Jaani.net - Law notes, judicial humour, internet law and technology commentary

Kookaburra sits in the old gum treeee, merrily infringing

Jaani — Wed, 03 Feb 2010 16:09:24 -0800

With all the fuss over the iiNet decision today, it might be easy to overlook another interesting copyright judgment that was handed down just a few metres away.

In Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd [2010] FCA 29, the owner of copyright in the children’s song ‘Kookaburra Sits in the Old Gum Tree’ successfully sued the Australian band Men at Work for infringing copyright in the musical work by reproducing the flute riff in its hit single, ‘Down Under’, which has become a kind of unofficial anthem for many Australians. Kind of ironic that the national spirit infringes copyright.

Update:The judgment has been released — more analysis coming soon.

iiNet wins: Roadshow Films Pty Ltd v iiNet Ltd [2010] FCA 24

Jaani — Wed, 03 Feb 2010 14:44:45 -0800

Justice Cowdroy of the Federal Court of Australia has just handed down judgment in Roadshow Films Pty Ltd v iiNet Ltd [2010] FCA 24 (iiNet Case), finding in favour of the respondent. As you’re probably aware, the iiNet Case centres on allegations of copyright infringement in connection with unauthorised downloads of films by iiNet’s subscribers using the BitTorrent protocol. The decision confirms the safe-harbours enjoyed by internet intermediaries that prevent them from having to police internet content and limits their responsibility for users’ conduct. Some huge ramifications for Australian service providers were avoided today. From his Honour’s summary reasons:

“iiNet is not responsible if an iiNet user uses [the BitTorrent] system to bring about copyright infringement … the law recognises no positive obligation on any person to protect the copyright of another”

I’ll post a more detailed analysis of the judgment once I’ve had time to digest it fully. For now, the essential points from his Honour’s reading of the summary (as liveblogged and twittered from Courtroom 18C) seem to be as follows:

primary infringement: there were acts of primary copyright infringement taking place on iiNet’s network, by end users; however, these were not as numerous as the applicants alleged, and only consisted of a single intangible copy being made;
landmark case: Cowdroy J was aware of the significance of the trial, the first of its kind in the world and ‘the first [Australian] trial to be Tweeted’;
actual knowledge: iiNet did have actual knowledge of the primary infringements, but this was insufficient to ground authorisation liability;
no authorisation liability: simply providing a ‘means of access to the Internet’ is not enough to authorise infringement, since iiNet has no effective control over its users’ conduct, could not prevent the acts of infringement, and did not approve of the infringement (it just provided a connection service);
safe harbours: iiNet would have been entitled to rely on the safe harbours notwithstanding that it did not take action in response to the notices of alleged infringement; however, in the event, it did not need to;
applicant’s claim fails: AFACT’s motion was dismissed with costs; and
legitimate use: Cowdroy J expressly acknowledged that BitTorrent can be used for legitimate purposes.

Fittingly, iiNet CEO Mike Malone revealed the outcome on Twitter. Subject to what the full judgment actually says, iiNet (and Telstra, Optus, Internode and others) must collectively be breathing a sigh of relief right now. However, given that Senator Stephen Conroy has previously indicated that some from of regulatory intervention was likely in the event that iiNet prevailed, I wouldn’t rule out new legislation (or a ‘three strikes’ style industry code) in the future.

The case will almost certainly be appealed by the studios — I’ll update this post with the parties’ official comments shortly. Interestingly, iiNet’s shares have been placed in a voluntary trading halt until next Monday.

Update (10.26am): ah, this is why I love the internet. 30 minutes after judgment is handed down, an industrious attendee takes a blurry phonecam picture of the orders — perhaps borrowed from the bar table — and publishes it via Twitter. And here’s a transcription I made from here in Oxford:

[21] In summary, in this proceeding, the key question is: Did iiNet authorise copyright infringement? The Court answers such question in the negative for three reasons: first, because the copyright infringements occurred directly as a result of the use of the BitTorrent system, not the use of the internet, and the respondent did not create and does not control the BitTorrent system; second because the respondent did not have a relevant power to prevent those infringements occurring; and third because the respondent did not sanction, approve or countenance copyright infringement.

[22] I will now make my formal orders. For the reasons provided in the written judgment I make the following orders:

The Amended Application be dismissed.

Subject to Order 3 and 4, the Applicants pay the costs of the Respondent, including costs thrown away as a result of the Applicants’ abandoning the primary infringement claim against the Respondent. …

[23] I publish my reasons.

Cowdroy J
Sydney
4 February 2010

Update (10.44am): the ComCourts Portal just updated the file’s status to ‘Finalised — Dismissed’. Hopefully the judgment will be posted soon.

Update (10.54am): iiNet just posted a press release — rather demure in tone — ‘welcom[ing]’ the decision of the Federal Court, and more or less repeating Cowdroy J’s findings on liability. The reference to the Telecommunications Act is a little interesting; it all looks a little hastily prepared (and, one suspects, hastily reviewed by counsel). Nothing yet from AFACT.

We have never supported or encouraged breaches of the law, including infringement of the Copy Right Act [sic] of [sic] the Telecommunications Act. Today’s judgment is a vindication of that and the allegations against us have been proven to be unfounded …

So it has been business as usual for us and with the case now behind us we look forward to continuing to do what we do best — delivering innovative content and products and great customer service. … In relation to copyright holders, we conclude by again saying we do not and never have supported, encouraged or authorised illegal sharing or downloading of files in breach of the copyright laws.

Finally, we thank all those who have support [sic] us through this process, the iiNet staff, our loyal customers and investors, the internet industry and others and notably our legal team who worked tirelessly to achieve this important result today.

Update (11.42am): the judgment is now online at AustLii. I’ll read it in the morning and post some more specific comments.

A benevolent Court and the hopeless application

Jaani — Mon, 01 Feb 2010 06:11:27 -0800

[24] There are several reasons why this application must fail. One or two of the defects are, or may be, capable of being cured, but we should make it clear that in our view there is no reason for supposing that the papers ever would or ever could be put into a state which would warrant the summoning of a grand jury. There is a wide range of deficiencies. Most of the affidavits fail to state the deponent’s place of residence. … In addition, the affidavits are objectionable by reason of the way in which they put before the Court a hotch-potch of documents and assertions, inadequately identified and sourced. No-one would wish to see an applicant in person suffer as a result of inability to assemble and verify material as a lawyer would, but benevolent indulgence cannot be stretched to the point of accepting what has been put forward in this case. Quite apart from questions of proper form and admissibility, even applicants in person cannot expect a court to wade through material of the present kind in the hope that there may be found “a grain or two of truth among the chaff”. What, for example, are we expected to make of the vicissitudes of Mr Fyffe, said to be currently lodged in Port Phillip prison for threatening to kill, or those which have beset Ms McKinnon in her attempts to defeat her prosecution for a traffic offence? …

[26] We gave the applicants great latitude in arguing their application — more than we should have. They have made it plain that they regard every part of the legal system as infested — that is the kind of word they would use — with Freemasons and that they are convinced that the courts in general and we in particular will never give them the justice to which they are entitled. Many of the expressions were offensive. (“You break the law by the week.” “The courts cannot be trusted. You bend the statute law at the whim of whatever decision you want to make. But God’s law will win.” These are only examples of repeated imputations of bad faith.) The applicants have said to us that, each time their application is dismissed, “We will be back tomorrow.” We realise that nothing we say will deflect them from their course. We have, however, during the argument, tried to convey to them a little about abuse of process.

[27] The application is hopeless and it must be, and is, dismissed.

Secret talks for the Anti-Counterfeiting Trade Agreement continue

Jaani — Fri, 22 Jan 2010 10:10:28 -0800

Some interesting comments from Michael Geist concerning the now-infamous Anti-Counterfeiting Trade Agreement (ACTA), which is being negotiated in secret by representatives of most developed countries. This piece considers the extent to which states party to ACTA would be required to amend their domestic laws:

most [representatives] have sought to dampen fears by implausibly claiming that ACTA will not result in any domestic changes in their own country. With that in mind, we get:

the European Union stating “ACTA will not go further than the current EU regime for enforcement of IPRs”

the USTR maintaining that ACTA will not rewrite US law

Australia’s DFAT confirming they do not expect to see major domestic changes to Australian law as a result of the ACTA

New Zealand stating “ACTA will not change existing standards”

Canadian Industry Minister Tony Clement assuring the House of Commons that ACTA will be subservient to domestic rules

Of course, if all of this is true, skeptics might reasonably ask why ACTA is needed at all. The truth is that ACTA will require changes in many countries that ratify the agreement. The EU Commissioner-designate for the Internal Market, Michel Barnier, recently acknowledged precisely that during hearings in Brussels. Meanwhile, US lobby groups have stated that they view ACTA as a mechanism to pressure Canada into new copyright reforms.

Hmm, fancy that: a document intended not to create any binding obligations, or to effect any changes in domestic law, that is still ratified by hundreds of states? Sounds like just another international instrument! Of course, unlike the universal norms to which other international conventions aspire, ACTA exists to protect highly contested, localised and partisan interests — not exactly an ennobling purpose. It seems far more likely that ACTA will create hard obligations, which — as a matter of international law — signatories will be required to implement within a reasonable period or risk international dispute settlement procedures (or unwanted sanctions from content-exporters or trade blocs).

Meanwhile, Eddan Katz an Gwen Hinze of the EFF have published an excellent paper in the Yale Journal of International Law Online setting out exactly what’s troubling about ACTA and what to do about it:

The ACTA juggernaut continues to roll ahead, despite public indignation about an agreement supposedly about counterfeiting that has turned into a regime for global Internet regulation. The Office of the United States Trade Representative (USTR) has already announced that the next round of Anti-Counterfeiting Trade Agreement (ACTA) negotiations will take place in January — with the aim of concluding the deal “as soon as possible in 2010.”

For the rest of us, with access to only leaks and whispers of what ACTA is about, there are many troubling questions. How can such a radical proposal legally be kept so secret from the millions of Net users and companies whose rights and freedoms stand to be affected? Who decides what becomes the law of the land and by what influence? Where is the public oversight for an agreement that would set the legal rules for the knowledge economy? And what can be done to fix this runaway process? …

… [T]he USTR chose to negotiate ACTA as a sole executive agreement. As a result, ACTA will not require congressional advice and approval, which is integral to the constitution’s delicate balance of executive and legislative powers. As staunch a defender of executive privilege as John Yoo once convincingly argued that the limits of executive power to negotiate foreign agreements on intellectual property matters unchecked would deprive the House of its constitutional function. … Sole executive agreements are not meant to be unaccountable. There are in fact systems in place to stop our executive (and private interests) from having untrammeled power to change the law. We’ve outlined four ways that Congress, or an Administration sincere about transparency, could put their house in order.

Australian government to filter refused classification internet content

Jaani — Sun, 17 Jan 2010 09:41:55 -0800

Incredibly, despite widespread public opposition, reasoned technical and policy arguments, and international condemnation by the Electronic Frontiers Foundation and others, the Australian government looks set to proceed with its misguided plan to censor prohibited internet content. In December, the government released details of how the censorship (euphemism of choice: ‘filtering’) scheme will work. It’s not pretty, but there are a couple of consolations tucked away in this announcement:

The Government will introduce legislative amendments to the Broadcasting Services Act to require all ISPs to block RC-rated material hosted on overseas servers.

This is good news for industry (given that there’s to be a filter at all). Because the scheme will be implemented by way of legislative change, ISPs will probably be able to rely on ‘compliance with law’ clauses in customer contracts to restrict their services, and also save face in comparison to a self-regulated industry scheme. This is also good news for democracy: subjecting the bill to proper parliamentary scrutiny is appropriate for a measure of this magnitude (it would arguably be improper — and would probably breach convention — to enact the measure through delegated legislation), making it more likely that the inefficacy and fundamental problems with this policy will be seen and corrected. Of course, given the ALP’s numbers in the Senate and House of Representatives, this may be of purely symbolic value.

Under the National Classification Scheme and related enforcement legislation it is already illegal to distribute, sell or make available for hire RC-rated films, computer games and publications. … This material is currently subject to take-down notices by the Australian Communications and Media Authority (ACMA) if it is hosted online in Australia. However, ACMA is unable to directly regulate content hosted overseas. [The censorship scheme] is an additional measure to the existing take-down regime for Australia-hosted content. …

This is interesting, but largely unsurprising: ACMA has always lacked the power to deal with foreign-hosted content, which made its takedown powers effectively useless against the types of materials the government is seeking to filter. This statement also suggests that the government intends to maintain the current take-down regime for local content, and to apply the filter only to foreign content — bypassing some potential constitutional issues concerning the implied freedom of communication in respect of political and governmental matters.

“The report into the pilot trial of ISP-level filtering demonstrates that blocking RC-rated material can be done with 100% accuracy and negligible impact on internet speed,” Senator Conroy said.

Well, this is just laughable. Of course a URL-based blacklist can be blocked with 100% accuracy — that’s what a blacklist is. But that tells us nothing about false negatives (RC material that isn’t included on the blacklist) and false positives (non-RC material that is). It is, on its own, an irrelevant statistic — it was the very first condition for the trial to take place. Check out the report for yourself here. Other notable conclusions from the report include:

‘Telstra did not test circumvention, because it considers that filtering can be circumvented by a technically competent user. … Circumvention testing was not conducted by New Zealand authorities when performing their filtering trial.’ (now there’s a diplomatically worded statement! Enex’s testing found that only 8-16.2% of circumvention attempts of the ACMA blacklist could be thwarted);
‘Telstra found its filtering solution was not effective in the case of non-web based protocols such as instant messaging, peer-to-peer or chat rooms. Enex confirms that this is also the case for all filters presented in the pilot’ (in other words, this won’t prevent access to RC material using the very tools that are most commonly used to access it);
‘Telstra reported that heavy traffic sites could overload its trial filtering solution if included in the filtering blacklist.
This is also the case for all filters presented in the pilot.’ (in other words, the blacklist proxy can be deliberately or accidentally bypassed using a DDoS attack or simply by a large number of ordinary users trying to connect to RC content at the same time — paradoxically, meaning that more the popular an illegal piece of content is, the less likely it is to be blocked); and
‘Equipment and customer computer system(s), and the number of subscribers connected to a service, versus the capacity of the upstream connection that the ISP maintains … will all affect performance, and can do so at 40 percent performance degradation over theoretical maximum linerate, or more in some cases. The performance results in the pilot are assessed in the context of these variables.’ (in other words, the performance cost of filtering may be ‘negligible’ for some, but is potentially as high as 40 per cent for disadvantaged users — for example, those with worse equipment or cheaper subscriptions).

But here’s where the report really gets interesting:

All filters participating in additional content filtering in the pilot blocked between 78.80 percent and 84.65 percent of inappropriate material.
All filters participating in additional content filtering in the pilot blocked less than 3.37 percent of innocuous content.

This suggests that the filters aren’t nearly as effective at picking up content that isn’t on a predefined blacklist. The implications are, of course, broader than just ‘inappropriate material’ — in practice, to block most RC material the government would also need to rely on fuzzy detection methods to supplement the URL blacklist, or risk missing all the RC content that is shifted to another server as soon as it becomes blocked. This sort of detection is not at all accurate: around 1 in 5 RC items get through, and there’s a 3.37 per cent false positive rate (which is unacceptably high, and would probably be much, much higher for certain kinds of ‘borderline’ content).

‘Enex considers it unlikely that any filter vendor would achieve 100 percent blocking of the URLs inappropriate for children without significant over-blocking of the innocuous URLs because the content on different commercial lists varies and there is a high rate at which new content is created on the internet. Enex has also noted, through previous testing, that the higher the accuracy the higher the over-blocking.’ (this captures nicely the inherent tension between accuracy (low false negatives) and correctness (low false positives) — it’s basically impossible for the government to achieve both goals using a blacklist system);
‘In terms of over-blocking the results of this trial show that, while an improvement on previous testing levels, this [3.37%] is still considered high.’
‘For one of the pass-through filters in the pilot, the increase in list size did not result in any additional performance impact. For another of these filters, however, noticeable performance impact was identified’
‘in situations where there is a potential for very high traffic sites, such as YouTube, to have pages on the filtering list, this could result in significantly higher traffic rates passing through the filter, even though the specific pages being accessed are not those on the blacklist. This could cause additional load on the filtering infrastructure and subsequent performance bottlenecks’ (in other words, with the blacklist in operation, it could be much slower to access legitimate websites like YouTube or Facebook);
‘To support peaks in traffic, vendors recommend allowing additional network capacity of approximately four times the estimated traffic at the filter.’ (this is both technically and economically unfeasible for most, if not all, Australian ISPs, even with NBN infrastructure)
during performance testing, participant ISPs encountered performance degradations of 44.15%, 35.8%, 36.45% and the high twenties and teens;

Anyway, there are plenty of other problems identified in the report. Go read it for yourself.

A couple of other further points worth noting from the government’s press release:

The RC Content list will be compiled through a public complaints mechanism. …

“The Government will immediately undertake public consultation with the release today of a discussion paper on additional measures to improve the accountability and transparency of processes that lead to RC-rated material being placed on the RC Content list,” Senator Conroy said.

Some of the options raised include the use of block pages and appeal mechanisms, notification to website owners of RC content and the review by an independent expert and report to the Parliament.

The Government will allocate funds to ACMA to enhance the security of the RC Content list and to automate its transmission to ISPs.

While the whole notion is still ridiculous, it’s good to hear that the government is considering ‘crowdsourcing’ style methods of identifying sites for inclusion — a vaguely democratic, but still highly ambiguous process — and is alive to concerns about how the list will be obtained and updated by ISPs. Whatever method is taken, complete transparency to the public and website owners is crucial.

Legislation is expected in the autumn 2010 session of Parliament, with a 12 month implementation period — also good for industry, since we can expect huge teething problems, and a rushed implementation would be even worse for end users.

IIA to educate ISPs on copyright liability after iiNet case

Jaani — Tue, 15 Dec 2009 08:54:53 -0800

The Australian Internet Industry Association (IIA) has invited internet service providers to attend a briefing on their copyright liability following the conclusion of oral argument in the Village Roadshow v iiNet case — judgment in which is expected early next year.

The briefing is designed to answer an interim question raised by the iiNet litigation: what should ISPs do between now and the final finding on liability? Doing nothing risks copycat legal action in the event that the rights-holders succeed. Changing infringement policies now looks bad and risks being bound by a higher standard than would be required in the event that iINet prevails. Further, the costs of doing something — monitoring customers, enforcing a repeat infringer policy, responding to take-down notices, and so on — should not be underestimated. Hopefully the IIA can offer some practical guidance to ISPs — particularly the smaller operators, who are undoubtedly troubled by the costly action iiNet has been forced to defend.

Australian government ponders R18+ games classification

Jaani — Mon, 07 Dec 2009 07:40:29 -0800

It seems that the Australian government is finally considering the introduction of a restricted classification (R18+) for computer games. Last week, the Attorney–General’s department released a discussion paper calling for submissions on whether the Classification (Publications, Films and Computer Games) Act 1995 (Cth) (Act) should be amended to permit the Office of Film and Literature Classification to rate a computer game as ‘restricted’, meaning that it is ‘unsuitable for those under 18’ and ‘may offend some sections of the adult community’.

Currently, the Act requires that any computer game unsuitable for a minor to see must be classified ‘Refused Classification’ (RC), which prevents it from being sold, hired, exhibited, displayed, demonstrated or advertised in Australia. We saw last year that this affected relatively mainstream titles, such as Fallout 3 (which originally encouraged in-game morphine use, and simulated effects of addiction) and Grand Theft Auto IV (which featured prostitution and realistic depictions of violence), ultimately forcing the developers to censor their worldwide release versions.

The current position is bad for numerous reasons. Most importantly, it doesn’t prevent any demonstrable harm to vulnerable persons in our community (notably children):

there’s no consensus that violent games cause violence — although some studies suggest a correlation in young age groups, this applies across all media — not just video games — and in any case, under an R18+ rating, adolescents wouldn’t be able to purchase games judged excessively violent; there is therefore no demonstrated need for the policy;
in any case, the absence of an R18+ rating means minors are more, not less, likely to access unsuitable games — banning an objectionable game simply encourages children to obtain an uncensored copy on the internet — a trivial task for most millennials — whereas regulated sales would be strictly controlled by retailers, leading to greater parental involvement in purchase decisions; in this way, the policy actually encourages the very thing it purports to prevent;
minors already have access to plenty of unsuitable material — banning RC games will not have an appreciable effect on minors’ ability to access numerous other material that would be refused classification, so the policy fails to achieve its stated objective;
the absence of an R18+ rating risks misinforming parents about the content of RC games — to classify game content as unsuitable for minors gives an unambiguous indication of its content, allowing parents to make more informed decisions about what games their children play;
an outright ban is disproportionate to the stated harm — given that the average age of computer gamers is 30, to prohibit this otherwise lawful activity for everyone would be disproportionate to any adverse consequences suffered by the small subsample of children who might otherwise be exposed to R18+ material; and
therefore, given that adults playing RC games does not of itself cause harm to anyone else, there is no case for restricting that activity — to proscribe lawful activity without reason offends justice and undermines the rule of law.

There are, of course, loads of other good arguments about why the current policy fails to prevent harm. More important, however, are the many tangible harms that the current policy actually does cause:

it unreasonably interferes with the right to private life — by proscribing media based on arbitrary normative criteria not accepted as valid by many educated adults, the government is imposing a moral standard on citizens that unreasonably encroaches upon their right to make decisions about the types of media they consume in the home;
it unjustifiably restricts freedom of expression — both of the makers of RC games, and their putative consumers (the act of consumption, given the nature of interactive media, also being a valid form of expression); for example, in Fallout 3, Japanese censors forced Bethesda to alter one quest in a fundamental way, so as to deprive players of the choice whether to detonate a nuclear bomb, while in Left 4 Dead 2, Valve had to cause bodies to fade away and remove important decals to make the game MA15+ compatible — actions which critics say significantly harmed the quality of the gaming experience;
it causes significant economic damage — a seemingly protectionist measure (since most RC games are foreign-developed), it actually harms domestic industries by encouraging copyright infringement, harming local game retailers (by forcing adults to buy RC games from overseas internet retailers), harming the local games industry and damaging Australia’s reputation as an innovator in electronic entertainment and digital credibility more widely; and
it undermines the coherence and authority of the classification system as a whole — the arbitrary exclusion of R18+ and X18+ computer games is inconsistent with the treatment of such materials in other media; although there is an argument that it takes a lower degree of violence in an interactive medium to elevate a work’s classification, the answer is to adopt different scaling criteria, not to exclude entire categories; to do otherwise risks damaging the moral authority and logical coherence of the entire scheme.

Introducing an R18+ classification is a step towards more coherent and effective regulation of electronic media content. This is especially so when it is remembered that the RC category would continue to prevent the sale of a game with ‘gratuitous or exploitative depictions of sexual violence’, as well as any game that ‘offends against the standards of morality, decency and propriety generally accepted by reasonable adults’ to such an extent that it should not be classified.

Interested members of the public have until 28 February 2010 to submit their comments on the discussion paper.

Syntactic autocracy and the judicial practice note

Jaani — Tue, 01 Dec 2009 06:38:02 -0800

These somewhat didactic — but on the whole reasonable — ‘order preparation guidelines’ were recently issued by Judge Robert Kressel of the United States District Court to solicitors responsible for preparing draft orders in bankruptcy proceedings. Given the ardency with which most lawyers defend their grammatical and syntactic convictions, the controversy sparked by the practice note is unsurprising.

The guidelines range from the infantile:

Guideline No 17 — Its and It’s
Please use the possessive noun “its” and the contraction “it’s” correctly.

…to the highly idiosyncratic:

Guideline No 3 — The Date
Please put a place for the date on the left side below the text. Do not put a month or year, simply put the word “Dated:” I use an electronic stamp to insert the date, so putting any part of the date is simply an inconvenience and an interference. The traditional line used to put the date is also unnecessary.

However, one does feel a certain sympathy for the clarity and precision so zealously sought by his Honour:

Guideline No 6 — Capitalization
Lawyers apparently love to capitalize words. Pleadings, including proposed orders, are commonly full of words that are capitalized, not quite randomly, but certainly with great abandon. Please limit the use of capitalization to proper names. For example, do not capitalize court, motion, movant, debtor, trustee, order, affidavit, stipulation, mortgage, lease or any of the other numerous words that are commonly capitalized.

Guideline No 7 — Use of articles

Lawyers apparently disfavor articles, both definite and indefinite. Use the articles “the,” “a,” and “an” as appropriate. Write the way you would speak. So, “the debtor,” not “debtor,” “the trustee,” not “trustee.”

(The lack of definite articles in American submissions and judgments has always been a pet peeve of mine; of course, given that many lawyers do drop the article in speech as well, this guideline may not prove as effective as hoped.)

And by far my favourite (notwithstanding that ‘And/Or’ is needlessly capitalised):

Guideline No 8 — And/Or

Never use “and/or.”

Is this what happens when a survivor of BigLaw ‘plain English’ moves to the bench?

Two views of the internet age

Jaani — Fri, 27 Nov 2009 07:54:19 -0800

An inspiring, if somewhat zealously expressed, thought for the day from Wired magazine’s Kevin Kelly:

Three thousand years from now, when keen minds review the past, I believe that our ancient time, here at the cusp of the third millennium, will be seen as another such era. In the years roughly coincidental with the Netscape IPO, humans began animating inert objects with tiny slivers of intelligence, connecting them into a global field, and linking their own minds into a single thing. This will be recognized as the largest, most complex, and most surprising event on the planet. Weaving nerves out of glass and radio waves, our species began wiring up all regions, all processes, all facts and notions into a grand network. From this embryonic neural net was born a collaborative interface for our civilization, a sensing, cognitive device with power that exceeded any previous invention. The Machine provided a new way of thinking (perfect search, total recall) and a new mind for an old species. It was the Beginning.

Contrast this antidote to fanatical techno-pessimism with Nicholas Carr’s equally cynical response:

… if there’s a higher consciousness to be found, then by all means let’s get elevated. My problem is this: When we view the Web in religious terms, when we imbue it with our personal yearning for transcendence, we can no longer see it objectively. By necessity, we have to look at the Internet as a moral force, not as a simple collection of inanimate hardware and software. No decent person wants to worship an amoral conglomeration of technology.

And so all the things that Web 2.0 represents - participation, collectivism, virtual communities, amateurism - become unarguably good things, things to be nurtured and applauded, emblems of progress toward a more enlightened state. But is it really so? … Might, on balance, the practical effect of Web 2.0 on society and culture be bad, not good? To see Web 2.0 as a moral force is to turn a deaf ear to such questions. …

Like it or not, Web 2.0, like Web 1.0, is amoral. It’s a set of technologies … that alters the forms and economics of production and consumption. It doesn’t care whether its consequences are good or bad. It doesn’t care whether it brings us to a higher consciousness or a lower one. It doesn’t care whether it burnishes our culture or dulls it. It doesn’t care whether it leads us into a golden age or a dark one. So let’s can the millenialist rhetoric and see the thing for what it is, not what we wish it would be.

Carr’s response, however eloquent, misses the point. The web isn’t a mere collection of neutral and ‘amoral’ technologies: it’s a transnational application of those technologies by human agents for specific ends — moral and immoral — where those agents are motivated by desires and productive of consequences whose ethical qualities can be described and evaluated according to traditional methods. Kelly’s point was not that a particular internet meme or group of technologies is by its nature ethical (that would, as Carr notes, be a bare claim); it was precisely that the effects of global information convergence are in fact likely to endear beyond our age. This seems a defensible claim because, although itself remarkably fragile, the internet is stability-promoting, democracy-enhancing and self-propagating. But to claim that a technology is historically significant isn’t to make a claim that the technology is inherently ethical or being applied in ethical ways.

More hyperbolic warnings of Chinese 'cyber spies'

Jaani — Tue, 24 Nov 2009 06:13:35 -0800

A report produced by the US–China Economic and Security Review Commission suggests that malicious attacks on United States military computer systems increased by 20 per cent in 2008, a figure that is projected to grow by 60 per cent in 2009. Experts attributed much of the increase to attacks originating in China:

“A large body of both circumstantial and forensic evidence strongly indicates Chinese state involvement in such activities,” the commission said in its 367-page report to Congress.

“China’s peacetime computer exploitation efforts are primarily focused on intelligence collection against US targets and Chinese dissident groups abroad.”

“China is changing the way that espionage is being done,” said Carolyn Bartholomew, who chaired the commission.

The report offers an alarming, though perhaps premature, conclusion:

China is likely using its maturing computer network exploitation capability to support intelligence collection against the US Government and industry by conducting a long term, sophisticated, computer network exploitation campaign. The problem is characterized by disciplined, standardized operations, sophisticated techniques, access to high-end software development resources, a deep knowledge of the targeted networks, and an ability to sustain activities inside targeted networks, sometimes over a period of months.

The attacks raise three main difficulties for investigators. First, although many of the attacks may have been traced to an IP address originating in China, there is often little if any direct evidence connecting an attack to a local state actor, as distinct from a private party or third country. Therefore, given the ease with which IP addresses can be spoofed or attacks redirected through vulnerable systems, pointing the finger at Chinese authorities may be premature. For example, the report notes that many attacks are traceable to ‘black hat’ hackers operating out of jurisdictions with a low enforcement risk (such as China), but concedes that ‘these relationships do not prove any government affiliation’. On the other hand, the scale and targets of attack (predominantly defense engineering data) suggest an operation ‘beyond the capabilities or profile of virtually all organized cybercriminal enterprises and is difficult at best without some type of state-sponsorship’. As to the scale of the operation, consider this passage (at 51):

China … has successfully exfiltrated at least 10 to 20 terabytes of data from US Government networks as of 2007, according to US Air Force estimates and that figure has possibly grown in the past two years, though no figure is publicly available

Second, not all attacks cause visible damage: passive information gathering or preparatory infiltration might go unnoticed for months, given the small amount of data being transferred. A lot of the attacks exploit 0-day vulnerabilities in web browsers and common file viewers, typically uploading a rootkit or other malicious payload for use in subsequent data monitoring. Usually, this doesn’t of itself grant an ability to disable the network, since the target is a user client rather than a server; however, it may give access to sensitive information that can later be used to disable the target network.

Finally, the report suggests that both public and private systems are being targeted, which makes it extremely difficult for government agencies to prevent and detect incidents. Targeted private companies are often defence contractors, with attackers using typical phishing methods of payload-injection. Here’s an example of an attack email sent to US military contractor:

Date: Tue, 10 Dec 2008 06:58:13 -0700 (PDT)
From: John Doe
To: employee.name@companyname.com
Subject: 7th Annual U.S. Defense Conference

7th Annual U.S. Defense Conference
1-2 Jan 2009
Ronald Reagan Building and International Trade Center
Washington, DC

Download 2009 Conference Preliminary Program (PDF)
http://conferences.satellite-[redacted].net/events/MDA_Prelim_09.zip
Download 2009 Conference Registration Form (PDF)
http://conferences.satellite-[redacted].net/events/MDA09_reg_form.zip

Contact: John Doe
Contractor Information Systems
(703) 555-1234
john.doe@yahoo.com