinct elegant brevity that very much appealed to me as art. Scientists often say the same thing about mathematical formulas. The problem there is that all you have achieved is preventing someone else from selling it as art. You haven’t stopped them from using it. Putting Einstein’s theories under copyright in no way stops people from discussing and using the knowledge. It just stops them from distributing copies. You could show some unprecedented and non-obvious method you used and (d) patent it.

    For the secret ending of your story, you can’t stop people from talking about copyrighted material. Your only hope would be to pursue the Coca Cola recipe method and keep it a secret and actually require explicit contracts at the time you sold them a copy. Discussions of your secret ending are I think unquestionably outside of your control unless you have a specific contract with the persons doing the discussing.

    And with your precious bootleg of dear, modest Britney, the method that I expect to see for that is the algorithmic embedding of ‘serial numbers’ in every copy released. Since many kinds of software would try to garble the data, I expect it would take the form of massively redundant secret relations between the bit in position ‘A’ and the bit in position ‘B’ through out the art. They would be undetectable to the human ear, but adequate to show provenance in court.

    I am guessing that the effect this will have on broadcast, both internet on conventional, is that there will be a seriously degraded version in the public domain but that original versions will be sold from a single source with serial numbers embedded. I as a consumer am fine with that because I have two entirely different modes of listening to music and looking at art. And it is actually not a new approach. I have an Iron Butterfly album that has three different versions of In a Gada da Vida (spelling alert as Paul would say) on it. One of them is the seriously degraded radio play version. It is very short. The best bits are all missing. If you wanted to hear the good version back in AM radio days (crap, I’m old) you had to buy vinyl.

    As for how this would work for little micro-boutique businessman Ian B, you would probably embed serial number information in your product. If you found it being redistributed somewhere, you would bring action against the buyer of the copy you sold that went into circulation. But clearly, you have to limit your actions to the buyers and sellers of the stolen property. And to do that you need to show distinct provenance from the legitimate copies.

    If you find somebody with a successfully defaced copy of your work, I think it would be incumbent upon them to show provenance or else be considered to have originated the forgery much as if you are caught with a stolen car, it is not enough to say ‘but somebody sold it to me’.

    By way of disclaimer, I am talking about ideals and this comment is not an precisely accurate description of the actual present law.

  • Midwesterner

    corrections –

    but my basis for recognizing trademark

    s/b

    but my basis for recognizing copyright

    and

    there will be a seriously degraded version in the public domain

    s/b

    producers will place seriously degraded versions in the public domain