The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Tag: Internet

What has Glenn Beck done?

He lodged a complaint with the WIPO under the UDRP against a domain name owner he said was violating his trademark (see what I did there). An American individual registered a domain name which linked his name with various criminal acts — however the site didn’t accuse him of doing the acts, they just wanted to know why he won’t come out and publicly deny the serious allegations, a satirical reference to Beck’s own interviewing style — Beck promptly took legal advice and this led to the WIPO hearing. The extra-legal Uniform Domain-Name Dispute-Resolution Policy is not perfect, it’s been widely criticised from the very outset for issues of accountability and bias not least in that the initial source of the policy is the World Intellectual Property Organisation and asking the WIPO how you should deal with copyright disputes between trademark owners and domain name owners is a little bit like asking the KKK how you should deal with disputes between white people and black people.

On the other hand, this dispute is quite a reassuring note that in the case of fairly clear situations the process does work. The UDRP deals with trademark violation and this is not a trademark violation so the action can’t succeed and that’s what’s been decided, although on a different ground because the domain name was held to be similar enough to be confusing.

It’s the specific details of the dispute which are quite entertaining. The reason behind the registrant registering the specific domain name he did is because it’s an Internet meme. It’s not the registrant making false allegations of felonies by Glenn Beck, he’s just copying a joke that’s on FARK. The third pillar of the test requires the trademark owner to prove bad faith so this is a huge deal. The thing is that Internet memes are elements from a (primarily American) subculture and it’s impossible to assume that any particular WIPO panel sitting in Geneva will know a lolcat from a rickroll. This means that the respondent’s submission needed to include a potted history of the Internet meme in between naturally quite dry analysis of relevant precedent and procedural (as opposed to legal) argument. It’s inordinately awesome to read about Leroy Jenkins on letter headed paper.

Perhaps most hearteningly of all is the statement released by the registrant after the decision was made – in the statement he gives Beck control of the domain (despite the panel ruling in the registrant’s favour) and says that the only reason he even disputed the point was to defend the American Constitution’s protections of free speech from Beck. It’s a surprisingly powerful and elegant declaration of patriotism for a dispute that came out of an Internet in-joke.

Arstechnica have a good, factually oriented review of the dispute that’s worth a read.

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BT / Sky throttling

ASA Adjudication British Sky Boardcasting Ltd t/a Sky – 16 September 2009

Sky ran an advert claiming that their customers were not going to face a reduction in speeds at peak times, they said that BT would. Naturally BT complained about this. That is hardly unexpected, they’re allowed to complain to the regulator if they disagree with an advert. The ASA then has to take a look at the advert and decide if it actually goes against any rules.

The ASA have uphead their complaint and Sky are not to run their advert again – despite BT admitting that they throttle users’ connections at peak times. How is this possible?

BT use a Fair Use policy — this is the thing that makes the unlimited internet packages economic for the ISP. If you use the service heavily they will slow you down, if you don’t draw too heavily on the service it comes at you quickly. “Effectively unlimited” is the language used.

Fair use policies are marketed as a fairness issue — they’re to stop certain users hogging it for everyone. The complaint to this is that they’re used to hide the fact that the ISP is trying to spread too limited resources between too many users. Heavy users of P2P software are likely to run into fair use policies at some point but other users may also, depending on the strength of their policy. For example, and this is the sort of thing that Sky was talking about, users on Option 1 have their video streaming throttled at peak time. That’s iplayer,

This is an example of fine distinction – the reason that the advert wasn’t allowed was because that it suggests that every BT user would be throttled at peak times (quite an image) rather than the fact that it says that BT throttles users at all. I think the best response to this would be along the lines of Ryanair’s “Sooo sorry” adverts in which, having been ordered to stop saying they were 5x cheaper than a competitor and to apologise, conceded that they were only roughly 4.5x times cheaper and said sorry. Sometimes the letter of the law is the only way to go.

An open letter to the Internet in defence of, well, letters

Dear Internet,
I’ve noticed you never get letters anymore, it’s a shame. The only thing that comes through the letter box now is generally a bill. The electronic version of the letter, the email, is also in grim condition. It is either a spam infested wasteland or a firmly stodgy business tool. The current champion of email – Research In Motion has made millions from business email but has struggled to make a similar dent into the consumer market.

Young people, it appears, have decided that email is a big business shill and do not use it for social purposes preferring to use instant messenging and social networking sites. I find that sad as a young person who actively likes email. I think email is the letter of the internet – you write it all in advance, address it and send it off, to get a whole message back.

Letter writing is nice, email is a little less formal – there’s no chance to open an envelope and it can be lost among adverts for various enhancements. Since the email is so much like the much appreciated letter, except less expensive and quicker, it is sad to see that it has been relegated to the position of “work tool” by the young people of today.

Although email is undeniably a fantastic tool for work, as is the traditional letter, and many technologies rejoice to be adopted as one because it will be written into compliance specifications and generally hand around for future decades it does mean that Joe Teenager will not be so keen to go for it. That means that when Joe Teenager becomes Joe Office Worker email genuinely will only be a work tool to him.

RIM has made excellent money from showing how useful not much more than always having access to your email can be but remains very much a corporate business – it only recently put cameras on its phones because of corporate policies against cameras. The Blackberry, however, is a household name – they are quality devices and Barack Obama loves them which are just two substantial points in their favour.

The mobile phone, in my eyes, is not the easel for the next great letter, which should rather be penned in an attic flat, next to a window while it’s raining to really set the scene but with all teenagers (seemingly anyway) possessing phones with email capability this could be the scene of the resurgence of the letter. Next time Joe Teenager (or Joe Twenty Something, or Joe Thirty Something or…) is on a bus for a few minutes with nothing to do he should sit down and start to write a letter, using his phone and sending it off by email. He should occasionally resist the temptation to send a quick text now and again because you can say much more in a letter.

Yours,
A blogger

EFF releases a new legal guide

The Electronic Frontier Foundation, the people behind the Blogger’s Guide to blogging in extreme situations has produced an update to their legal piece to bloggers.They make it very clear that the article does not constitute binding legal advice and this is doubly so for British readers– the EFF is an American organisation. While the field of internet media law is still relatively new and courts are reasonably happy to be directed to any useful authorities they will not be so happy to find the words “First Amendment” in the headnote and will have nearly no difficulty in resorting to regular media law which is a much more developed and older field.That tends not to be applied exactly between countries.

“The difference between you and the reporter at your local newspaper is that in many cases, you may not have the benefit of training or resources to help you determine whether what you’re doing is legal”

This is most recently seen in the case of Dr Ben Goldacre who was not making a ballsy protest when he posted an extract from a certain London radio show but simply couldn’t comprehend that it would actually step on anyone’s toes – it’s been beamed out over the airways hasn’t it? This is neatly contrasted by the media lawyers retained by LBC/Global Radio who knew exactly what rights they had and sent him a letter to that very effect.

The EFF, and I agree with them, make it completely clear that this does not mean that you should stop using your ability to present your own view on things. The concept of this being a legal right is not so nearly ingrained in the British psyche (beyond the vague complaint of “it’s a free country” that crops up now and again). Your right to post on a blog is limited with a number of conditions – defamation, copyright, indecency, even blasphemy and other issues. It’s not a free right by any stretch. While I know better than most about the limits I can go to it’s not something that the average, non law student member of the public can do at the same time as their regular job.

Why would you need to have studied the law in an area to use your computer? That’s why we have professional lawyers. People can drive only by knowing the rules and learning some skills and don’t need to be practicing lawyers as long as they stay within the rules, and even if they do stray over the lines it can still be settled simply (in the case of a speeding or parking ticket, say) using a routine public procedure.

There are many differences between getting a parking ticket and getting a copyright violation, one involves a public authority and the other involves a private, generally commercial, entity. A commercial entity suddenly changes everything – there is a lot more money involved and there’s huge interests involved in keeping the content protected. I whole heartedly believe that everyone has a right to protect their property and that’s something that can’t be denied simply because someone has a lot of it and therefore, you need to be careful to remain on the side of fair dealing rather than copyright theft – it’s not something that the average blogger generally falls into. Ben Goldacre falls into the case of “copyright violation plus” and that’s because he also has a huge readership and spoke out extremely strongly on the subject and was highly critical of the presenter in question.

Defamation

Assuming that a blogger has been careful to avoid breaching anyone’s copyright unduly with his posts it is still possible that the blogger will land himself in hot water – perhaps for defamation. With some hesitation I say that the usual blogger will find it extremely difficult to actually falsely injure the reputation of a public figure unless they do utterly improbably effective rumour mongering and somehow find themselves with a vast readership. It’s extremely unlikely that anyone who will bother suing you will ever actually be affected by the vast majority of bloggers. However, if you post ludicrous hate messages on a blog be open to the possibility of your blog provider being contacted for content removal requests.

Secret content

The polar opposite of defamation is the unauthorised revelation of confidential material – this can just as validly be either be a leak or whistleblower in a company or a mole in a state’s military force and in either case information which is not for public revelation will be clear and it is possible to stay clear of this by simply using common sense. If you decide to (for reasons of conscience, for example) post this sort of content it is very advisable to retain a lawyer and to use their professional advice.

Obscenity

Blogs can simply break the law in terms of their content – that can be in terms of hate sites on racial or religious grounds, pornographic content (anything involving parties below the age of consent is particularly and obviously illegal) or perhaps obscene in another way. This is a particular concern for anyone who wants to maintain a professional looking blog – it’s very important to make sure that there’s nothing on your blog that you wouldn’t say to a client.

Blasphemy

This is highly unlikely but an interesting example of the rich and varied history that exists just under the surface. Britain is still, in some ways, a religious country and there are laws still on the books which reflect this. The ancient and nearly defunct charge of blasphemy is one of these holdouts which is rolled out every so often as a way of dealing with awkward cases of publishing which offend someone but they lack interest.

The last case I can recall reading of was Whitehouse v Lemon in which a poem about Jesus was declared to be blasphemy in 1977, resurrecting the charge for the first time in 50 years. Legal blasphemy is, broadly speaking, something like defamation, but against a (generally Christian) religious figure as opposed to an interested pursuer. It’s a useful “back-scratcher” in that it provides what is effectively a public policy avenue in cases when the pursuer themselves actually doesn’t have much in the way of a personal reason to be pursuing the case and it’s a way of reaching some fairly specialised legal “itches” when you otherwise couldn’t as an individual. On the downside, it is an uphill struggle just getting this action accepted by a court in the first place (and you have to repeat that in every appeal) and it’s the realm of the hobbyist litigant for all practical purposes these days and those are extremely, vanishingly, rare.

I don’t say all this to discourage people from writing a blog – please understand that people happily live their lives doing what they want and not dealing with the legal implications of their actions except in very vague terms of rules and guidelines and how to keep within it. I do feel that there is a difference between thinking an opinion and publishing it internationally and there’s extra responsibilities tied up in that choice.

8 Common Sense Tips for legal blogging

  1. Don’t use your blog to distribute other people’s content, music, speech or videos, as a general rule. This does not prevent you, on the whole, presenting small chunks of the content as a visual aid in terms of your commentary unless you go over a threshold (about 5%-10% by time generally) in terms of extract and you are a seriously public figure yourself.
  2. The more readers your blog has, the more influential it is and the more careful a blogger needs to be if they stray into negative content about other people – this is a good rule for life, the modern “if you can’t say anything nice (and you’ve got a million readers) don’t say anything” (without proof). This is good reporting practice and I’d like to think that people wouldn’t make unsubstantiated claims about me.
  3. Serious blogs written by personalities have a stronger voice than anonymous comedy ones but comedy is not a defence from an action-
    (compare the readership of icanhascheezburger.com and badscience.net, yet the smaller, more serious site attracted the lawyer’s letter for negative comments in a moment of levity.)
  4. Anonymous blogs are not completely anonymous; if a blogger reveals hugely damaging military secrets on their blog then great efforts will be made to track down that particular blogger and except for the very most carefully maintained anonymity it will merely slow down someone who’s tracking a blogger.
  5. Obscene content varies from place to place – if you exceed the terms of your blog host then it is probably the case that you are sailing close to the edge of acceptability in that country. Other countries differ in terms of what rates as obscene and it is worth checking this issue for any country you are writing from, particularly if you are writing content you wouldn’t immediately show your parents which is always a good rule of thumb.
  6. Wikileaks is a valid place to store content which suffers legal challenge. However it is not an automatic process. In Britain there is a traffic law that says you can’t take animals that you have knocked down yourself because that would encourage people to actively go out and kill them and it’s also a form of benefitting from your own wrong and this same rule applies to Wikileaks, if your blog receives a lawyer’s letter you are not allowed to take it off your site and go out and post it on Wikileaks – that’s not compliance. Some other person downloading it and then posting it to Wikileaks is perfectly ok since you are not responsible for the use your readers put your blog’s media files to. Posting it yourself is simply an aggravation of your copyright charge and will simply encourage your accuser to come after you with a vengeance.
  7. It is clear what secret content is generally – if you are given a grainy, out of focus image of a picture of an unreleased product or anything stamped “top secret” and talking about active military operations then you should be careful about reporting it.It’s a leak and you may face prosecution for it (publishing military secrets is, at its worst, spying). Otherwise, aggregated blog and news content is no longer secret and can be used with impunity. Personal investigation will reveal in moments if you’re involved in something that is held in secret – for example details about your employer.
  8. Blasphemy is very easily avoided in this day and age – avoid comparing homosexuality to Jesus in front of Mary Whitehouse.

I hope this is helpful to bloggers and to remember you don’t need to be a lawyer or a law student to be able to blog legally – it’s important to just act as you would in real life and not to let the apparent anonymity that’s available go to your head. If that’s not possible remember to stick to the truth, make sure your opinions are clearly just that (and not statements dressed up as opinions because that doesn’t count) and just generally be a responsible internet user.

The EFF legal guide for bloggers has been produced by the Electronic Frontier Foundation and can be found here: EFF (California)

5 Backup Strategies for students

Ever since the student was invented centuries ago the worst thing that could happen to him was he could lose his notes and this is just as true if the student is using parchment and quills or solid state drives and the latest ultra portable laptop. He needs a way to keep track of the files he has and a good way to back them up. This used to be a massive undertaking in the days of hand writing notes (and I still look at my overflowing lever arch files and decide that I’m never going to copy them out again) which became only slightly easier when the photocopier was invented. The computer, however, revolutionised copying in a way which can (and has) give a music exec the cold shakes and it’s now so easy to keep multiple copies of every file you use that it’s no one’s fault but your own if you don’t use the same logic on your work as your music collection. The only problem for someone wanting to protect their files is picking which method you want to use*.

The best method

This is your humble author’s best bet for simple file protection while you’re at university:

Wikipedia

[A USB drive ready to be plugged into a computer, source: Wikipedia]

There’s a lot of sense in using these small, inexpensive devices to store your data while you’re studying. They are extremely portable, not only between locations but also between computers. I could plug my USB stick into a university lab computer, hand it to a print shop or plug it into my own laptop and the files on it can be read off with no problems or issues whatsoever. I often copy files that I wanted printed copies of to my USB stick so that I can print them off on the much cheaper bulk laser printers in libraries than on my inkjet at home.

It depends on your requirements, obviously, what you need but generally I would go for a stick with a capacity of a few gigabytes. There’s really no reason not to do this now because costs have dropped so much. Fancier models are nice but speed and security are often overpriced in the eyes of users who just want a plug and play flash drive. I picked my 8GB stick off Amazon.co.uk for about ten pounds. An 8GB stick will be effectively limitless as far as your homework is concerned. I keep a great deal of information on my USB drive, case reports, journal articles, coursework, etc but try to ensure that there is no personal data on the stick, just in case I leave it lying in the library or have it stolen from me and 8GB goes a very long way when you are using it to store text.

I use a [Windows briefcase (remember those?) on my flash drive which will sync with my home computers with a single click. The Briefcase is an ancient feature in Windows since Windows 95 but one which proves very useful to me nearly every day.

For other people simply dragging the folder over will be more than enough to keep a copy of your work but it lacks the synchronization features that using a Briefcase (or another sync program) will give you.

The online method

Online storage is a relatively old phenomenon but one which has only recently taken off. While people have had the opportunity to store their files remotely for many years the tipping point has come when it became easy and fast to do so. While people who still have dial up connections will gladly tell you how slow it is to browse web sites this is nothing compared to the ~3kb/s effort of sending a substantial amount of data the other way.

The most common domestic Internet connection is the Asymmetric Digital Subscriber Line (ADSL) which divides a phone line up into various bands for upstream, downstream and voice. This allows the connection to do all three operations at once. That’s great for being able to answer the phone at the same time as use the internet but the way that the phone line divides up the data frequencies does not divide it equally – it’s asymmetric. Generally people will have hugely quick download speeds and considerably slower upload speeds, maybe as little as 10% of the download speed. This provides a massive barrier to anyone who wants to send a lot of data across their connection because it simply takes a lot of time.  For smaller amounts of data, though, it’s very convenient.

There are many options for online storage:

The handiest application I’ve found for my online storage has to be the Gmail Drive. This shell extension for Windows allows you to mount your googlemail account as a drive in Windows and copy files to, save to it from programs and generally use it as you would any other drive. The only difference is that the files are saved in your Gmail account as attachments in emails which you can access from anywhere you have Internet access. The storage limit is about 8GB and no single file can be more than 10MB but if you only use it to back up your text file homework and notes this is more than enough. You may have to reduce the length and complexity of file names to get it working just right but that’s a rare issue for most users.

You could do this manually by emailing yourself files as attachments which will let you access them from wherever you have Internet access but the drag and drop of Gmail Drive is particularly convenient for me.

A slightly more involved method is simply to use an online storage provider; these can be free but often charge monthly fees for their services and provide gigabytes of easy to access storage which you control through an often very colourful and polished downloadable application. I find these to be too much for my requirements which are served by not much more than an email account but they are a good, easy to use option for people who don’t want to get too involved in the technical background.

The network method

If you have more than one computer in your house, for example I have my work laptop and I have a more powerful desktop computer that I use for games and other entertainment tasks, you can use them to store your data in more than one place and improve the redundancy. I personally use a simple Windows SMB based network to create network shares that I can mount and use as regular drives and that does everything that I need the network to do, backup wise.

Even if you don’t have another computer you can still use a network to back up your data. Most people on broadband connections use a router to connect their computer(s) to the Internet and the router is a device which is naturally good at connecting lots of devices to networks. The standalone option is a NAS device:

One example of a consumer NAS

[One example of a consumer NAS, source: Amazon.co.uk]

Network Attached Storage is a previously only business technology which suddenly became considerably cheaper and suddenly a lot more economical for the home user. These devices are roughly speaking specialized, low cost computers that have enough power to control a hard disc and a network connection and some have features like automatic Bittorrent downloads, which allows the device to run all day and night and not tie up a “real” computer. They come in two main varieties – prebuilt and barebones. Barebones units tend to be a cheaper purchase (but there can be a premium once you factor hard drives into that price too) than complete versions but you have to provide your own hard drives but that gives you flexibility as to your capacity. Prebuilt versions already have drives installed and generally arrive at the user ready to be plugged in the wall and used.

The sneakernet method

Sneakernet [sic] is a term that describes when instead of electronically connecting two computers you save the file you want to share to a disc and physically take it to the other computer. This is useful in situations where you want to save a copy of your work for future reference and want it to be safe from hard drive failure or being stolen from you while you’re out. It is not a bad plan to burn coursework and other essential pieces of your own work to a CD so you can store it at home if the worst should happen. Given the size of coursework files you could get a sizeable portion of your entire written handiwork stored on an old school floppy disc, I certainly remember family members finishing their entire university career with a small stack of floppy discs tucked into their notes. Those discs will still faithfully hold the files that were put on them in years past and that’s all that can possibly be asked of a backup.

No matter what method you use, remember to do it often!

Backups are of no use to you whatsoever if you haven’t got a recent copy of a file that’s suddenly disappeared. If you leave your backups for too long you risk running into a situation where the copy you have is not one which can really help you. I personally keep my USB drive nearly perfectly up to date because I keep the USB drive plugged in a lot of the time and it’s a moment’s work to click “Update All” in My Computer when I’m finished working.

Try to get yourself into a habit of backing your files up regularly when you’re working so you’re not left with outdated copies when disaster strikes.

Hopefully habits picked up in university with stay with you throughout your professional life and in an era where data losses seem to occur on a weekly basis you will be the professional who knows to keep a redundant copy of your client records locked up in a safe place and to use encryption (more on this later) on data that goes out of the office.

*If you’re particularly fervent in your quest for data protection you can bear in mind that the protection that backups give you is redundancy and the only thing that using more than one of these systems can do is improve your security. I personally have copies stored on both my computers as well as on flash drives.