Farcebook

I'm pretty sure the Facebook hysteria now qualifies as a moral panic. We've named a problem ("loss of privacy"), identified it with a public enemy (Facebook is obviously tailor-made for this role; Google might be an even better fit, but - well, they drew a long straw this time), abused tens of thousands of innocent words on describing and discussing and distancing ourselves from The Problem. Now we're at the stage where lawmakers have got in on the act, and Congress is grandstanding at Mark Zuckerberg.

That's worrying, because moral panics generally end in new laws to crack down on some pastime that had, up to now, been classed as - if not exactly virtuous, then at least not harmful enough to be worth the loss of freedom entailed by passing laws about it. Think legal highs, dangerous dogs, alcopops, motorcycle gangs. And the pastimes at stake here - communicating with friends and family, networking, personal publishing - are, basically, everything that is best about the internet. If politicians come to see "social media" as something that needs to be clamped down on, then it's hard to imagine any result that would leave blogs like this one untouched. (The British government is already going this way: its recent changes to press regulation are clearly designed to stifle independent comment, while keeping the press barons onside. It's not, in itself, fascism - but it's one of its building blocks.)

I imagine, by now, just about every country with any kind of commercially-driven media sector has had its say on the Facebook panic. Here is what someone who passes for a media commentator in New Zealand has to say. And I think it's an instructive study in how moral panics - as well as their direct dangers - are also susceptible to hijacking by special interests.

Look at the headline: "Govt needs to protect Kiwis from Facebook's power". Explicitly calling for government action (i.e. new laws), explicitly aimed at Facebook. The writer criticises Facebook - not for collecting data, nor for slinging "targeted" ads, but for doing all this from abroad. "Fundamentally", he says, "we need to have a voice with these overseas organisations who are increasingly playing such an important role in the daily life of New Zealanders". On the other hand, you can "trust local retailers and organisations who have no agenda apart from being useful and understanding you".

Yeah right.

The author, one Ben Goodale, is a frequent contributor to the New Zealand Herald. More germanely he's described, in an easily missable footnote, as "the managing director of justONE". I didn't know what "justONE" is any more than you do, but its website describes it as "New Zealand's pre-eminent data-driven marketing, CRM and loyalty agency".

So no, the stench of self-interest that rises from this drivel is not just our imagination.

Note to every legislator: Facebook is a publisher. (Zuckerberg denies this, on the grounds that Facebook doesn't create the content, and it's "a technology company". In other words, he doesn't know what a publisher is.)

You know how to regulate publishing. You've been doing it for hundreds of years. Don't let the new technology and associated gobbledegook blind you to that simple fact: Facebook needs to be treated exactly like every other publisher. How would you react to a publisher that surreptitiously gathered data on people, then carelessly shared that data with third parties?

NZ already has a perfectly good privacy law that covers that scenario, but for some reason nobody has ever thought to apply it to Facebook. We don't need new laws, and we don't . We just need to enforce the laws we've got.

Poisoning the cloud

A lot of Europeans seem to have got their knickers in a twist over Microsoft's plain speaking on data protection. Stripped to its essentials, the CEO of Microsoft UK said that Microsoft doesn't do data protection as required by EU law, because US law explicitly forbids it.

I can see why this causes some consternation, but legally it seems quite straightforward to me. Microsoft, by its own account, can't provide a "safe harbor" for personal data on European citizens. Therefore, any European company that tries to store such data in a Microsoft-provided "cloud" service is opening itself to legal action from its European customers (and/or European governments, prosecutors or regulators, depending on the individual country's law). Those companies, in turn, might sue Microsoft for misrepresenting its service (before last week, at least), and they and Microsoft might sue the aforementioned governments and regulators for losses arising from negligence in applying their laws.

All of which could get messy, sure, but it's hardly the gutters-running-red-with-the-blood-of-the-aristocracy.

The interesting question is, why has Microsoft gone out of its way to declare itself incompetent to serve European data storage?

Simple answer: it doesn't want the business. Much better for Microsoft if people don't store data in clouds, but instead spend tens of thousands of dollars on licenses for SQL Server, and training on how to administer it. That's where the profit is.

Of course, in poisoning its own cloud, MS has also poisoned Google's - and every other US company, for that matter, but Google is the one it cares about. And to Google, the cloud isn't a low-margin fringe activity - it's a whole business model.

So what does Google have to say on this story? Not a word, as far as I can tell. Google is just waiting for the whole thing to blow over.

I wonder if a European, at this point, can take out an injunction to prevent companies she does business with from storing their data outside European jurisdiction? Seems to me that the prospect of a jail term for contempt of court would give CEOs more pause than the distant threat of a corporate fine.

Just something for you Europeans to mull over.

"No soul to be damned, no body to be kicked"

There's a possibility you've missed the story of Dr Peter Wilmshurst, a consultant cardiologist at the Royal Shrewsbury Hospital, being sued by Boston-based NMT Medical over alleged comments about the conduct of a trial that he was, at one time, lead investigator for.

Summary: NMT sponsored the trial of a treatment that it thought could benefit chronic migraine sufferers. The trial showed, fairly conclusively, that the treatment - which is both expensive and invasive - doesn't work. For reasons that I'm not fool enough to go into here, the final published paper glossed over the negative result, hinted at more positive effects (beyond the scope of the original trial parameters) that could be deduced by suitably massaging the data ("excluding outliers"), and ignored potentially serious side effects arising from the procedure. Dr Wilmshurst and one other investigator withdrew their names from the paper before it was published, and Dr Wilmshurst was so indiscreet as to talk about the whole fiasco at a conference in Washington in 2007. His comments were published on the web, and from there it's only a short hop to the High Court.

There's so much Wrong in this story that it's hard to know where to begin. It's wrong that a US company can sue a person under English law for something said to a conference in the US. It's wrong that a speech made - on-topic, by an eminently qualified person - at a technical conference, should be the subject of legal proceedings. It's wrong that lawyers and judges, of all people, are being asked to judge the validity of medical trial methodologies. It's wrong that Dr Wilmshurst has, so far, spent the price of a medium-sized house on his own defence; what exactly are his lawyers doing, to earn that sort of money? It's wrong that he has no prospect of ever getting that money back, since (a) most US courts will (understandably) refuse to enforce an award ruled by a UK libel court, and (b) if he wins, the company will probably be broke anyway. It's utterly, indefensibly, inexplicably wrong that a company can sue for libel - a law that's supposed to protect the reputations of people - at all. This case is the epitome of asymmetrical justice.



And not least, it's wrong that you and I only hear about the whole story through blatantly partisan blogs (like this one). Because, while I know nothing about Dr Wilmshurst personally, I know that he chose to have this fight. And there are plausible people on the other side of the case.

But what's most wrong of all is that NMT's directors are doing the right thing.

If their flagship product doesn't work, their company is in big trouble. It is clearly the directors' duty to do everything in their power to obscure that fact and continue to milk money out of the structure of gullible, vulnerable patients, susceptible doctors, and equally amoral insurers that, collectively, represent their meal tickets. Already the company has lost over 90% of its share price; a decisive victory for Dr Wilmshurst could wipe it out.

It's not optional. NMT's directors have to be as unscrupulous, vicious and amoral as inhumanly possible. It's their duty to their shareholders; anything less could get them sued.

Welcome to the world we've built ourselves. Not only do we reward amorality - we demand it.

Hate to say "I told you so..."

Ah, who am I kidding? I love to say that. Who doesn't?

According to figures released by the Insurance Institute for Highway Safety - an American outfit, natch - laws banning texting while driving may actually increase the rate of accidents.

The irony is strong in this one.

One suggestion is that offenders don't change their behaviour, but do start trying to conceal it, by holding their phone lower - thus taking their eyes further from where they're supposed to be.

Whatever. To me, it just highlights what I said at the time: this is a stupid law, enacted by people who were either dumb, or playing dumb, or just plain corrupt.

When a law whose purpose is to improve public safety turns out to be not merely ineffective, but actively counter-productive - what should we do about it?

If the answer turns out to be "repeal the law", I'll be amazed.

ACTA - the fair, the bad, and the just plain silly

The full negotiating text of the long-secret 'Anti-Counterfeiting Trade Agreement' has finally been released.

As everyone and her dog has long known, the agreement has little to do with "counterfeiting" as we English-speakers know it ("trying to pass something off as something else"), but is rather about protecting the revenue streams of the US congress by "harmonising" international copyright law. Apparently, the six existing international treaties on the subject just aren't cutting it. True counterfeiting (trademark infringement) does get a mention, but it is very much an afterthought. The real meat is all in 'copyright'.

In the Kafka-esque process of negotiating this secret treaty, there have been several rounds of "consultation" in which we, the public, have been invited - albeit very quietly - to comment on various aspects of the text that we've never been permitted to see. In the last such round, I sent in a short submission to the NZ delegation on the aspect that most bothers me, which is an area known in NZ law as "technological protection measures".

TPMs sound complicated and obscure, but in fact they're not nearly obscure enough. They are what prevents you from playing your Region 1 DVD in a Region 2 DVD player, from using your backup copy of your software CD, from copying the text from your legally-purchased e-book, from saving a streaming media file to your desktop to listen offline.

All of these actions are, at least in NZ and the UK, explicitly permitted by law - that is to say, a copyright holder has no right to prevent us from doing them, without asking permission, even if they want to. Yet TPMs are used to nullify those laws and stop us anyway. And - and here's the kick in the teeth - the publishing industry wants it to be illegal to "circumvent" a TPM, regardless of the circumventor's motives or their use of the product. That is what I'm fighting to keep out of NZ law.

In the event, the text is so convoluted that it's hard to see who's winning. Omitting footnotes, and condensing without loss of meaning (note: ellipses mark excisions for brevity; square brackets are in the original):

Effective technological measure means any technology ... that, in the normal course of its operation, [controls access to a protected work, performance, phonogram, or protects any copyright or any rights related to copyrights.][is controlled by the right holders through application of an access control or protection process such as encryption, scrambling, or other transformation of their works, performances or phonograms, or a copy control mechanism, which achieves the protection objective.]

[4. In order to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, [performers or producers of phonograms] [the right holder of any copyright or related rights or owner of an exclusive license] in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works... each Party shall provide for civil remedies, [or] [as well as] criminal penalties in appropriate cases of willful conduct, that apply to:

[Each Party shall provide for adequate legal protection and effective legal remedies... against the circumvention of effective technological measures that are used by authors, performers or producers or phonograms in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances, and phonogram. These shall apply to:]

(a) the unauthorized circumvention of an effective technological measure [that controls access to a protected work, performance, or phonogram]; and
(b) the manufacture, importation, or circulation of a [technology] ... that is: [marketed] or primarily designed or produced for the purpose of circumventing an effective technological measure; or that has only a limited commercially significant purpose or use other than...

I think I begin to see why the Americans finally agreed to let this be published. The various options and alternate clauses are so divergent, I could be headed for a famous victory or a disastrous defeat; it's literally impossible to tell.

A TPM may be something that "controls access to a protected work... protects any copyright or any rights related to copyright [name three - Ed]". Or alternatively, it may be something that "is controlled by the right holders through application of an access control or protection process". It doesn't take a Hallam or a Holmes to see that these are two very different definitions - one based on what it does, the other on who does it. Then comes a third definition, much better than either of these: measures "that restrict unauthorized acts in respect of [protected] works".

It would be tremendous vanity to see my own fingerprints here, but that last version is exactly what I'm aiming for: tying TPMs to the limited set of rights that they are allowed to protect. An act that is explicitly protected by law cannot be "unauthorized" - therefore, something that restricts it is not a TPM within the meaning of this text.

All is not lost. There is plenty of text here that, if allowed to stand, would make a decent, liberal, liveable treaty. There is also some extremely bad text that, if allowed to stand, would enforce a new world order in which you could no longer lay claim even to the contents of your own memory. Which way will it go?

Mistrust, mistakes and misdirection

Remember Britain's "War Crimes Act"? Passed in 1991, amid a faint public hysteria at the thought that if foreign bad guys took refuge in the UK, we couldn't prosecute them. The headline baddies at the time were aging Nazis who may or may not have been living in Britain for years, but there was always an assumption that the long arm would also scoop up truant Serbs, Russians, Chechens, miscellaneous Africans, and others who might be prone to attract adverse media coverage to their atrocities. Basically, the law allows certain categories of criminals to be tried in British courts if they are foolish enough to come within their reach, even if what they did was legal in their own country, and even if it happened long before the law was passed.

I know, I know. A lot of us said so at the time. But you can't argue with Nuremberg, and that's the precedent. A perfect illustration of hard cases making bad law.

In the news today, that law has come back to bite Britain in the proverbial. Hearing the news that Tzipi Livni, a former Israeli government minister, was due to visit London, some enterprising Palestinian activists went to a magistrate and got a warrant issued for her arrest. Ms Livni promptly cancelled her visit.

(I did always like to dream of doing that to George W Bush, but it was hard to find anything concrete to pin on him. "Starting a war on false pretexts" is not considered a crime nowadays, even though it was in 1945. Plus, he never visited.)

Anyways, the British ambassador in Tel Aviv was hauled before the Israeli foreign minister and given a stern lecture about what would follow if Israeli government officials decided they could no longer visit the UK. Normally these affairs are couched in diplomatic language, but based on the British government's reaction ("This can never ever happen again"), I can only imagine this one was pretty brutal. The Israeli government waxes indignant still. Deputy foreign minister Danny Ayalon splutters that the whole thing "makes a mockery of universal jurisdiction".

I've always thought that "universal jurisdiction" was a silly idea. (Something I have in common with Henry Kissinger, apparently.) Although let's not forget it was originally an Israeli idea in the first place.

But never mind the hypocrisy of all parties concerned here. Frankly, between Palestinian terrorists, Israeli politicians and the British foreign office, this looks to me like a perfect opportunity to reintroduce trial by combat. What really bothers me about this story is what the British government is promising to do next.

Foreign secretary David Miliband says: "The procedure by which arrest warrants can be sought and issued without any prior knowledge or advice by a prosecutor is an unusual feature of the system in England and Wales. The Government is looking urgently at ways in which the UK system might be changed in order to avoid this sort of situation arising again."

It's not about making sure Israeli ministers can visit safely. If that was all they wanted, they could just give the woman diplomatic immunity. What Mr Miliband is talking about, here, is establishing political control of an inconveniently-independent judiciary. No warrants to be issued unless a prosecutor - a political appointee - says so.

Now, Britain's law lords are, as a rule, neither stupid nor shy. I don't imagine that they'll fail to see this move and block it, which shouldn't be too hard. My guess is that by the end of the month, the government's proposals will have quietly morphed into amending the War Crimes Act to raise the bar for issuing a warrant (which is clearly what they should have proposed to begin with). But the whole episode is interesting for the light it casts on the thinking of the current crop of politicians: "If it's going wrong, take it over".

Which goes back to the issue of trust.

Delegation demands trust. As long as you trust your underlings, you can give them jobs to do and then let them get on with it. Modern life teaches us to think of "control" as something absolute, fine-tuned, responsive - the kind of control we have over a car, over our phone's ringtones, over our own webpage. But politics is supposed to be more subtle than that. In politics, no matter how powerful you are, you have to let other people make decisions. That's what politics is.

Because they will make those decisions anyway. You can't stop them. You can lead them, but only if you're willing to treat them as "on your side". And that means identifying your interests as, if not identical, then at least aligned with theirs. The skill of politics is to persuade other people that this is, in fact, the case.

But If you treat your underlings as enemies, they will take on the role. What choice do they have?

The worst laws money can buy

Sometimes it seems the only advantage of a small democracy is that the corruption is more transparent. This morning's news: New Zealand has joined the shameful list of countries that ban cellphone use while driving, unless you're using a hands-free set.

All commentators agree that the evidence is quite unambiguous: hands-free cellphone use is just as dangerous as handheld. Yet no-one seems to question that part. In particular the ACT party, which makes a lot of noise about opposing government interference in private lives, is saying what a great idea it is.

Because ACT, like most right-wing "liberal" parties, couldn't care less about government interference so long as there's an option to buy your way out of it. Take away the hands-free clause, and they'd be yapping like an abandoned Pomeranian.

Memo to all governments everywhere: Good laws are ones that are just as inconvenient for rich people as they are for poor people. If you can pay to get away with something - that's not a law, it's a corruption.

Cellphone operators are in favour (well, naturally - it expands the cellphone-accessories market). Police are in favour, although their motives are less clear. After all, there's already a perfectly good law against careless driving. Talking heads are spouting incredulity that some people actually have the nerve to text while driving, taking their eyes off the road for up to five seconds at a time! What are they thinking?

Well, I've done that. If I'm sitting in a traffic jam, with no prospect of moving at all for 30 seconds or more, why exactly is it dangerous for me to take my eyes off the road for a few five-second intervals?

But does the law take account of traffic conditions? Does it hell.

It could be worse. In New South Wales, apparently it's now illegal to cross the road while wearing earphones.

Now, I'm walking to work these days. 25 minutes each way. It's some quality iPod time. In the process, I have to cross five roads. Only one of these crossings is at all hazardous; of the other four, one is at a zebra crossing, and three are extremely quiet roads - I can just look both ways, then stroll across with no moving cars in sight at all. But in NSW, I'd have to take the earphones out and interrupt my enjoyment of my podcast.

Five times. Each way.

Way to incentivise me to get back in my car, guys.

A wizard wheeze

I don't know how I came to miss this story when it broke last month...

Apparently, J K Rowling is being sued for copying some elements of Harry Potter from an earlier childrens' work, Adventures of Willy the Wizard. Rowling's publisher, Bloomsbury, vigorously defends the claim.

Interesting that the media instinctively turns to the publisher for a response. Nobody mentions whether Rowling herself has said anything. (Has anyone even asked her? I wonder.)

The author of Willy is dead and in his grave. But his family, who apparently took until 2004 to notice the existence of Harry Potter, are now suing Rowling. They claim she stole key plot elements, including: a wizard schoolboy competing in a magic contest, a wizard train, a wizard prison, a wizard school, and a wizard rescuing hostages from half-human creatures in a bathroom.

Wow, that must be a pretty action-packed 36 pages.

And on this basis, they're asking for £500 million from Rowling. Which, according to the Sunday Times rich list, is about five-sixths of all the money she's made from her 3,500 pages of writing.

Is there anyone who is still willing to say, with a straight face, that copyright is not being abused here?

In unrelated news, secondhand copies of Adventures of Willy the Wizard are now commanding prices into three figures.

Maybe - just maybe - this case will weigh ever so slightly in the scales when Bloomsbury next considers its policy, as regards copyright protection of minor plot elements.

Vicarious road rage

Some days I don't know which is worse: Auckland's demented road rules, its drivers, or its journalism.

This offensive piece from yesterday's Herald tells the plaintive story of a motorist complaining about being ticketed for an illegal left turn. He points to the "Turn left" sign that appears just a few metres before the very clear "No left turn" sign that he defied.



What the Herald doesn't mention is what I realised the moment I saw the photograph, what is obvious to any honest person on the road, and what the journalist could've learned with three minutes of research: that the "Turn left" sign applies to a completely different lane.

See, I know that junction. I used to take it on a daily basis. At busy times, there's often a very long queue of motorists trying to get onto the motorway. And there exists the option for antisocial scumbuckets to save themselves a good seven minutes or so by zipping straight past that queue in the sparsely-populated lanes reserved for people heading to Newmarket, then making that clearly-illegal left turn. Google Streetview gives a fairer impression of the road:



And that's what this git is complaining about being pulled up for. He vows to fight a $150 fine. And he expects sympathy from us, the public, in his righteous struggle.

(Do you think everyone else on the road is just queuing up for fun, because they've nothing better to do with their time? Do you enjoy cutting into the proper lane at the last possible moment? What would you do to get home ten minutes earlier? Would you cut off an ear? How about an eye? You could wear a cool eyepatch over it and make up some tacky story about a terrifying hostage rescue, so that no-one need know it's part of a Faustian bargain to save you from missing the start of Shortland Street. No? Then why are you so happy to maim your own soul like that? Don't you feel it twitching inside you, gasping, dying a little more, every time you brag about shaving another 40 seconds off your commute? Or has it already shrivelled to a leathery, walnut husk, like that of an estate agent or a newspaper columnist? Do you feel a smug, sick pleasure in knowing that right-thinking drivers around you fantasise about dragging you screaming from your cosy driver's seat, kicking you brutally in the stomach, and leaving you by the side of the road to choke in a pool of your own blood and vomit? Or would you secretly welcome it as a blessed release? The Jerry Springer team would like to hear from you.)

I'd like to see him appeal the fine. Really I would. Then I'd like to see the court order that his car be crushed in front of his eyes, without giving him time to take his personal effects out first. This is the kind of crime we really need to clamp down on: the kind that is not motivated by anger, but engenders it; the kind not driven by fear or hate or lust or any natural human emotion, but by cold, rational selfishness.

Contempt of court

Since you're not in New Zealand, you've probably never heard of David Bain. He's very big just now.

Depending who you listen to, Bain is either the unluckiest man in the country, or a mass murderer. Both terms in their most literal meaning. There is no middle ground.

The facts as we know them: at 7:09 on the morning of 20 June 1994, David Bain - then aged 22 - called the police, from his home in Dunedin, to report that his family were all dead. Police arrived to find that his mother, father, two younger sisters and young brother had been killed with a hunting rifle. Most of the victims were still in their rooms, but the father, Robin, who slept in a caravan in the garden, was in the lounge.

Beyond that point, the facts get more murky. If you want to know the ins and outs of the evidence you can Google it for yourself; suffice it to say here that the Bains were not a happy family. Incest, bullying and fear seem to have been the prevailing ethics. The crown says that David killed his own family before going out on his paper round to establish an alibi. The defence says that Robin killed the family, then shot himself and, deliberately or not, framed David.

In May/June 1995, David Bain was convicted of the murders and sentenced to life imprisonment. Over the next ten years, he steadily protested his innocence, and bits of evidence slowly dripped out that tended to support him. In 2007, the Privy Council ruled that evidence was strong enough to justify at least a retrial.

Right now, the jury is deliberating that retrial. Since they're sequestered - isolated from the media - it seems we're finally allowed to say out loud whether we think he dunnit or not.

Me, I'm not going to take advantage of that license. There's twelve people in Christchurch who have sat through three months of this stuff full-time. They know more about it than I do. I've done jury service; it's nothing if not intensive: for the duration of the trial, you really get to concentrate.

And yet, lots of ordinary people feel qualified to second-guess the jury.

It doesn't help that anyone with a decent professional job isn't expected to do jury service; they will invariably plead that they're too "indispensible" to give up their time. (The alternative is to face uncomfortable questions from their boss as to why they're not indispensible. To say nothing of a significant loss of income.) So it follows - to those people, at least - that juries are staffed exclusively by housewives, dossers, students and sundry other losers.

And believing that, who can trust them?

I really don't care much about the Bain case. But in general, on the whole, I'm for law. And I think that for the law to fulfil its primary purpose - to protect us all from vigilantes - it would be a great step forward if jury service were made compulsory: universal and unexcusable.

Update: It's taken the jury about a day to decide that Bain is not guilty, apparently. The judge told them to come to a unanimous verdict, and that's it. Evidently they don't think the prosecution did enough to prove its case.

The spinning of greed

This can't be good. The Musicians' Union is taking issue with the British National Party raising money by selling albums on its website.

For the benefit of my non-British readers: the BNP is a nasty organisation, unabashedly xenophobic and racist. British musicians are mostly, to a greater or lesser degree, bleeding-heart lefties. It's hardly surprising that the musicians take exception to their music being used to finance their enemies.

But apparently they can't stop it. Some idiot sold the publication rights to their songs, and now the BNP's merchandising arm, Excalibur, is putting them on compilation albums.

I'm reminded of Krusty the Klown: "They drove a dump truck of money up to my house! What was I supposed to do? I'm not made of stone!"

You sold the rights, losers. You could've negotiated contracts that left you in control of how your music could be sold and by whom - but that wouldn't have paid so well, would it?

So look at it this way. You made money by selling rights that the BNP is now exploiting. There's nothing to stop you now spending that money to campaign against the BNP. Unless, of course, you've already spent it keeping your teenagers in Ferraris, in which case that was your decision and I hope it went well for you.

You've also got two things the BNP doesn't have: talent, and a fan base. If you can't convert that into more solid votes than the less-than-5% the BNP routinely scoops, you're not trying.

But that's not what the Musicians' Union wants. What it wants is yet another extension to copyright law that would give musicians control over their own music, even if they've already sold it.

That's "moral rights", and in fact they already exist in British copyright law. Musicians have the right to object to "derogatory treatment" of their work, and if they really cared, they could try to make an argument that selling songs under a BNP-affiliated brand name amounted to "derogatory treatment". The courts may or may not support that interpretation, but we won't know until someone tries.

What the Musicians' Union seems to have in mind, however, is more. More rights to be given retroactively to artists who seem to be suffering from "seller's remorse". The Musicians' Union has a long track record of asking for contracts to be unilaterally rewritten in their favour. Last year it was extended copyright terms for sound recordings -- an argument for which there is no coherent case either economically or morally. This year, apparently, it's back to "control".

Let's not allow the BNP case to become a wedge whereby yet more rights get taken away from us, the consumers. Let the musicians use the rights they have, before complaining about those they haven't.

Bankers of the world could learn from the musicians. Here are wealthy people who have actually won public support for campaigns that amount to no more than "we deserve more money!" See, it can be done...

E-mail and the death of trees

I first used e-mail as a student, in the mid 1980s. Sadly I wasn't a particularly visionary type of student, and I didn't take much interest in it.

In 1997, when I got my first dial-up connection at home, things were different. By then nobody could miss what e-mail was, and I took to it like a banker to money. Within six months I had e-mail contacts on five continents, a good proportion of whom I considered "friends".

Combined with Usenet, the medium suited me to perfection. I now had a public profile and an active private correspondence. I loved to take my time writing, rewriting and polishing to put the perfect gloss on whatever I wanted to say. "Spinning", it might be called, and the medium was beautifully tailored to that. (Alas, this is no longer the case. Somehow I don't have that kind of time any more. Nowadays, even blog posts feel hurried.)

In that first rush of enthusiasm, I naïvely thought that e-mail was free; and as freely, I gave my address to everyone as my preferred contact method. Better, I thought, that I should receive junk mail in electronic form, rather than tree-eating paper.

What I hadn't thought through - and in retrospect it seems horrifyingly obvious, but the world looked different back then - was the economics of e-mail technology. It never occurred to me that people would send me e-mail without even caring whether I read it or not.



The story of my personal battle with spam is stirring, but long, and its ending is not happy. I have seldom managed to convey the depth of my hatred for spammers. I'm not talking just about pornographers, fraudsters, Nigerians offering money - that subject is quite exhaustively documented elsewhere - but the daily deluge of unwanted mails about the most tedious of subjects - drugs, holidays, used cars, penis enlargement, jobs in Chicago, Ukrainian brides, Bollywood movies, home-education courses in everything from acupuncture to zoophilia...

All of which is a long-winded way of introducing a story I noticed today: spam is "killing the environment", apparently.

That's a headline I can greet with qualified pleasure. Extremely qualified. We're talking fully bonded, industry-certified, Masters-educated pleasure here. It's nice to see an attack on the (still occasionally touted) fallacy that junk e-mail is environmentally benign, compared with junk paper through the door. But this study is commissioned by McAfee, who can't resist the temptation to imply that the problem could be solved by using their software.

Yeah, right. That's like treating depression by drinking yourself into a stupor.

No, the treatment for spam - if there is one - has to be legal, not technical, and it has to be directed at the people who pay for it, not those who send it. It's the economics of e-mail that creates the problem, and that's what has to be changed. For the recipients to have to buy and maintain spam filters - that's no better than paying protection money.

I wish Stephen Fry would mind his own business

Those of you who've been following for a while, who know my interests, and have invested a couple of points in observation skills, may have noticed that I didn't take part in the web-wide brouhaha over Section 92A of our shiny new copyright law. Those who did take part, however, will be celebrating now, as yesterday the government announced it was scrapping the ballyhooed provision.

As an activist, you might think I'd be pleased with the victory. But as a rational observer, I think it's the wrong victory. This was a battle that should never have been fought; indeed, it wasn't really a battle at all, since the government itself was practically sponsoring the opposition to the measure. Now that it's been "won", I don't know what the political fallout will be.

For those who haven't been following: according to its opponents, the provision in question "calls for internet disconnection based on accusations of copyright infringement without a trial and without any evidence held up to court scrutiny". "Three strikes", it was called. "Guilt on accusation", it was called. The campaign against it went viral. It's been all around the 'net, attracting support and celebrity endorsements from random publicity whores such as Stephen Fry.

In fact, the law didn't say any of this. What the law said, for those of us who took the time to read it, was:

1. An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.
2. In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

Not a word about "three strikes". Not a word about how "guilt" should be determined. If an ISP wanted to set up a full tribunal system and bill accusers for the cost of investigating false complaints, there's nothing to say they can't. They just couldn't be bothered.

And now the government - which had no investment in the law anyway, since it was its predecessor that passed it - has decided to "give in". (Big surprise there, since the prime minister had already gone on record as calling the law "draconian".) A popular move, which has earned it some good publicity.

But what will it cost us?

Now we, the unwashed, copyright-infringing, freetarded masses have won a victory against Big Business. We've thumbed our little Kiwi nose at Hollywood and shown them that we're not just another state to be pushed around at whim. And now the content industry is going to be back with its counter-proposal. Its compromise. To be embedded, perhaps, in the "Anti-Counterfeiting Trade Agreement", which is being drawn up in secret (from us, the public), but with full input from the Big Content industry.

What price now, our chance to negotiate proper restrictions for "digital rights management" measures? To say nothing of more far-reaching reforms, such as removing "copying" from the list of restricted acts entirely. We've shot our bolt, we've won our "victory", and never has it felt more hollow.

So much to rant about

... so little time. Perhaps I should just stop looking at news entirely.

Two judges in Pennsylvania admit to taking bribes to increase the sentences imposed on young offenders. The bribes came from the penal contractors who get paid to keep the kids locked up. To me this suggests that it may be unwise to encourage private industry to make profits from crime. That's a lesson we might try applying to the insurance and security industries.

Amazon bans sales of a ghastly Japanese videogame in which you get to play a sexual predator who kidnaps, tortures and rapes women. Of course Amazon is perfectly right to censor anything it doesn't like, so long as it doesn't try to hide what it's doing. Well done Amazon. The Git Award here goes to British Labour MP Keith Vaz, who pontificated: "It is intolerable that anyone would purchase a game that simulates the criminal offence of rape... I do not see how this can be allowed." (Note the passive voice there: "... can be allowed." Translation: "I don't want to censor anything, perish the thought, but what can I do, I'm driven by an irresistible compulsion...".)

Octuplets' mother's publicists quit after receiving death threats. I don't even know who to be maddest at in this story: the publicist for general spinelessness, the malicious fuckwits who've been sending death threats, the police who show no interest in tracking down said fuckwits and kicking them hard and repeatedly in the stomach, or the mother who hired a freakin' publicist because she had eight babies.

Seriously: where exactly did we go wrong?

Kindling controversy

The Authors Guild is alerting its members about the new version of Amazon's Kindle e-book reader, because "Kindle 2" has - get this - the ability to read a book aloud. Apparently it's not yet as good as a human reader, but (says the AG) it's a great step forward from text-to-speech mechanisms of only a few years ago.

I came to this story all ready to lambast the Authors Guild (shouldn't there be an apostrophe in there somewhere?) for trying to cripple technology in the name of soaking more money for its members. But having read its release, I'm almost sympathetic.

Almost.

The guild believes, or professes to believe, that reading a book aloud, privately, is not and should not be covered by copyright. At the same time, it doesn't want anything to damage the sale of audio books. Its present - "concern", I guess is the nice neutral word - is that Amazon will undermine the market for audio books by marketing e-books as a form that makes the audio book obsolete.

And much as I'd like to say "Suck it up! Products do become obsolete, live with it!" - I'm disarmed by the fact that the Guild is focusing its fears not on consumers, but on Amazon. If the new-generation e-book is going to double as an audio book, it suggests, perhaps authors should be asking for a better cut.

I think I can follow the logic here. How many people buy both a print and an audio version of the same book? I don't know, but my guess would be that most customers buy one or the other, not both. Now, if a single product can do duty for both sets of customers, then we've substantially lowered the costs of production and distribution, with no more than a slight, if any, decrease in the total market.

Of course that means more profit for publishers, and of course the Authors Guild wants its members to get their fair cut of that action.

I can sympathise with the wish to keep a tight rein on Amazon. I applaud the Authors Guild for keeping sight of the fact that the publisher, not the consumer, is the author's natural enemy. I can see why it'd be loth to pass up any opportunity to try to bump up its members' earnings.

But I think its present stance is more likely to have the opposite effect.

If authors stick up for their rights to a better cut if books are to be released on "Kindle 2", that can only lead to one thing: a proprietary, locked-out format that's carefully engineered to be incompatible with Kindle 2, so that publishers can justify not paying the higher rates to any but the best-selling authors. That restriction will fragment the market and frustrate consumers, even further than we already are. And it'll increase the incentives to pirate the work.

It can't be said too often: "the more sense that copyright makes to the consumers of copyright material - or, to put it in economic terms, the greater its economic value or utility to consumers - the more users value copyright material and respect the rights of copyright owners." Not my words - those of Apple, which knows a thing or two about digital publishing.

Authors have never tried to stop people from reading books aloud to one another. Even publishers have not, yet, tried to describe that as "theft". They would be very unwise to start now, merely because the reader may be a machine rather than a person.

House buying: third attempt

In sensible countries (read: home), when you want to make an offer for a house, you phone up the agent and tell them, and they phone the vendor and tell them, and the vendor laughs and suggests another figure, the agent calls you back, and nothing gets put in writing until you've agreed on the price.

In New Zealand, nothing will do but you must make the offer in writhing[1] and the vendor countersigns it. This complicates things not a little, because typically you and the vendor are not in the same room.

[1] genuine typo which seemed oddly appropriate.

More, the writhing must be on an appropriate legal form, which is a closely-typed ten-page document with your signatures on page 6 and various other details filled in elsewhere and initialled right up the wazoo. I understand lawyers are comfortable with documents like this, and estate agents love them because of the sense of mystery and intimidation they create, but to most of us they're just annoying.

So it was that we had two visits from an estate agent last night. Not my first choice of house guests. But the cafes were closed, and one must be civil.

It was with a mixture of embarrassment and satisfaction that I noted the spilled takeaway on the floor of the lift as I escorted her up. I don't think it had been eaten before spilling, but it was hard to be sure.

She sat in the least comfortable chair and went, in tedious detail, through the standard contract terms that "the vendors" wanted to change. Personally I don't believe the vendors gave a damn' about these things (mostly, whether five working days was a reasonable time to get a builder's report, or whether we should be allowed seven working days as I'd originally suggested), but she needed something uncontroversial to talk about before getting down to brass tacks. (Negotiating 101: make sure your wedge has a thin end.)

Then she showed us the vendor's counter-offer: $475,000, a piffling $7000 below the original asking price. (Which, the agent assured us, was an extremely reasonable price. Never had a vendor been so earnestly pressed to keep their expectations reasonable, never was a house better priced to sell. She knows some agents like to pad their prices upwards, but she could not countenance such a practice. Incidentally, had she mentioned that the market has almost completely recovered?)

I sat and thought for a long time. Then I decided: time to see if they're serious about selling. In one stroke, I increased our offer from $430k to $450k.

"What's your limit?", asked the agent. Hoping, presumably, I'd forget that her job is to squeeze as much out of me as she can. "Because if I keep running back and forth with these small changes..."

"That's not a small change," I interrupted her.

She backpedalled hastily, muttering some non-apology about the multi-million dollar deals she's apparently accustomed to making, and went off to plague sundry other people, including our vendor.

Two hours later she was back. I brought her up in the same lift, she sat in the same chair and showed us the new offer.

I couldn't find it at first. There was so much writing, crossing out and initialling on the front page of the form that the number was not easy to see. Eventually I tracked it down: $470,000.

"Forget it," I said. "I made a big concession, I was looking for a reasonable movement back from them; if they're not prepared to make that, then we're just not going to reach an agreement."

She remonstrated a little for form's sake, but I think she could see she was wasting her breath. I wondered if she'd tried to talk the vendors into making a bigger concession; if so, presumably she'll be in a better position to pressure them next time. Pretty soon we thanked each other politely for our time, and she saw herself out.

I just hope she got the same lift again on the way down.

Intellectual vandalism

As a student, I read some book -- I think Michael Scott Rohan's original Winter of the World trilogy -- in which the hero, a blacksmith, had his legs deliberately broken to keep him from leaving town.

I thought then that this was the essence of barbarism. To deliberately maim someone -- to intentionally make an able body less able -- and to do it, for no better reason than that you didn't want the burden of having to treat them decently. Surely, I thought, this is what the Law is really for: to protect us from such arbitrary and selfish uses of power.

In 1989, the 80486 computer chip came onto the market -- the fourth in the series that began with the 8086, and direct ancestor of the various types of Pentiums that probably power the computer you're reading this on. It was shockingly expensive. But among its advances over its predecessor, the 80386, it had a floating-point co-processor built into the chip itself.

I'd always wanted one of those. It meant you could play games that involved drawing detailed graphics on the screen in real time. Things like flight simulators. I waited, eagerly, for the price to come down to the point where I could afford one.

In 1991, the chip manufacturer, Intel, produced the cheap version: the 80486SX. As everyone knew in those days, the "-SX" suffix meant "cut-down"; in this case, it meant "without the co-processor". To me that seemed the epitome of pointlessness. But by then I was a technical journalist, and it was my business to read lots of reports and writings about developments just like this. And I learned something that shocked me deeply:

The 486SX did have the co-processor built onto the chip -- it was exactly the same chip, built on the same lines in the same factory as the full version -- but the co-processor was artificially disabled. Like Rohan's blacksmith hero, the chip had been deliberately crippled to make it less useful.

In my economics lessons, I'd learned that the purpose of work is to add value to something. Everyone who adds value makes the world a slightly better, or at least richer, place; somebody, somewhere, gains some utility that they would not otherwise have had.

So what should I think of people who work, on purpose, to make a product less useful?

To me that seemed, and still seems, no better than vandalism, or at best theft. I can understand the motivations -- but then I can understand the motives of vandals and thieves, too, and it doesn't mean I accept them as legitimate.

And today the same argument is going on with a much higher profile, although no-one seems to recognise it.

It's called "digital rights management". What it means, in a nutshell, is that publishers add bits of code to their products that prevent them from being used in ways they otherwise could.

Now, the amount of virtual ink that's been spilt in debating the rights and wrongs of DRM in general is, approximately, enough to fill the Atlantic. You don't have to look far to find rants or measured opinions on either side of the subject, including some by yours truly. (I have mostly taken the position that publishers have no moral or legal right to do most of the things they do. The vast majority of their measures are used to enforce "rights" that the law was never meant to grant them in the first place.)

But that's not my real objection. That's just the legalistic formulation of the underlying problem, which is a moral one. It is intrinsically wrong, I believe, to devote time and effort to make your product less useful than it would be if you didn't. That means you're working to make the world a poorer place. And that means you're a vandal, and you belong in jail.

But our economic system is so perverse that it rewards such behaviour. Even worse: our laws are being perverted to not merely protect, but actively support, it. To my mind, that's enough to discredit the entire consumerist economic system; what we are fighting over now is whether the legal and political systems that go with it can be redeemed. They're meant to protect us, the consumers, from this kind of abuse. If they won't do that, what are they good for?

Sanity test

If you've been awake during the past month, you may possibly have heard that the band Coldplay is being sued for infringing the copyright of guitarist Joe Satriani. Seems that Coldplay's hugely popular hit "Viva la Vida" uses the same melody and chord progression as Satriani's (hitherto) little-known "If I Could Fly".

Coldplay denies it. Not strenuously, not hotly, but quietly and firmly and with surprising dignity for a rock band. (Probably time to declare my interest here: I personally like the Coldplay song.)

YouTube is crawling with commentaries, combinations and comparisons of the two songs. To me, the best of these is this offering, which digs up no less than five previous versions of the same melody, the earliest dating right back to the 1960s. It's been said that there are only seven basic notes in music, and moreover there are fairly strong rules about how you can combine them in any given genre. So who, exactly, is going to say whose contribution deserves to be considered most important?

To me, this case is ever so slightly terrifying.

In Coldplay's favour: their song is substantially original, it's been a colossal popular (and critical) hit, they've got plenty of money to fight the case, and there is no evidence that Coldplay had ever heard Satriani's recording. In Satriani's favour: the melodies, rhythms and chord progressions are more than averagely similar. And -- and this is the point that I think has been largely overlooked -- he's American. There are lots of people commenting on those YouTube videos who think that the case is a slam-dunk for Satriani.

If Satriani wins, that will imply a reversal of the burden of proof in copyright infringement cases: the onus will be on songwriters to prove that they haven't "copied" another's work. I would see such an outcome as vindication of my "imaginary frontier" theory: that the American legal establishment is engaged in the biggest land grab in history, claiming absolute sovereignty over the entire realm of "intellectual property".

So what should happen here?

Well, for starters, copyright needs to loosen up. A lot.

Until very recently, if someone copied a basic theme, made their own changes and sold the work as their own, no-one turned a hair. So long as the changes were sufficient to count as an "original" contribution, the attitude was: "good on them, for enriching all our lives". The movie Clueless fails to credit Jane Austen for the original story, but nobody accused it of plagiarism. And that attitude has, so far, failed to lead to the death of artistic creativity. On the contrary, it encourages it: there's nothing more stifling to creativity than constantly policing your own thoughts against the possiblity of "stealing" someone else's idea.

But the bar for plagiarism is slowly creeping downward. And that, it seems to me, really will lead to the end of creativity.

Make the most of art while we have it. If Van Gogh were working in today's legal climate, he'd have been sued by Cezanne for copying his style.