Let's play privacy invaders: EU, ACTA and the Digital Economy Act

When I think of privacy I think of going about my business unhindered and unmonitored by the state.. or anyone else for that matter.  It's a right.. and curiously I expect the law to not only respect that right but also to protect it.  But expectations and reality don't always match up.

This week though these are some positive signs that privacy concerns are starting to be taken more seriously. 

First off, the Electronic Frontier Foundation reports that EU data protection officials have been looking into the EUs Data Retention Directive and how it has been applied in the member states.  Their findings are depressing reading ...

• Service providers retain and hand over data in ways they shouldn't.
• data retention often exceeds the maximum allowed under the directive - in some case by as much as eight years!
• More data is being held than the directive allows - including in some cases message content and not just traffic data.
• Callers locations are being monitored continuously under a call - contravening the directives provisions

They conclude that
"The provisions of the data retention directive are not respected and the lack of available sensible statistics hinders the assessment of whether the directive has achieved its objectives."

The good news is that it's not until abuses are visible that you can do something about it.  The timing here is also good as the directive is up for review and this can contribute to revision or repeal of the directive which, in my view, inherently is a gross violation of people's privacy.

Meanwhile, the same Article 29 committee has also raised concerns about the privacy implications of the ACTA agreement (see Michael Geist for excellent coverage on ACTA). 

"WP29 emphasizes that any form of large scale monitoring or systematic recording of data of EU citizens would be contrary to the provisions of Directive 95/46/EC since that would affect millions of individuals, regardless of whether or not they are under any suspicion."

After a critical look at other provisions - including making service providers hand over personal data to copyright holders they conclude:

"Copyright infringement needs to be dealt with on a global scale and requires international cooperation. However the way things stand now, several of the proposed measures are in the end bound to interfere with the private life of many citizens.
In the EU, any such interference is subject to EU fundamental rights and must be proportional. Given the aspects of ACTA currently under negotiation and outlined above, the WP29 remains to be convinced that this will be the case."

The third piece of good news is really a consequence of the above... or at least a supporting document from the European Data Protection Supervisor (EDPS) giving a full analysis of objections to the three strikes principle.  The Open Rights Group highlight that this expert opinion should have implications for the UK governments Digital Economy Act - at least the parts dealing with combating copyright infringement .

In the words of the EDPS:

"...the monitoring of Internet user's behaviour and further collection of their IP addresses amounts to an interference with their rights to respect for their private life and their correspondence; in other words, there is an interference with their right to private life. This view is in line with the case law of the European Court of Human Rights. "

The bottom line seems to be that letting copyright holders loose as private police with powers to request private details on anyone they choose is likely to end up the wrong side of EU rights legislation....  which would be a welcome victory for our collective privacy.

Piratpartiet and The Pirate Party -  Putting privacy first.

Digital Britain down the drain...

The Digital Economy.. that needs openness and innovation to thrive and grow today lies fettered by the Digital Economy Bill... a bill drafted to serve the interests of vested media industry interests, not to provide vehicle to stimulate and nurture all that the web could provide.  It's a bill that sets economics above rights and political machination above open democratic debate.  It's a bad bill.. and a bad day seeing it on the statute books.

 "I've heard arguments that I should be responsible for the Internet connection I pay for, just as a business is responsible for its network activities. Please! Let's put this into perspective - I'm a working mother of four children aged between 14 and 21. I'm not a network administrator, and pardon me if I'm too busy being a mother to commit my time to monitoring the home Internet connection. Also, even if I somehow managed to look over all four of their shoulders whenever they were online, I wouldn't know what I'm looking at..." Vanessa.. Mother of four

...taken from the comments on an article in the Daily Record  where the Scottich Law Society comment the bill...
 "This in our view raises serious concerns with the European Convention on Human Rights, which provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." Law Society of Scotland 

The possibilities for injustice are legend.

I hope our MPs are proud?

"As a twice ex-Whip, I am rather embarrassed by the fact that the Bill is being railroaded through in the wash-up. Frankly, there has been a squalid deal between the three Front Benches, and they should be ashamed of themselves. The people who care about this Bill -and there are many out there -will see that for what it is."  Tom Watson MP

Of course...  politicians are ultimately answerable to us the electorate.... so you might be interested to know which of our representatives had the spine and the vision to vote against the whips in the interests of our digital future...  The full list here

No compromise on Digital Rights..
It's time to vote Pirate!

Piratpartiet &; The Pirate Party -  Make your voice heard.

Seeing what you want to see. The ICC Digital Economy report.

Thirty two billion euros and six hundred thousand jobs by 2015.  Those are the losses due to piracy projected by the ICC report "Building a Digital Economy".  Scary stuff...

The report is interesting reading but not totally convincing.  If it were a climate report it's the type of publication that would have climate sceptics baying for blood.  I'll give some comment here and if you want  more analysis read on at  Technollamna, Tumbled Logic, and Open....   Overall the authors I think have done a good job of setting out what they have done, and importantly what they have assumed - and in that sense it's a valuable input to the debate that bears study.

My first and biggest problem with the report is that it sets out to evaluate the damage done by piracy - and as such finds the result it is looking for.  It isn't a holistic view of the economy and doesn't consider balancing factors - like increased bandwidth usage from non-commercial sharing stimulating the telecoms sector.

The basic premise of the report is that the creative industries and supporting sectors are a major part of the economy and are at serious risk from piracy.  They then present figures that show that piracy as they evaluate it amounts to around a 2% of creative industry value.  Noticeable but not at a level that supports the premise that piracy is killing creativity.  Moreover, they include in their assessments non core industry sectors like paper production (and production of physical recording media) which are much more at risk from the rise of the digital economy than they are from piracy.

They then evaluate piracy losses based on two scenarios - one based on forecast growth of file sharing traffic (+18% p.a) - and the other based on overall growth of consumer IP traffic (+24% p.a).  This second scenario, professionally speaking, I consider pure fantasy as consumer IP traffic is likely to be driven by legitimate online and IP-TV rather than an explosive growth in piracy. 
Both scenarios miss an important element in a holistic view - which is the consumer's ability to pay.  Predictions of traffic growth are based on significant reductions in cost per bit.  There is no assumption that consumers are prepared to pay 18-24% per year more for bandwidth - and there clearly is no rationale to think that the value of pirated content conversion to legitimate sales would rise at those rates either. 

Put another way - the study assumes a constant percentage of pirated content is lost revenues.  Households don't have limitless pockets though, so realistically if content piracy increases the hypothetical conversion is likely to fall. Without some validation of what consumer spending trends are for entertainment content the numbers given are just wishful thinking.

In fact, Tumbled Logic suggests why current trends on Torrent downloading could mean conversion of downloads to sales could be as low as 0,5% - which would cut the estimates in this study by a huge 95%.  Assumptions are crucial in reaching a trustworthy result.....

Next we hear how piracy is having huge impacts on the music industry and that reductions in physícal disc sales have collapsed and that piracy must be to blame.  This is supposition not supported by the evidence...  There is clear evidence that revenues from live performances have substantially increased and that the total music industry revenues including these are stable - and further evidence that shows that there is a switch in buying behaviour from music and other passive media to games - a sector that shows significant growth.  Less piracy may have inhibited that shift to live performance and games, but where's the evidence that less piracy would grow the overall available market?

Again, unless a study can substantiate a growth in consumer spending on media over and above existing levels (with for instance cinema attendances at record levels) how can you project huge losses?  Here in lies the rub.... as a consumer if I spend more on music, or TV or video, then I spend less on something else.  So just where is the economy going to be hit if consumers are buying all their content instead of taking a share online?

Lastly, in this whistlestop critique, is the figures for lost jobs quoted...  the hypothesis is that if we increase sales on video 'X' we have more money to employ more people and to create more content.  But is that a realistic view?  Media companies want to maximise their profits, not maximise their output -  and at the end of the day consumers have a finite budget and a finite amount of time to consume content.  Is it a given that higher sales will generate employment? Better sales per production could even have the opposite effect... we don't need to create as many films/songs to generate our sales (and profit) targets - so why dilute the market by creating more content?

Seek.. and you shall find.  But don't believe everything you read!

Piratpartiet &; The Pirate Party -  Make your voice heard.

Their Lordships on the Digital Economy

The Pirate Party wiki has an interesting page with extracts from the second reading from the House of Lords on the Digital Economy Bill. Some of the quotes I have to say (but not all) are perceptive and spot on the mark...

"There is a huge danger here. A huge group of our people are doing something that they do not think is wrong or a crime. It is dangerous for us to be putting into effect legislation that puts a whole lot of people in a criminal situation when they do not think that they are committing a crime."   Lord Mitchell

"On the whole, the small people will not be protected by patent law because they cannot afford it. There will be no one on the internet looking for their songs being downloaded and no one interested in pursuing those cases. The small people are already putting their stuff out through other methods." Earl of Erroll

"The information obtained by copyright owners, and in a sense laid before ISPs, is allegations of breach of copyright, not infringements in themselves."  Lord Clement Jones
 
"Checking on other people’s internet traffic to see whether file-sharing is taking place is akin to opening somebody’s post in envelopes to see whether they have illegally photocopied books"  Baroness Miller

There are lots more - interesting reading...

Piratpartiet and The Pirate Party - Working for copyright reform.

Streaming.... the answer to an industry's prayer?

According to industry figures digital music sales are rising.. the result they say of increased legislation and the introduction of new services like Spotify that meet users needs .. And to be honest it is not a bad thing if commercial music services do appear that provide what consumers want. About time you might say.

That streaming can be the death of pirating is the subject of an article by Mercedes Bunz in the Guardian - pointing to the possibilities that streaming services can bring. But streaming comes at a price - and in any case is not the panacea it seems. Cory Doctorow has an excellent piece on why streaming might make the industry happy, but ultimately won't make copying go away. Basically, from a technical stand point, saving a streaming film or music track is a very small step.... (think radio and tape recorder)

The risk is that this sparks another technology war between the user community and the copyright lobby - with ultimately the only way to enforce copyright being through gross intrusions on your privacy.

More though - streaming is a bad solution when it comes to practical use of the Internet - particularly streaming when on the move. It places very high load as everyone wants to stream at the same time.. Stored tracks on your MP3 player are much more effective.

That last issue is one I've been thinking about for some time. Peer to peer trafiic - downloads - happen in the background. It doesn't matter if they take a bit longer - and you don't need the traffic to get there in real time. It can be low priority in the operator's network - and operators can and do throttle p2p traffic to keep their networks running.

Streaming traffic is live, and time sensitive, and needs to be high priority in the network to get an acceptable service. Not only that but downloading is a 'do once use many' activity, whereas streaming takes bandwidth every time you want to play something - even if you've heard it before. So total traffic will rise - and traffic mixes will shift to make handlling peak loads much more difficult. Streaming is bad news for telecom operators - it is likely lead to them needing to build out capacity to cope with streaming traffic - or disasterous impact on network quality.

Which means that, on top of the bill for monitoring user traffic and policing peer2peer use operators are likely to be stuck with significant costs for network upgrades as streaming music, and particularly video, becomes more popular. They (and we the subscribers) take the cost for the media industry's gain.

Is that how it's going to be in the Digital Economy?

(When I get the time I'll try and make a guesstimate of just how much that extra investment might be....  but it's not going to be small...)

Piratpartiet and The Pirate Party -  Working for copyright reform.

Record label head resigns to oppose Digital Economy Bill

CMU reports in an article that Anthony Hall, head of record label Pure Mint, is resigning from both the British Phonographic Industry (BPI) and the International Federation of the Phonographic Industry (IFPI) because of their support for the Digital Economy Bill.  Significantly Mr Hall, who is also a lawyer,  has been both a member of the BPI's rights committee and IFPI's International Legal Committee.

His resignation letter is strongly critical of the bill and BPI and IFPI's support for it. His complaints are precisely those that have been raised loudly in other quarters...  The bill, the article says "is in danger of disregarding some sacred legal principles (regarding process, presumption of innocence and burden of proof) and ... it won't solve the record industry's piracy problems anyway."

The proposal for new ministerial powers he describes as "wholly undemocratic and contrary to centuries of good practice regarding the forming of our copyright legislation."


Top marks to Mr Hall for showing that integrity and principle matters more than profits.  But are government minister's really so blind that they can't see this for themselves??? 

Piratpartiet and The Pirate Party -  Working for copyright reform.

Think tank says think again on Digital Economy

The Adam Smith Institute is the latest to come out with criticism of the UK Goverments plans for the 'Digital Economy'.  They have released an online briefing paper on Digital Britain - which is described in brief on their website under the title Leave 'Digital Britain' alone.

Aside from a key message that the digital economy is doing very well thank you without government interference it takes the government to task for not taking privacy issues seriously.  It also makes this superbly simple suggestion.
"The report suggests that personal identity and all data associated with it should be defined in law as private property owned by the individual. Any use of that personal data without the owner’s consent would thereby become unlawful."

Yesterday would not be soon enough....

Piratpartiet and The Pirate Party -  Putting privacy first.

A photographer's view of the Digital Economy Bill

Following this morning's post on the Digital Economy Bill I came across two sites of interest if you want to follow it's progress...   The first is a twitter stream on the bill - clearly a good spot to head for for up to date comment.

The second is Pro-imaging - a site 'supporting professional image creators' who are following the bill's progress because online intellectual property is a clearly of interest for people making a living from photography.  Apart from some useful links on submitting comments and following the bill's progress in the house they raise some points on what they see the bill misses. 

The first is a proposal to add compulsory school education in Intellectual Property...  I understand where they are coming from - but it's something I personally am against.  Firstly if it's not already mandated after two hundred years of copyright it is hard to see it as a 'must have' - and secondly it's a topic that could easily turn into indoctrination rather than education. That's not to say that I don't think there is value in school students debating intellectual property issues - but since principles of intellectual property have a clear political dimension we should be very wary of mandating what students should be taught to believe..

The second though I do support - an artists right to attribution - in principle at least.  Clearly passing someone else's work off as your own is fraud and shouldn't be condoned.   On the other hand their proposal of making it an offence to tamper with metadata in a file...... sounds like a big sledgehammer for a pretty small nut.  I'm not sure it's practical  - how would you prove who made changes to the meta data on a file? And I have no idea what is lodged as meta data if I edit or crop a file and then save it. (When does it become a secondary work?).   If I change format and the meta data is not transferred is that an offence.... Nya. Not such a great idea......

Piratpartiet and The Pirate Party -  Working for copyright reform.

Kill Bill: Stopping the Digital Economy Bill

You must have heard about the Digital Economy Bill...   the UK government's proposals for regulating the Internet.  It's been widely criticised - particularly for continuing to promote the governments line on excluding users from the Internet and for obscene new powers for ministers to make up copyright enforcement as they go along.  The leaders in the digital economy are firmly against it - including both ISPs and industry heavyweights like Google, Yahoo and eBay. The EFF describes in no uncertain terms that this bill will fetter the digital economy and stifle innovation.

Don't like it?  Then don't accept it.  Here's some simple steps to take to help stop this unacceptable legislation.

• Write to your MP ... or visit them.  Tell them in simple terms why this is a BAD proposal.
• Write to a Lord.  The bill has to pass the Lords.  Yesterday was the second reading but it will be back.  Details here from the Open Rights group.  Note - choose one of the Lords listed as a speaker in the debate (listed in the comments)
• Join the Open Rights Group.  Strong membership (and financial support) help them to lobby on this and other digital rights issues.
• Join the Pirate Party.  Britains only political party dedicated to protecting users rights on the Internet and creating a forward looking digital economy.  Becoming a pirate shows that the digital economy matters to voters - and there is an election coming up.
• Sign the petition against the bill at Number10.gov  (now almost 29 000 signatures)
• Join the Facebook group - I won’t vote for any MP who supports Mandelson’s Digital Economy Bill -and remember to tell your MP!
• Blog about it...
• Make sure all your friends do too  (all of the above!)

Don't sit back and let them...  Do something.  and do it now!

More on the DEB:
Open Rights: The Digital Economy Bill - a first critical look
Liberty: Disconnection is disproportionate and indiscriminate
Mandy and Me: Some thoughts on the Digital Economy Bill
Britain's new Internet Law - as bad as everyone has been saying, and worse.

Piratpartiet and The Pirate Party -  Working for copyright reform.