The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Month: July, 2009

Joel Fights Back, but it doesn’t sound good

Joel Tenenbaum, of http://www.joelfightsback.com fame, has just received the verdict in his ground breaking music file sharing trial.  I’m currently following this through twitter on @joelfightsback and #jfb and as far as I can tell he’s been found to have willfully infringed copyright on thirty songs.  Given his defence included things like an attempt at the fair use defence and the case law is both suspect and against him that’s not entirely unexpected but still very disappointed.  This case is less significant than the Pirate Bay trial but marked an important step in dealing with file sharing.  It appears the punishing fine stage is still with us.

Here’s the nasty thing.  He’s to pay $675,000 thank you very much.  Ouch.  It’s a fraction of the $4.5m the pursuers wanted from him but that’s still a thick wad of change.

The nice thing about this decision is that it is the very lowest the jury could have possibly given Joel, he did the thing he’s been accused of and so he’s earned a fine.  The fine the jury wants him to get, however, is no where near what the record companies want him to pay.  The difference in opinion is telling.  (Or hey, it might not, US jurisprudence is well outside my degree course. I say it as I read it).  I think it goes as low as $750/song for unwillful copyright violation, rather than willful copyright, which is worse and is what the jury decided in this case.

Additionally, major kudos to the jury in following the rule of law in this case, despite the media hype (which I ‘m sure they didn’t see) surrounding it.

Although not a scratch on Mutu’s eyewatering FIFA penalty, eh?

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Sky news explores the IT repair trade

IT repair

It is not uncommon for people who repair computers to do things which are relatively harmless but still pretty unethical – stealing your music, for example, is quite commonly done. While that is not particularly horrible it does sort of show the attitude in some repair shops to the customer’s data.

I take the view that computer repair is in no way a more privileged job than washing machine or TV repair people. Perhaps, given the much greater range of wrong doing with computer repair it is actually a less privileged job. You can do just about anything to a washing machine that you’re repairing but if you wander through a customer’s files you end up on thin ice.

The industry has the slightly uncomfortable set of affairs where the job is little understood but relatively easy. A lot of the job of IT repairs is taking prefabricated parts out of clearly marked slots and replacing them with nearly identical replacements. The design and manufacture of those parts are extremely difficult, make no mistake, but the installation gets easier nearly every year. That does not mean that it make any more sense to someone when their computer stops working but it means that nearly anyone could be an IT repair guy and there’s absolutely no vetting.

Computers are unique for their ability to take a really significant chunk of your innermost life and make it both quickly accessible and very copyable. Without the Sky News investigation the worst I thought would happen is that my MP3s and videos would get copied into some monolithic tower of hard drives in the heart of the secretive repair lab. It turns out that rather worse things could happen.

The investigation

Sky News apparently asked PC Pro (a Dennis publishing computing enthusiast magazine) readers for horror stories of “rogue traders” and then they set up a honeypot laptop – they loaded it with folders marked “Private” and filled with bank details, pictures etc. They then filled it to the gunwales with spyware that would record what the technicians did, what they clicked or typed, what files they accessed and would take periodic pictures with the integrated webcam.

To create a simple, painless and easily remedied error they loosened a memory chip on the motherboard so that it would incompletely boot and give an error message. To fix this you would open the bottom panel, take the stick of RAM out, blow on the connectors (it really works!) and put it back in. At that point the computer would work again.

The problem, as I hope I have shown, was not rocket science and for people doing this day in, day out it should not have posed a great challenge.

Sky News discovered that the shops investigated were not keeping up the professional end of the deal. One of the shops presumably tried to turn it on, read the messages, fixed the problem and handed the computer back to the stunned Sky News researchers within minutes – that is to their great credit. While they didn’t charge this is up to the people involved. I would see no problem with charging for the work done, it’s not a lot of work but it’s still someone doing their job.

The other shops were much less ethical – they all managed to fix the fault quickly enough, but generally diagnosed a motherboard fault and charged for a replacement part. This is like charging a car owner for a new engine if you’ve tightened some screws. They also returned to the fully functional computer to see what they could get out of the hard drive – the folder marked “Private” becoming a very tempting target. The folder contained photos of the researcher wearing a bikini – which Sky (and Dennis) faithfully reproduced in the final reports – which was faithfully copied to a collection of similar photos on a technician’s USB drive.

The most worrying thing, and the most serious offence, was the repairman who then used some (fabricated) bank details on the laptop to attempt to gain access to a Net West bank account. Since the details were false the man was unable to access the account but that did not stop him trying for several minutes. God alone knows what he would have done if he had gained access but I think we really have to consider that attempted fraud.

Computers may seem like magic, and for a large part that’s what they are, but the IT repair industry should not get any extra leniency when it goes too far than any other repair industry. Now – where are the police investigations into this misconduct?

This sort of wrong doing hurts me more as a (fingers crossed) future professional than as a computer enthusiast. I’ve never used a computer repair shop, I’ve never had to. My parents sent our first Mac off to Applecare (and that held my games and my sister’s university thesis, not personal photos and bank details) and I’ve always just been able to muddle through since. However, not everyone has spent so much of their childhood spurning sunlight and perhaps can’t do their own repairs.

One big reason for why you might send your computer off to be repaired, even if you can fix it yourself, is that you’re too busy. High flying corporate lawyers working 70 hour weeks can hardly come home, get out their mini screwdrivers and fix their laptop after a hard day at work. They might desperately need their computer for work. In that case paying someone to repair it for you would be extremely tempting. If you are a high flying corporate lawyer your laptop might well contain suitably high flying private data and you hardly want your hard drive cloned (copied in full) in a repair shop.

The best ways to get around this are to keep personal data off your computer and on an external drive but this is a Herculean task since personal data is nearly everything you do on a computer. There is always the option of taking the hard drive out – if you can – but the hard drive can often be the fault that needs fixed. You may want to not let it out of your sight, you can get call out tech support that comes to you but this is expensive. The corporate lawyer in my example might be able to get it fixed by inhouse tech support at his firm, but that’s a long shot for most of us.

Beyond that encryption is quite sensible, but this needs to beat a bored, curious IT professional and that’s quite a substantial test. It may also work out that you need to let people look at your computer logged in and working. Encryption does not equal logon password (which is no protection at all), although my disc encryption (on Linux) is tied into that password prompt.

I think the best protection is taking the same measures as Sky News, recording what files are accessed, what’s clicked on, what’s typed etc. I don’t think you can take photos of them without their consent no matter what sort of crime they’re committing – the police actually gave me a warning for this over the summer. Sky News gets away with it because it’s a huge company and it gets to use the “public interest” journalism defence but I don’t know if individuals would, especially since most technicians won’t try to do something blatantly illegal like hacking your bank account. This stinks of closing the door after the horse has bolted but at least this means you can show what happened and that’s quite a useful measure in your defence. After all, you’ve not left your laptop on the train, you’ve brought it to a shop to be fixed.

Law Lords move to Supreme Court

“We do not want to lose you, but we think you ought to go.”
– Lord Wallace of Saltaire

The highest appeal court in the land has, for 133 years, been the Appellate Committee of the House of Lords.  This is coming to a close, with the Law Lords no longer staying in the House and instead moving to Middlesex Guildhall as Justices of the Supreme Court.

I’ve watched a lot of the lords reform with some disapproval (I don’t think we need an elected house of lords, I think either we need an unelected, or at least differently constituted, body to stand in the face of public hysteria and take an objective view or we don’t need an very expensive upper house at all) and I’ve not really understood what difference a supreme court would make to our jurisprudence.  I think this is a gap in my knowledge I should quickly rectify if I do manage to end up on the bar, it might be good to know.  I believe it helps separation of the judiciary, but given how the law lords generally kept themselves out of legislative roles I don’t know if anything has actually changed.

It is oddly reassuring to know that the first apparent mention of a Supreme Court came, not from Tony Blair, but from an 1869 Royal Commission.  This is not because the Royal Commission is infallible, it’s just that New Labour has been wrong before.

The 10 “going away” speeches from the 21 June can be found here: http://www.theyworkforyou.com/lords/?id=2009-07-21a.1507.0

Baroness Royall’s speech is a particularly enjoyable read, I point out the anecdote about the Duke of Buccleuch which any Scot would appreciate, while Lord Strathclyde’s is a much needed caution.  The whole debate is worth having a look at, with much of the continuum of opinions on constitutional reform quite succinctly included.  Not to mention a good bit of political point scoring, some of it from centuries ago.

This also raises a slightly uncomfortable point – were the Law Lords moved out to make space for Alan Sugar?

Obsolete technology lives on

I spotted an article from the 17 July 2009 on the Times website on places where you might not expect obsolete technology to have held on.

For example, says the article, the NYPD spent $432,900 on typewriter maintenance last year (and nearly $1 million the year before).  They use typewriters to fill out forms – for seized property mainly – and for backup in case a catastrophe takes the digital side of the force off-line.

I completely agree with this idea, it’s a very good one.  I’ve got into the habit of often filling out forms on my typewriter because it’s capable of black capitals and it’s neater than I could previously manage.  I also typewrite the addresses on my postal envelopes.

Other technologies in the list include tapes (audio cassettes) which are used in prisons in the US because CDs are often banned because they make such effective weapons if shattered.  The story reports that cassette sales to inmates is one of the few growth areas in a physical media music industry that is in decline.

Another example is the telegram – something I admire as an event more than as a means of communication, just imagine if the Queen sent you a text on your 100th birthday?  This one is very interesting from a legal perspective because in the USA if you send a telegram with some juicy piece of intellectual property to anyone, even yourself, you can use the date and time on the telegram as evidence in a copyright trial.  This is a good stop gap measure while you are waiting for any formal copyright processes to be completed.  It is also a useful means of extremely quick recorded message delivery, useful for contractual purposes.

One final point for me microfiche.  I think microfiche is one of those products that are fun until you have to use it. I quite like, now and again, reading the newspapers from historical events and these are now generally only available on microfiche simply because of the size savings.  That sort of interesting and different way to spend an afternoon in the library would very quickly lose its charm if I needed the information, and particularly if I needed it quickly.  Keyword search may not be perfect but you’d miss it if it was gone.

I think that technology is only obsolete when it is no longer useful to you.  Typewriters, audio cassettes and microfiche are all perfectly effective at what they do, they were replaced because the alternatives had benefits but that doesn’t mean they stopped working at the same time.

http://timesonline.typepad.com/comment/2009/07/10-places-where-old-technology-lives-on.html

Ofcom gives verdict on the Jeni Barnet radio show

I’m back from a summer holiday and a bit of a relax, so this post has been planned for a while but never quite typed up.

I’ve not mentioned the LBC MMR radio debate on the blog for a while but I received a letter from Ofcom while I was away on holiday a little while ago. The letter was a short message explaining the results of my complaint and attached was an extract from Ofcom’s periodical publication which contains the full judgement. The basic summary is that the complaint hasn’t been upheld and the broadcaster did not breach Ofcom’s code. However, in its other comments (not binding and not particularly potent) they do make some criticisms of the presenter’s conduct and that was really what the whole complaint was about, so in that way I feel the complaint was not wasted.

It is also quite a useful eye opener – it’s very easy to take our broadcasters for granted and that is pretty scary given the amount of power that the media exercise in the modern world. On a more personal level, the most appealing legal job in my experience is that of the communications lawyer. It was explained to me many years ago that these were the people who got to read the jokes that you couldn’t put on TV and I still think that’s a perfectly good reason. In that case it might be quite a good move to get familiar with the regulator’s way of thinking.

One of the most interesting features of the decision for me is basically that it didn’t breach the Code because experts – doctors and nurses – phoned in. That strikes me as counter intuitive and a bit unsatisfying but worth noting, especially because Ofcom later says that the presenter appeared to resort to her anecdotal experience and was perhaps improperly briefed. I was also interested to see that there is a different level of the prominence test for local broadcasters, since LBC is local to London, than for national ones. That, again, is surprising from the perspective that, when you get down to it, London is only a city. It shows that there is a real variety in the obligations that broadcasters need to strive for – something that I certainly didn’t know before this.

Ofcom publishes its decisions in its “Broadcast Bulletin” and these are available both from Ofcom and online, for example the issue which contains the MMR debate decision is available here: http://www.ofcom.org.uk/tv/obb/prog_cb/obb1ev