Apr 1
icon1 Rob | icon2 Law, Society | icon4 04 1st, 2008| icon3Comments Off

I must admit that at times I display a distinct naivety in my approach to life. I like people. I trust people. Sometimes my own experiences have provided me with reason to behave this way. For example, I worked for many years at the Government Law Center of Albany Law School. While there, I met lots and lots of people who worked in Government. Local government. State government. Federal government. Legislators. Executive staff. Judges. And on the whole, the people I met who made their careers in government were good, caring people who wanted to make a difference. Sure, I met the power hungry and the self-indulgent, but they were the exception, not the rule. I have a lot of respect for people who work for their fellow citizens and try to do, on a daily basis, what is right.

But then I am confronted with something like this in today’s Guardian newspaper (via Current Awareness from the Inner Temple), and my respect is eroded (and replaced with disdain, to be perfectly honest):

Judges admit they get round law designed to protect women in rape trial

Judges have undermined a law intended to stop defence lawyers cross-examining women in rape cases about their sexual history, by continuing to insist on their discretion to allow it, a new book discloses.

Interviews with 17 judges in London and Manchester found that some insisted they still had a wide discretion to allow questions on sexual history, although the law was changed in 2000 to impose severe limits on questioning.

One judge described the provision as “pretty pathetic because it’s get-roundable”.

Another said: “I’m not one for being unduly fettered. I’ve been appointed to do a job on the basis that I have a certain amount of judgment, and to be fettered or shackled by statutory constraints I don’t think helps anybody.”

This should be a scandal of the highest level, but it doesn’t look like it will be. The story is buried in the criminal justice section of the newspaper. Maybe that’s one reason why English judges continue to hold such views and to brazenly flaunt the law. And I thought judges were appointed to protect the public, not to impose their own misogynistic views on others despite legislation telling them specifically to stop (how else can you defend a judge who says he doesn’t want his discretion to be “shackled” — even the language used points out the disdain with which he holds women, especially women accused of rape). Depressing.

Link to the book by Jennifer Temkin and Barbara Krahé.

Mar 31

Via the Patry Copyright Blog, it seems there was a bit of an interesting discussion over the advertisement run in the UK for Transport for London and created by folks at or associated with WCRS. The interest was not so much over the advertisement itself, but over the fact that the idea (and perhaps more, see below) was based on one developed in 1999 by Prof. Daniel J. Simons at the University of Illinois in the U.S. (note, java required to see the original). The story has pretty much run its course (I was working on a law review article over the past two weeks, and pretty much stayed out of daily news), with the good Professor not pushing the matter.

Even so, there are two (largely unrelated) parts of this story that I wonder about. The first is the overly legalistic response from the advertising agency in question, and the second is a post which seems to argue that if used to achieve a laudable end, even copyright infringement should be allowed.

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Mar 11

William Patry writes about a recent U.S. Federal District Court decision that is “a masterpiece of analysis and witty writing” (Ricky Gervais Inspires Copyright Opinion). Patry quotes from the decision (citations omitted):

For example, presuming Shakespeare’s poetry was subject to copyright, an aspiring poet might purchase a collection of his sonnets and select one to serve as the inspiration for her own poem. She might select Sonnet 18 and attempt to emulate the poem’s depiction of unwavering beauty by borrowing his iambic pentameter and even a word or short phrase, fully intending to write a poem that will usurp the Bard’s virtual monopoly on romantic sonnets and win fame and fortune for herself in the process. The aspiring poet’s motives are of no moment so long as the final product is not substantially similar to the original.

In this case, the Court has already found that, like the aspiring poet, Harwood and Moore used SMS’s works to create ASP’s. Even if they smuggled copies of SMS’s programs and poured over them, redlining and rewriting, such “intentional dissimilarity” is permissible.

From, Situation Management Systems v. ASP Consulting Group, F.Supp.2d —-, 2008 WL 538808 (D.Mass.)(available here), Civil Action No. 06-11557-WGY.

What’s particularly interesting to me here is that this case would likely be decided differently in the UK (at the very least the analysis would be distinctly different).

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Mar 6
Of Optimism
icon1 Rob | icon2 Intellectual Property | icon4 03 6th, 2008| icon3Comments Off

Cory Doctorow at BoingBoing tells of a talk by John Perry Barlow given at the O’Reilly Emerging Technology Conference:

Today at the O’Reilly Emerging Technology conference, I attended the Electronic Frontier Foundation’s panel, “On a Brighter Note…”, a talk about why we should be optimistic about the future of technological liberty. I took a ton of notes and uploaded them.

John Perry Barlow, EFF co-founder: I am still optimistic. I didn’t expect that the entire wealth of the industrial period would gracefully allow us to render them irrelevant. They’re putting up a spirited fight, but I don’t think they’ll win. Victory comes to the patient.

Cory concludes:

Can we come up with a regime for regulating the economy of ideas and the way of getting paid for work you do with your mind that doesn’t treat thought as a noun and therefore subject to being treated as property. The IP system is a gigantic kludge of patches that have been laid on in different regimes, as it all goes to bits, it needs to be harmonized with a regime that recognizes that this regulates the relationship of the creator and the audience.

I’m not sure this is the right question, but it’s at least worth thinking about.

Mar 5
“You can’t make this stuff up”
icon1 Rob | icon2 Technology | icon4 03 5th, 2008| icon3Comments Off

There are times that technology actually changes things. As Michael Froomkin of discourse.net tells it, “To Really Foul Up Requires a Computer” (citing theinquirer.net):

You can’t make this stuff up.

Secret Airforce One flight data sent to Suffolk tourist web site:

SINCE 2001, the US air force has been sending highly confidential emails including the flight plan for the presidential jet, Air Force One, to an English factory worker who runs a Suffolk tourism website.In the late 1990s, Gary Sinnott, of Mildenhall in Suffolk, near Cambridge, set up the website www.mildenhall.com, to promote his hometown. He soon became inundated with emails meant for airmen at the US airbase at RAF Mildenhall, where personnel email addresses end in mildenhall.af.mil.

It was all harmless enough when the emails were mundane messages to friends and silly videos, but soon Sinnott discovered that he was also getting battlefield strategies and military passwords sent straight to his inbox.

Note: theinquirer.net, a mildly scurrilous but generally well-informed British technology e-rag is not to be confused with a supermarket tabloid of a similar name.

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Mar 5

Some things just never die. In 2007, the UK House of Commons investigated extending the term for copyright protection for sound recordings from 50 years (which it is now) to 70 years. The Government ultimately decided not to pursue the extension, much to the dismay of its supporters. But now, less than a year later, the idea is back, this time in the form of a private member’s bill in the House of Commons. That something might actually be happening in this regard was brought to my attention courtesy of the IP Kat’s Jeremy Phillips, who says:

According to a tiny article in The Times Online on Monday,

“the [UK] Government has indicated that it will support a policy change that will allow pop stars to earn more money from their recordings. Andy Burnham, the Culture Secretary, said that the Government would revisit its opposition to extending the copyright term on sound recordings from 50 to 95 years”.

There’s nothing on the Department of Culture, Media and Sport website to substantiate this, though. Can any wise reader put the IPKat right as to what’s going on?

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Mar 5
When news isn’t news
icon1 Rob | icon2 Technology | icon4 03 5th, 2008| icon3Comments Off

From the Telegraph:

A man will become the first person in the UK to stand trial next month accused of harassing a woman on Facebook.

Michael Hurst has pleaded not guilty to harassing ex-girlfriend Sophie Sladden via the popular social networking website.

This, to me, isn’t particularly news. Someone has harassed someone else. They’ve used Facebook to do it. Was it important that it was Facebook? No (so the specific technology in question isn’t particularly important). Is Facebook itself alleged to have done anything wrong? No (so the technology’s operators are not somehow at fault). Is this something that could have occurred without Facebook. Yes (so it is not a “new” crime). Did Facebook make it easier to commit the alleged crime? Perhaps.
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Mar 5
Plasticity and Ends
icon1 Rob | icon2 Technology | icon4 03 5th, 2008| icon3Comments Off

Ann Bartow at Feminist Law Professors writes:

“Viola’s Bookshelf is a new project blog dedicated to publishing altered out of copyright, or creative commons licensed fiction, where the character’s genders have been reversed. The idea behind this is to help provide an understanding of gender construction in fiction and to an extent in everyday life.”

Viola’s Bookshelf is here. Via Hoyden About Town.

Once electronic textbooks are more usable and adaptable, it would be interesting to do some gender bending of the language of judicial opinions, to see if holdings, and the rules derived from them, still sound reasonable and just. See generally.

This is a fascinating exploration, and I’m looking forward to reading some of the pieces. One thing that strikes me about it, however, is that it is one of those things uniquely facilitated by information technologies. Without an electronic (or online) and easily adaptable version of the text, this exercise is much harder. Not impossible; one could retype (using a typewriter, perhaps) a published book, being careful to make all the changes required. But it would be a long, difficult, paintstaking process. But because of information technology — specifically computers — you can do search and replace, checking each one to see whether context dictates a change. That is, the plasticity of electronic versions allows us to more easily adapt them to our own ends. Then, because of the Internet, you can distribute it widely for others to consider. Excellent.

Mar 4
The Trusted Technology Fallacy Strikes Again
icon1 Rob | icon2 Technology | icon4 03 4th, 2008| icon3Comments Off

A few days ago, Ed Felten at Freedom to Tinker wrote about a new paper he and eight other authors have written concerning the ability of an attacker (physical) to access all the contents of an encrypted hard drive (the paper is linked from here). He followed up with a second post to clarify some things that had arisen in response to his initial post. For me, the most interesting bit is this:

“Fundamentally, disk encryption programs now have nowhere safe to store their keys. Today’s Trusted Computing hardware does not seem to help; for example, we can defeat BitLocker despite its use of a Trusted Platform Module.”

This ties in to posts I have made in the past about the “Trusted Technology Fallacy.” The basic premise is that we are wasting our time in searching for technology that we can trust to solve our problems. In fact, technology is not even particularly good at solving the problems that it itself has created.

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Mar 4
We’re Back . . .
icon1 Rob | icon2 Technology | icon4 03 4th, 2008| icon3Comments Off

This blog used to be here. Now it’s here. Too much going on not to comment and analyse (or analyze) what’s happening. Look here for regular updates.