Posted by: Clarinette | March 1, 2014

Copyright Confusion is Madness

Copyright

Copyright

I have studied Copyright law in France at undergraduate level, in the UK during my postgrad LLM at QMUL and at the moment I am reading an online course on Copyright with Harvard University. I have spent the last few years looking at the intersection of privacy and copyright law. I have advocated against the recent anti piracy regulations From HADOPI- The digital Economy Bill, SOPA and et all. I have been repeating this is all too confusing. We need to adapt the law before creating new sanctions, no one today can pretend to really grasp the logic of copyright law. The decision by the 9th Circuit came out just when we were studying the question of Authorship. It is absolutely amazing to read this case where the actress Cindy Garcia is said to own a copyright on a movie where she played a small contribution which has been used without her consent in a second movie, the ‘Innocence of Muslims’. The justification being that she has been receiving death threats. What could have been resolved under contract law, had she had signed a contract, or Moral Rights, had it been in Civil Law litigation.
So the 9th Circuit has given an injunction to Google YouTube to take down this video. The Judge Kozinski has even asked Google/YouTube an injunction not to tell the world that the video had been ordered censored by a court for at least a week!
Since, Google has quickly filed an “emergency motion for a stay”.
The number of dissent opinions on this case is remarkable. I invite you to look at some of them collected on my Pearltrees. This is a crucial question as it can led to a deluge of litigation if each and any actor, performing in a movie claimed co-authorship on the work. As much as I know co-authorship is not proportional under US law. So any actor would have right on every each whole work?!!!!! It’s a mess and I fear for every law student expected to have understood. here the Hollywood Reporter reports few dissent scholars.

Check out the pearltree Authorship.

Here is an abstract of the reasoning:

An actor’s performance, when fixed, is copyrightable if it evinces “some minimal degree of creativity . . . ‘no matter how crude, humble or obvious’ it might be.” …. That is true whether the actor speaks, is dubbed over or, like Buster Keaton, performs without any words at all. Cf. 17 U.S.C. § 102(a)(4) (noting “pantomimes and choreographic works” are eligible for copyright protection). It’s clear that Garcia’s performance meets these minimum requirements.

Aalmuhammed isn’t to the contrary because it does not, as the dissent would have it, “articulate[] general principles of authorship.” Dissent 25. Aalmuhammed only discusses what is required for a contributor to a work to assert joint ownership over the entire work: “We hold that authorship is required under the statutory definition of a joint work, and that authorship is not the same thing as making a valuable and copyrightable contribution.” … Aalmuhammed plainly contemplates that an individual can make a “copyrightable contribution” and yet not become a joint author of the whole work. Id. For example, the author of a single poem does not necessarily become a co-author of the anthology in which the poem is published. It makes sense to impose heightened requirements on those who would leverage their individual contribution into ownership of a greater whole, but those requirements don’t apply to the copyrightability of all creative works, for which only a “minimal creative spark [is] required by the Copyright Act and the Constitution.”

[....]

This doesn’t mean that Garcia owns a copyright interest in the entire scene: She can claim copyright in her own contribution but not in “preexisting material” such as the words or actions spelled out in the underlying script. 17 U.S.C. § 103(b);…. Garcia may assert a copyright interest only in the portion of “Innocence of Muslims” that represents her individual creativity, but even if her contribution is relatively minor, it isn’t de minimis…. We need not and do not decide whether every actor has a copyright in his performance within a movie. It suffices for now to hold that, while the matter is fairly debatable, Garcia is likely to prevail.

Innocence of Muslims

Posted by: Clarinette | December 12, 2013

Mes Hommages Monsieur Sur

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Discours de Pierre Olivier pour son investiture au Batonnat

Je me souviens que lorsqu’un jour on demanda a la plus vieille dame du monde comment elle se sentait du haut de son grand âge, elle répondit que tout allait a merveille pour elle mais qu’elle se souciait de sa fille qui elle, prenait de l’âge!

Aujourd’hui, en regardant le discours éloquent de Pierre Olivier Sur, je vois son crâne dégarnissant et ses poches sous les yeux qui me rappellent que de l’eau a coulé sous le pond depuis que je l’ai connu jeune étudiant. A peine plus jeune, je travaillais alors au cabinet de son père, Bernard Sur. Il n’avait que quelques pas d’avance sur moi dans ses études de droit. Il venait lui du sérail et moi d’un autre monde. C’est parachutée que je me retrouvais en fac de droit  alors que tout me prédestinait a la médecine.

C’est pourtant avec passion que j’ai poursuivi mes études tout en travaillant. J’étais pleine de ferveur et assoiffée de savoir.

Je me souviens encore très bien le traitement inégalitaire des collaboratrices femme a l’époque, surtout au cabinet Sur spécialisé dans le droit de la construction. Minoritaires étaient les femmes avocates; Majoritaires elles le sont devenues aujourd’hui au Barreau de Paris.

Olivier Sur succède a Christine Ferahl Schul. Avant elle, Dominique de la Garanderie au cabinet de qui j’ai également eu la chance de travailler alors étudiante. Elle a été la première femme Bâtonnier de l’Ordre. Une femme de grande culture et une personnalité pour qui j’ai gardé un respect tout particulier.

Malgré ce long chemin, les femmes sont encore bien loin dans la liste des ‘grands’ cabinets.

Pas facile d’être une femme et de poursuivre une carrière.

Pas facile d’être une femme encore aujourd’hui.

J’ai eu aussi la chance de travailler au Cabinet Salance, une autre dame de grande envergure. Elle a cree un des rares cabinets français présents a l’internationale.

Elles sont peu, trop peu des femmes de cette trampe.

Félicitations a Pierre Olivier Sur, tu es aujourd’hui le nouveau Bâtonnier. C’est un grand chemin que tu as parcouru.

Nous sommes beaucoup a avoir entrepris des études de droit poussés par l’amour et le respect pour la Justice.

Faites que le droit ne devienne pas un simple commerce. Chercher a tirer profit de l’état de faiblesse de son client, sans respect pour la personne, n’est pas exercer le métier d’avocat. Ce n’est rien de plus qu’un vautour ou un chacal qui se jette sur un cadavre mourant. On ne devient pas avocat comme on devient banquier. Le banquier, lui au moins ne prétend pas défendre des droits. Il s’occupe de fructifier l’argent qui n’a pas d’âme.

Ceci expliquant cela, on devinera peut-être pourquoi on aura moins de femme dans certains ‘grands’ cabinets moins humains.Discours d’investiture de Olivier Sur Batonnier de l’Ordres des Avocats de Paris

Posted by: Clarinette | December 6, 2013

To Nelson Mandela and all brave men of his kind

Read More…

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The Electronic Commerce Directive (00/31/EC), in the footsteps of the 2000 Lisbon European Council, aim was set to ensure the free movement of “Information Society Services” throughout the European Community. To encourage greater use of E-commerce by breaking down barriers across Europe and to boost consumer confidence and trust by clarifying the rights and obligations of businesses and consumers.

To develop secure transactions inside the Internal Market to be able to compete with the rest of the world – by creating the European Regulatory Framework similar to the US DCMA.  the Directive came  after a German case in which a managing director of an ISP was sentenced to prison for pornography unknowingly held on its servers. Although the decision was reversed on appeal, it drew attention to the need for clear guidelines on the liability of ISPs, especially when they do not have knowledge of the infringing material

The E-Commerce Directive has been since implemented in all EU countries establishing a protection from liability for internet intermediaries.
In principal, ISPs are secured as long as they remain passive in transmitting information and avoid liability for third party content.
Would they become active and start monitoring or judging the legality of the content, that they turn liable for this content as publisher or editor.

Monitoring Activities

The Article 15 of the Directive has clearly removed any obligation on service providers to monitor content in order to qualify for these immunities.
Coming out of its passive role ISPs might consequently risk to undergo liability for content. The giant search Engine Google has always argued it could not act on its search results as his  indexing were automated by its secret algorithm.

However, the E-commerce Regulations  designed as a shield to protect ISPs, could turn to a stick with which, ISPs that monitor activities,  may be beaten

ISPs compliance with notice and take down orders

ISPs are asked to respond ‘surreptitiously’ to a Notice of take down that they usually won’t have the opportunity to verify.

In this respect, the Dutch liberty organisation Bits of Freedom* SANE and its Director, Sjoera Nas, had directed a research studying the EU safe harbour :

An initial comparison with the procedure of notice and take down in the USA under Scetion 512 of the 1998 Digital Millennium Copyright Act. It is stipulated that all categories of service providers qualify for the safe harbour provisions, access, caching, hosting and service as search engines.

The legal safe harbour consists of 5 elements.
• a complaint must identify himself and the infringements exactly
• plaintiff and the customer must act ‘in good faith’, on penalty for perjury.
• the provider must block the material upon receipt of the complaint and inform the customer
• materials must be put-back in 10, maximum 14 business days after a counter notice
• identification data can only be obtained with a subpoena

In conclusions the study found that :

‘Compared with these Safe Harbour provisions, the European legislation leaves plenty of room for doubt and misguided judgement by providers. There are no criteria to validate complaints and counter notices and there are no arrangements for the hand-over of customer data, besides general privacy principles that do allow voluntary hand-over. More-over there is no obligation in Europe to inform the customer and there are no legal guarantees to protect the freedom of speech.
Though a put-back procedure is not the ideal solution, since it leaves room for fanatics like Scientology to shut-down website and instigate long legal procedures, at least it gives some kind of guarantee to internet users their counter claim is taken seriously.’

The case mentioned refers to an action where the sect of Scientology was opposed to the Dutch author Karin Spaink and 20 providers that hosted copies of the Fishman Affidavit on her home-page. The claim was rejected in the basis of freedom of expression prevailing upon copyrights. In 2003, the Court of Appeal in The Hague recognized the copyright of Scientology, but found that Spaink’s publication should be allowed on the basis of the article 10 ECHR (freedom of speech) due to its informative character.
The Multatuli project: http://www.bof.nl/docs/researchpaperSANE.pdf

Such Systematic take down results on breach of privacy and freedom of speech.

Formal exigence

Regulation 22 provides a non-exhaustive list of factors which a court will consider in determining whether actual notice has been issued to the service provider. These include whether the service provider has received a notice through any means of contact that the service provider has made available in compliance with regulation 6(1)(c).
Regulation 6(1) requires the service provider to make certain information available to the user “in a form.which is easily, directly and permanently accessible”. Regulation 6(1)(c) refers to contact details of the service provider, including email addresses, which permit rapid and direct communication. This requirement can be easily fulfilled by placing an obvious link on an institution’s homepage which points to email, telephone and other contact details. A dedicated email address for dealing with complaints may be helpful, provided that it is checked at least daily for incoming mail.
Other factors which a court should consider under Regulation 22 are:
the extent to which any notice includes
– the full name and address of the sender of the notice;
– details of the location of the information in question; and
– details of the unlawful nature of the activity or information in question.”

Failure to react promptly

The Regulations’ expectation is for ISPs to react ‘Expeditiously’.
In the Mumsnet case, the ISP had failed to react ‘expeditiously’ to take down content. Based on this obligation, ‘Mumsnet’ was sued by the child-care author Gina Ford for defamatory comments made in their site forums and not taken down expeditiously. The case was settled out of court, Mumsnet consenting to present apologies and payment of damages. However, the question of speed of reaction remained. It is now generally expected a prompt reaction within two working days.

The actual knowledge

The ISP benefits from the immunity until it has no actual knowledge of the infringement. Once it has been notified,   the content has to be removed.
In the case of Bunt v Tilley (2006), on the question of publication of defamatory allegations, the court held that : “an ISP which performs no more than a passive role in facilitating postings on the internet cannot be deemed to be a publisher at common law.”. However, the ISP is likely to be liable “if a person knowingly permits another to communicate information which is defamatory, when there would be an opportunity to prevent the publication, there would seem to be no reason in principle why liability should not accrue.”

The ISP is considered to have actual knowledge if he has acted as the actual publisher or, if having been noticed, did not took the appropriate measures to prevent the infringement.

In the UK, Regulation 19 stipulates (a)(i) (the ISP) ‘does not have actual knowledge of unlawful activity or information, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful;’

The regulation 22 additionally gives a non-exhaustive list of factors which might constitute the “actual knowledge”.

Another interesting experiment was run in the summer 2003 by the Oxford Centre for Socio-Legal. A similar but wider experiment that was run by Bits of freedom. They created two mystery shoppers one in the US and one in the UK, with a section of John Stuart Mills ‘On Liberty’, published in 1869 and hence freely useable in the public domain clearly indicating “The text is freely available throughout the web.”  They then sent bogus notice of take down. ‘The result was shocking’ reports Sjoera Nas, the UK provider removed the homepage, simply following procedure. http://pcmlp.socleg.ox.ac.uk/sites/pcmlp.socleg.ox.ac.uk/files/liberty.pdf

Overall, ISPs found it challenging to comply to the spirit of the regulation. By fear of responsibility, mostly, they tend to systematically remove without prior verification of the content or the seriousness of the complaint. In most cases. The Oxford study shows that ISPS often even failed to notify the customer about the complaint while the identity of the complainer was not even real or at least not complying with Regulation 22.

A slippery move back towards shooting the messenger rectified

The court positions are not harmonious within the European countries. However, a general move towards the liability of ISPs can be seen in countries of civil law.

The French HADOPI, anti-counterfeiting institution, has created an article L 326-2 on the Intellectual Property Code (IPC) allowing copyright holders to ask the Tribunal of Grande Instance to order necessary protective measures to put an end to copyright infringements. The French courts then slipped from the notice and take down measures to a creation of a notice a stay down obligation for ISPs.

ISPs were already uncomfortably asked to be judge and jury, as part of their obligations from the eCommerce Directive, to decide when to act upon a take down notice with no element of verification. The new obligation resulting of the article L 326-2  if ordered by the judge would ask them to monitor the activities of a counterfeiter. By doing so, they will become liable. ISP immunity being knowledge based. By monitoring or filtering the ISP is not anymore a mere conduit. A dangerous move towards a publisher or editor to therefore become liable. This goes exactly against the principals of the directive.

Since 2007, some French court d’Appel had self created a new rule imposing to intermediaries the obligation to monitor subsequent publications of materials previously notified as infringing.
The three decisions of the Court of Cassation on 12 July 2012, wisely reestablished the situation ruling that general monitoring obligation, would be contrary to applicable law. The obligation belongs to copyright holders to notify each new infringement linked to the same material as Eu does not have the single publication principal as in the DMCA. A big victory for Google search.

Google & Aufeminin.com v. Mr. X http://www.courdecassation.fr/jurisprudence_2/premiere_chambre_civile_568/827_12_23881.html

“les dissimulateurs” http://www.courdecassation.fr/jurisprudence_2/premiere_chambre_civile_568/828_12_23882.html

“affaire Clearstream” http://www.courdecassation.fr/jurisprudence_2/premiere_chambre_civile_568/831_12_23883.html

Since recently Twitter has started to hand pick tweets and notify its users by email. It would be interesting to see what the court position will be with regard to infringement of these selected tweets manually monitors and promoted by the ISP.

Intermediary liability for copyright infringement
Cartoon by Jonik

Posted by: Clarinette | February 6, 2013

The Interests of Authors, February 6, 7:00 p.m. EST

An invitation from the CopyrightX fellows:

This evening, will be held the first of the six “Special Events” associated with the CopyrightX course. It will start at 7:00 p.m. Eastern Standard Time (midnight GMT) and will last for 90 minutes. The topic will be “The Interests of Authors.” As you now know, many copyright laws and theories are founded upon assumptions concerning what authors and artists of various sorts care about — what motivates or concerns them. But rarely are the authors and artists themselves consulted on this matter. The goal of the event tonight is to help fill that gap.

Four speakers, representing different fields of creative endeavor, will be offering their views:

Richard Kelly is a highly accomplished professional photographer and currently President of the Board of Directors of the American Society of Media Photographers.

William Landay is a best-selling author. His latest book, Defending Jacob, has been earning rave reviews in many forums, including the New York Times.

John Drake is the Director of Communications and Brand Management at Harmonix Music Systems, the world’s leading music video game developer. In his spare time, he’s a member of the indie rock group, The Main Drag.

Dale Cendali is one of the leading copyright litigators in the United States. Her clients have included J.K. Rowling, 20th Century Fox, Victoria Secret, the makers of the Tetris video game, and the Martha Graham Dance Center.

They will talk for roughly 45 minutes and then we’ll have a general discussion of authorship and creativity.

The event will be webcast live. The URL is available through my homepage: http://cyber.law.harvard.edu/people/tfisher/CopyrightX_Events_2013.htm.

Update 27/04/2014 : un going battle of the pot de terre contre le pot de fer. http://www.ip-watch.org/2014/04/26/antigua-questions-efficacy-of-wto-dispute-system-over-ip-related-case/?utm_source=IP-Watch+Subscribers&utm_campaign=838eca3689-DAILY_SUMMARY&utm_medium=email&utm_term=0_b78685696b-838eca3689-352130097

contreUpdate from Eric Goldman’s blog: :Territorial Implications of Antigua’s Internet-Based IP Sanctions Against the US (Guest Blog Post) By Guest Blogger Marketa Trimble’.
The author underlines:
1- the inherent danger that exists when IP issues are included in general trade negotiations and trade treaties, such as the WTO negotiations and the TRIPS Agreement.
2- the problems that arise when a country attempts to design sanctions on the Internet against another country in such a way that the sanctions will both target intellectual property and remain territorially limited.
the complexity of international copyright rules of applicability, country of origin or the country of the first publication or the country of the author’s nationality, or “country with the most significant relationship?
3- the problem of evasion of geolocation and filtering measures.
All very difficult and uncertain issues.

A decade long conflict around the US protectionism from outside e-commerce and the recent turn to ban foreign companies intrusion in gambling business has flamed up.

According to Harold Lovell, Antigua’s finance minister, “The economy of Antigua and Barbuda has been devastated by the United States government’s long campaign to prevent American consumers from gambling,”…  “These aggressive efforts to shut down the remote gaming industry in Antigua have resulted in the loss of thousands of good-paying jobs and seizure by the Americans of billions of dollars belonging to gaming operators and their customers.”

Marc Gibbs, in a Forbes article “Pirates of the Caribbean: Antigua and Barbuda Turn From Internet Gambling to Legalized Piracy” gives a comprehensive historic overview of the conflict. In the US, the Federal Wire Act prohibits all forms of online gambling.

It’s on 1994 that “[the] Caribbean nation of Antigua and Barbuda passed the Free Trade & Processing act, allowing licenses to be granted to organisations applying to open online casinos. In 2000 the Caribbean revenues were exceeding $2.000 billion and 59% of the global online gambling these figures came down to less than a half iby 2007 as a result of a sever US clamp down.

Antigua has been suffering from the loss of revenue and employment, consequently, they  “commenced the dispute resolution process of the World Trade Organization (‘WTO’) to challenge the United States’ total prohibition of cross-border gambling services offered by Antiguan operators.” It was in 2004 that the WTO backed Antigua, ruling that the “US restrictions against online gambling violated international treaties”. The US appeal gave 1 year to the US to modify its legislation which did not happen. After a continuous battle, Antigua and Barbuda recently asked WTO to authorize them to wave the US copyright protection.

It’s on January 28, that the WTO authorized Antigua to suspend US copyrights!

Despite what some call ‘pirated’ music, this is a very formally authorized wave of copyright protection.

The questions that remain here are:

1- what is the situation of customers from outside the Caraibians?

As the cross border nature of the internet implies, anyone could access a website and purchase a copyright free material.

2- what are the legal implications of such purchase for consumers outside the Caribbean?

Many might reply the applicable law is the law of the targeted audience, others would say for a healthy international commerce the law of the country of origin should apply.

What are your thoughts?
I have compiled all links and connected articles on this subject on my Pearltrees to find here (just click on each pearl to access the link)

First introductory video posted online: http://www.youtube.com/watch?v=aicOMCjUJKI&feature=youtu.be
The video of the event can be watched here

CopyrightX, is the new EdX distance-learning course on copyright to be offered under the auspices of the EdX initiative in the spring of 2013. The course will explore the current law of copyright and the ongoing debates concerning how that law should be reformed. Through a combination of pre-recorded lectures (by Prof. Fisher), live webcasts, and weekly online seminars (led by Harvard Law School teaching fellows), participants in the course will examine and assess the ways in which law seeks to stimulate and regulate creative expression.

If you wish to self study, the course materials should be made as widely available as possible online. Copies of all of the components of the CopyrightX course will be posted at the following address: http://cyber.law.harvard.edu/people/6/CopyrightX_Homepage_2013.htm.

The “special events” will be webcast and can be watch live in conjunction with the course.

These materials would enable you, if you wished, to construct a self-study distance-learning course that would parallel the CopyrightX course itself.

I am hoping to organise a “satellite” course, as suggested by the organisers. We can create a group of people interested in studying Copyright together. Members of the group can study the materials, we can then meet online, using Google hangout for instance and discuss the issues and problems raised by those materials. If you are interested , please send me your email and express your interest under ‘comments’. Hope to create a vibrant group with animated discussions.

Read more about the course syllabus and materials curated on my Pearltrees.
P.s.: Text largely copied from Dr Fisher

Posted by: Clarinette | January 19, 2013

Humanity Connected is God?

Humanity Connected is God

Thank you to my online friend Euan Semple for sharing this very interesting talk/testimony. It is a shame to see that humans too often care more about a regretted deceased than they have compassion for the ones in live.
Internet connects humans, internet shares knowledge and opens the world. I am constantly amazed by the speed and the scale of the spread online. Internet is a catalyst, an amplifier, for the best but also the worst of what humans do. Hence, yes, I do have faith on the internet and the inter-connectivity of people and the world knowledge.
Free access to the Internet has to be a human right. Copyright yes, but not for a lobby of powerful industries.
Security and online safety yes but no censorship and creepy surveillance (Deep Packet Inspection and et al)
I love to see when I curate articles on a subject, I can share and discuss it with connected ‘friends’ around the world. With my Pearltrees, I can instantaneously see what else is being curated around the world. An interconnection of a click that can reach so far, so fast! Just amazing!

I should have added that thanks to this sharing and the wealth of knowledge made available, learning has become not only easy, accessible but also fun and enjoyable. From learning languages to complicated mathematical concept available for free online, should it be the MIT courses or any Khan Academy videos, so many podcast on technology, history, science, etc… I share my resources on Pearltrees, crowd sourcing and spreading.

Posted by: Clarinette | January 14, 2013

Decrypting Aaron Swartz’ suicide message.

Update 20/02/2013
Yesterday, Professor Lawrence Lessig gave a brilliant lecture following his appointment as Roy L. Furman Professor of Law and Leadership at Harvard Law School, titled “Aaron’s Laws: Law and Justice in a Digital Age.”
Understanding what Aaron and his fellow were trying to do. What is the value of copyright as opposed to ‘dumb copyright’ and the free access to knowledge. How justice should understand civil desobedience. and where we are going in copyright protection in the digital era were some of the points developped in this speech to be find here.

Professor Lessig is a founding board member of Creative Commons, which promotes universal access, innovation and sharing of ideas, and the creator of Rootstrikers, an organization that aims to share stories about government corruption, money and media and work towards practical reform. He also serves on the boards of MAPLight, Brave New Film Foundation, The American Academy, Berlin, AXA Research Fund and iCommons.org, and is on the advisory board of the Sunlight Foundation.

Update 27/01/2013 : European Commission VP Neelie Kroes Weighs in on Aaron Swartz

Bravo Madame Neelie Kroes for her post, especially to emphasize that ‘if our laws, frameworks and practices stand in the way of us getting all those benefits, then maybe they need to be changed‘ sharing ‘when information was already paid for by taxpayers, and when more openness can help new innovations and scientific discoveries‘.

You’ve probably seen the terrible news about the death of Aaron Swartz. It’s always horrifying when someone so young and so clearly talented feels they have no option but to take their own life. I know that this is something that shook the internet community deeply. And my thoughts are with his family, and what they must be going through right now.

This was a man who saw that greater openness can be good for citizens, and good for society. Hugely disruptive — but hugely beneficial.

For me, the case is particularly clear when there aren’t copyright issues, when information was already paid for by taxpayers, and when more openness can help new innovations and scientific discoveries.

I would never condone unlawful activity. But in my view, if our laws, frameworks and practices stand in the way of us getting all those benefits, then maybe they need to be changed.

Agree or disagree with his methods, Aaron could see the open direction we’re heading in, and its benefits. In the meantime, those scientists who are paying tribute by making their own work legally, openly available aren’t just showing their respects — they are also benefiting scientific progress.

Update 21/01/2013: Still more is written after Aaron Swartz’ suicide. More clarification of accusations and procedure. More tribute to who he was and what he represented.

I keep curating on my Pearltrees to share, of course free to access. Many voices are asking for a better clarification of the CFAA, <a href="“>the Computer Fraud and Abuse Act. said too be too broad: the CFAA covers anyone who “knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer…”

Update 16/01/2013: Two developments bring more light tothe charges against Aaron Swartz.
First document on the point of law, is the part one of Orin Kerr « Activities for Gun Appreciation Day – The Criminal Charges Against Aaron Swartz (Part 1: The Law)
The second document tries to find answer to the question of ” when and how the Federal government first got involved in the investigation of the JSTOR downloading and what role MIT had in the Feds getting involved.” ‘The December 2010 Black Hole in the Network Interface Closet‘ by Emptywheel.

Two months before his death, the high-profile Internet activist filed a Freedom of Information Act request with the US Mint and asked for copies of its 2005 survey results which claimed, “147 million adults continued to collect the 50 State Quarters … the most successful coin program in the nation’s history.”

In the same continuity, for Jason Leopold, Truthout, ‘Aaron Swartz’s FOIA Requests Shed Light on His Struggle‘.

Many areas of trouble that might never get cleared.

Interestingly, the Guardian reports that the husband of the US district attorney involved in the prosecution has publicly criticised the activist’s family for accusing his wife. ‘Aaron Swartz: husband of prosecutor criticises internet activist’s family

Reading dana boyd, Lawrence Lessig, Cory Doctorow, James GRIMMELMANN, the EFFs farwell, The statement from the family and partner of Aaron, and other tributes to Aaron Swartz, few things come to my mind. What is essential is to understand his message and how to avoid future loss like this. After all, every suicide is there to send us a message, isn’t it?
1- As I have already wrote about, there should be a hierarchy of norm and copyright defense should come after more fundamental Human Rights.
2- The Computer Act is too broad, this is real fact as well exposed by the EFF.
3- Aaron Swartz act should be judged in view of his ‘aim’ why did he accessed the computer network? Had he any personal or commercial aim? surely not. He was opening up access to research papers, publicly funded to which the public could not access.(Read: ‘The Truth about Aaron Swartz’s “Crime”‘ and ‘Aaron Swartz and the Meaning of “Public”)
4- Aaron Swartz’ act after all was nothing else that of a whistle blower act, as such he needed a protection. Accusation wanted him to be an example, he deserved to be an example of successful freedom fighter, a hacktivist. (the #PadfTribute opens up access to academic research after the suicide was known).
5- As his family said: “Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach.” Lawrence Lessig qualified the act of Prosecutors as ‘bully’. 35 years is a lot. I personally have never been comfortable with the cumulative sentence system.
6- And most of all, why did he decide to commit a suicide? Why many others have done it?
He sent out a message that needs to be decoded. Would he have committed a suicide if he was supported? his acts were in a way ‘heroic’ as such, he deserved ‘solidarity’ to fight for the rights he should not be let alone to fight.
He was an activist, a fighter, like many others to whom we owe the progress of our societies.

P.s. : Just reading Jilian York’s piece reporting from Ethan Zuckerman :

Ethan says it best:

(And some of that shame should be shared by all of us who didn’t fight harder in his defense, either because we thought he was reckless or because we thought prosecutors would relent.)

Keep updated on my Pearltrees curations

Posted by: Clarinette | September 25, 2012

Facebook bug on the news

Update Tuesday Numerama:

The CNIL not convinced by Facebook’s explanations is investigating the social networking site.

Numerama

“Interrogée par iTélé, la ministre déléguée à l’économie numérique a jugé que “la direction de Facebook est aujourd’hui incapable de nous donner la moindre explication sur ce qui s’est produit”. Et les hypothèses avancées dès lundi ? Elles ne sont pas crédibles pour Fleur Pellerin.”

“Aujourd’hui l’incertitude la plus totale règne, et les explications de Facebook ne sont pas très convaincantes. [...] Si jamais il y a vraiment la certitude que des messages privés ont été rendus publics, et qu’il y a donc rupture des conditions de confidentialité qu’ils ont signés en ouvrant un compte sur Facebook, je leur conseillerais bien sûr de porter plainte. C’est inadmissible”.”

Fleur Pellerin reconnait les limites de l’applicabilite de la loi francaise a une entite non EU:

“Le problème c’est son application, notamment à des acteurs qui comme Facebook ne se soumettent pas forcément aux législations nationales ou qui sont difficiles à soumettre à la législation nationale”

* * *

If you live in a bubble and had not yet heard about the Facebook controversial bug, I invite you to have a look at my curation of articles on the subject.

Briefly, it came out yesterday from the French magazines Metro and the serious Le Monde that Facebook would have published old private messages to public time lines (or wall) to anyone to read.
Facebook rapidly denied as published by Techcrunch. However many users, mostly in France but also in the UK, US, and Canada told me they had seen their private messages publicised.

The California-based social network said in an email response to an inquiry by Agence France-Presse.

“A small number of users raised concerns after what they mistakenly believed to be private messages appeared on their Timeline,”
“Our engineers investigated these reports and found that the messages were older wall posts that had always been visible on the users’ profile pages.”

The French Ministers of economy, Arnaud Montebourg and Fleur Pellerin have been discussing with FB authorities. Probably not fully convinced, they sought more answers from FB to provide “clear and transparent explanations be given as soon as possible” to clarify “the exact nature of the problem”.
Facebook is to meet with the CNIL (National Commission on Information and Freedom), the French data privacy authority on the 26th of this month.

Maybe this was a users’ mistake, the threat is there. I am not personally convinced with the argument that the two data base are kept separately. What about a human misconduct? the panic seems to have originated from since old data had appeared on Time Line. if these posts were public, it is interesting to see how users can be chocked by looking at them today, taken out of context, later on.

Facebook shares have gone down for more than 8 points during the night. Privacy, even on a Social Media exists and has to be protected. how impose a ‘free’ platform to protect the privacy of its ‘products’ that are FB users?

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