Category Archives: technology

3D printing- the next challenge for IP?

3D printing is a technological advance that has been getting a lot of press recently due to the sense of excitement about the possibilities it might hold. The implications of this advance are being speculated as huge, with the BBC asking if it will spark a ‘new industrial revolution’, The Economist announcing the benefits for third world countries, and others hoping that it might soon have promising implications for the medical industry.

Although 3D printing has been accessible to engineers and designers for a number of years, it has recently become much more affordable to the general public due to a decrease in the cost of technology.

What exactly is 3D printing?

3D printing works much like 2D printing, but in this case it enables solid objects, which otherwise are limited to mass production, to be printed and produced on an individual basis through the use of computer-aided design. These printers work by building an object layer by very thin layer, and in this way building an entire object through stacking these multiple layers of material.

3D printers are designed to enable inventors to make ideas, which would otherwise never go beyond anything more than a concept, into something substantial. The labs could mean that the power of production is no longer limited to the big businesses, but rather could be passed into the hands of the consumers themselves.

Although currently 3D printing can only print objects using one type of material at a time and can only use certain types of material, such as plastic, the future of 3D printing is looking at being able to recreate electronical devices through printing multi-material components.

What will 3D printing mean for the law?

However, alongside any technological advance, a host of legal difficulties generally also tends to arise. So, with production made more easily accessible, what implications will this have on the law? And specifically how can intellectual property be protected?

Although the idea behind 3D printing is to enable people to make their own ideas into an actuality, if 3D printing does become the way of the future, designs produced by other companies and manufacturers can be used to print certain items, and there is also the fear that in some cases they might be illegally replicated. Michael Weinberg, a senior staff attorney with Public Knowledge, warns that ‘printing in 3D is a disruptive technology that raises a lot of intellectual property issues’

The potential for piracy

The fear is that anything in the world will be able to replicated and reproduced without license- from iPhones and computer parts to chairs, shoes and much more. The question is- could the manufacturing industry go the same way as the music and film industry? Will they have to start worrying about BitTorrent sites leaking copies of design files for people to print cheaply and easily in the convenience of their own homes?

The backlash could lead to manufacturing companies seeking more restrictive protections on their products to prevent illegal copying. Weinberg warns that the implications could mean that ‘useful objects could be protected for decades after creation. Mechanical and functional innovation could be frozen by fears of massive copyright infringement lawsuits. Furthermore, articles that the public is free to recreate and improve upon today (such as a simple mug of bookend) would become subject to inaccessible and restrictive licensing agreements’

So could an invention that is designed to produce innovation really lead to the stifling and diminishing of just the very thing it seeks to promote?

A Possible Solution

However, there have been some moves to help fight against piracy on manufactured goods which should avoid a decrease in innovation and restrictive protections. The BBC announced last month that a patent has now been developed that would act much like DRM did on games and music. It will embed copy controls on 3D design files to ensure that they can only be printed by those with the correct authorization.

Whilst this may provide some solution, DRM for music and games by no means eliminated piracy, and proved hugely unpopular.

How do you protect a physical object?

Aside from an anxiety about piracy- another complication is that there is no set intellectual property protection that completely protects physical objects. Whilst there are some steps that can be taken to protect a physical object, none of these will actually protect the mold and shape of a physical object.

Trademarks protect names and therefore any logos on an object, designs protect the look of the object, patents protect how things work, and copyright might protect artistic patterns, but does not cover the actual physical object or the idea it expresses.

Another problems is that 3D printing also does not just allow objects to be replicated, but also allows for them to be altered making it much more unclear how and when a product’s intellectual property has been infringed.

What Next?

For now 3D printing has yet to become mainstream and it will probably be a while before every household owns a 3D printer alongside their 2D one- but these are some implications to bear in mind. This looks to be yet another area where the law will have to adapt to catch up to the ever changing world of technology.

Motorola, Microsoft patent war rages on

The Xbox 360 risks being banned in America if the US International Trade Commission (ITC) agrees with the initial findings of its Judge David Shaw, handed down in April.

Image of contract and a pen.Shaw found that Microsoft, owner of the Xbox brand, had violated 4 patents owned by Motorola Mobility.  His decision will be reviewed by the ITC in August, and if the commission agrees, sales of the Xbox 360 could be banned throughout the US, with potentially disastrous consequences for Microsoft.

The alleged infringements relate to technology used by the Xbox 360 S platform to transmit and compress video, purportedly covered by patents held by Motorola Mobility, a company that was recently acquired by Google.

Serving the public interest?

Microsoft argued that the ban would not serve the public interest, in that it would leave the Sony PS3 and Nintendo Wii as the only home consoles available for sale in the US.  In his recommendation of  7 May, Shaw disagreed, noting there was no allegation or demonstration “that Sony or Nintendo would fail to meet the demand for consumer video gaming consoles”, that “there is a strong public interest in enforcing intellectual property rights”, and that not to enforce those rights in light of a potential economic impact is appropriate only in exceptional circumstances.

In addition to the ban, Shaw also recommended that Microsoft be ordered to post a bond equal to 7% of the wholesale value of all unsold consoles in the country.  In argument, Microsoft advocated that no bond was necessary, while Motorola went after the full 100%.

Next steps in the process

The Xbox is not yet subject to a ban, and will remain on shelves until a final ruling has been made.  The ITC commissioners have until 23 August to decide whether the initial ruling should stand, be amended, or rejected. If they agree with Shaw, the Obama Administration will have a further 60 days to review the decision, and make the final call.

Despite Shaw’s recommendations, Microsoft remains confident that the commissioners will rule against the ban.  A company spokesperson said the ruling:

‘is the first step in the process leading to the Commission’s final ruling and has no immediate effect on the availability of Xbox 360 in the U.S. We remain confident the Commission will ultimately rule in Microsoft’s favour in this case and that Motorola will be held to its promise to make its standard essential patents available on fair and reasonable terms’ quoted in PC Mag.com 23 May 2012.

The bigger picture

This is just one of the recent engagements in a much wider patent battle, which has also seen rulings against Motorola, for example in Germany in relation to Microsoft’s patented technology enabling longer SMS text messages to be split up and reassembled.  In May, the ITC also sided with Microsoft in a dispute over Motorola’s use of patented technology for ‘generating meeting requests and group scheduling from a mobile device’, which, if approved by the Obama administration could see a ban imposed on the import of Motorola smartphones into the US unless the feature is removed from the Android software shipped with the devices.

Earlier in the year, Motorola was also granted an injunction against the distribution of the Xbox, Windows 7, Internet Explorer and Windows Media Player in Germany, after a ruling that Microsoft was infringing two Motorola patents.  A subsequent ban against sales of its games consoles in the US could have a significant impact on Microsoft’s bottom line.  Still, whereas Microsoft might suffer losses in connection with one of its more successful product lines, Motorola Mobility faces a potential exclusion order covering a huge segment of its business.

New cookie law no longer an issue following an ICO backtrack?

Many people breathed a sigh of relief following the Guardian’s take on last week’s ‘watering down’ of  EU regulations by the ICO which impact on the use of cookies by UK websites.  Unfortunately, perhaps as a result of Chinese whispers, the growing consensus seems to be that the European rules don’t apply and sites no longer need to take action.

The previous version of the guidance, seemingly no longer available from the ICO following a quick search, provided, at page 6, that:

“general awareness of the functions and uses of cookies is simply not high enough for websites to look to rely entirely in the first instance on implied consent.  As consumer awareness increases over the next few years it may well be easier for organisations to rely on that shared understanding to a greater degree”

The same paragraph suggested that the shared understanding necessary to rely on implied consent is more likely to be achieved ‘if websites make a real effort to ensure information about cookies is made clearly available to their users’.  Notably, the guidance indicated that mentioning cookies in a privacy policy would not be sufficient.

What some people appear to have taken away from the revised note, which elaborates on the above, is that the ‘watered down’ guidance means no action is necessary, because implied consent is suddenly an option.  However, implied consent (as opposed to requiring a visitor to subscribe, to check a box, or to click a button), was already envisaged by the ICO.  In particular, page 16 of the previous guidance explained that, if a notice is displayed asking for permission and the user does not explicitly give it by clicking ‘accept’, instead navigating to another part of the website, then “you might decide that you could set a cookie and infer consent from the fact that the user has seen a clear notice and actively indicated that they are comfortable with cookies by clicking through and using the site”.

While the revised guidance offers some further clarity on this point, and arguably relaxes the language somewhat such that implied consent seems a more viable option, it has not done away with the new requirements.  Specifically, rather than simply allowing users to opt-out of the use of cookies, websites now need opt-in consent.  To infer implied consent, you ought to be sure that visitors actually know you intend to use cookies, and why.  The Guardian, the BBC, BT and a host of other sites have been updated to do this with notices of varying size and prominence which could serve as inspiration for your own site.

If you only mention cookies in your privacy policy, or you have a link to “cookies” in your footer, it is likely that you are not doing enough to educate visitors to an extent adequate to infer consent. That doesn’t mean you need to drop everything and get your web developers on the line right away.  Although the grace period for non-enforcement by the ICO has ended it is perfectly clear the Commissioner does not intend to adopt a heavy handed approach.  However, you should also not ignore the changes, and it is important to take note that, where the new guidance refers to implied consent, it also mentions more than once how “explicit consent might allow for regulatory certainty”.  There are also international considerations to bear in mind, as mentioned in our earlier post.

What is important is to begin working towards compliance.  If you are a small business with scarce resources, then rather than dragging your heels, why not take some time to identify straightforward steps you can action now.  There are WordPress plugins, downloadable Javascripts and a range of other offerings that can help you to quickly demonstrate that you care about keeping your visitors in the loop, and complying with your legal obligations.

Are copyright owners winning the war against copyright infringement? Pirate Bay Blocking Order.

Tools enabling peer-to-peer (P2P) distribution of music, video, software and other copyright material are continuing to evolve in a way that presents an increasing challenge for the law, and hence for copyright owners who want to enforce their rights. From early bulletin board systems (BBS) to Usenet, P2P networks like Napster, less centralized services like Kazaa, and onion routing ‘darknets’ like Tor, it can be very difficult to track down online infringement and identify theft perpetrators. One of the most popular protocols for file sharing, both legitimate and infringing, is BitTorrent.

To share through BitTorrent, users generally distribute a .torrent file through a tracker (though there are ways to use BitTorrent without using a central tracker).  This tells other users what is available to download and how to access it. A number of websites index these torrent files, allowing visitors to search a library of thousands for the content they are looking for.  One of the most popular torrent search engines is the Pirate Bay. These search engines don’t store the content themselves, simply the torrent files that point to it. However, this is not enough to escape liability when services are used to share copyright material, as was made clear by the UK High Court in April, when it found that the Pirate Bay “sanctioned, approved and countenanced copyright infringement by its users”. As a result of these findings, major ISPs in the UK were ordered to block access to the website, just as they were ordered to block Newzbin last year.

To some extent these decisions broke new ground, as the blocked sites didn’t actually host copyright material themselves, just information about where to find it. They did however go somewhat further than this, and were held to have encouraged infringement by their users. This doesn’t mean you can sleep easy if you avoid actively promoting copyright infringement. If visitors share information through your site it’s important to be aware that you, rather than your users, may find yourself the first target of legal action relating to any infringement.

These are just two incidents highlighting what might happen when copyright owners enforce their rights online. Rights holders have also been active in campaigning for more effective legal protection, contributing to support for legislation such as the Digital Economy Act (DEA), which we have written about on a number of occasions. Interestingly, the success of copyright owners in cases like those mentioned above suggests legal protection is already at the right level, with the government deciding that existing legislation offers enough scope for blocking infringing websites, and declining for now to implement additional mechanisms envisaged by the DEA.

Does that mean copyright owners are winning the war? Probably not. James Ball at the Guardian argues that the Pirate Bay copyright crackdown is unsustainable. Ball suggests that compliance with the blocking order would be a “near impossible task” for ISPs, and this seems correct. To effectively prevent all access to a website from the UK means (at the very least) either taking that website offline (which can be very difficult depending on where it is hosted); or inspecting each and every ‘packet’ of information going in and out of the country. If those packets of information are sent through a network like Tor or otherwise encrypted the problem is compounded even further, and ‘impossible’ is not a stretch. However, it is important to appreciate that while a 100% effective block might be impossible, these steps will certainly make it more difficult to access infringing content.

Another very valid concern raised in Ball’s article is that efforts to curb infringement online risk suppressing legitimate activity. Not all torrents point to infringing material, and many websites (for example: Legit Torrents; Clearbits; and LinuxTracker) allow visitors to search for legitimate video content, creative commons-licensed work, and open source software. Sites like the Pirate Bay also hosted links to legitimate content, and a blanket block of the service means removing access to this along with infringing material. There are also a range of commercial risks when tackling infringement online.  One is the potential damage that can be wrought to your reputation by false accusations.  Some of the techniques used to identify copyright infringers online have led to controversy, and while lawyers have borne much of the brunt of the backlash to widespread legal threats, being overzealous when indentifying infringers can lead to consumer resentment. Tracking online copyright infringement can lead to false positives, and sending warnings to innocent users is not likely to go unnoticed.

There is no panacea here. As the law catches up, technology streaks further ahead. As soon as parts of the web are blocked out by court orders, others spring up in their place, and increasingly sophisticated techniques for hiding activity online mean there could be far more sharing taking place on the ‘darknets’, invisible to copyright owners. For online businesses, and those that want to enforce their copyright, the risks are many and varied. However, so are the opportunities. Just as the law develops to keep pace with evolving technology, I am always interested to see new business models emerging to meet the needs of both users, who want quick and easy access to content, and rights owners, who want to keep control of their creative output.

Software Licences and the US First Sale Doctrine – Psystar judgment handed down

Key to Apple’s surging popularity have been the ease of use of its products and software, and seamless integration between its devices and services.

Arguably unique in the personal computer industry, Apple exercises strict controls over every element of its product line.  This control over both the hardware and software used in its computers, peripherals and devices has enabled the company to ensure a consistent user experience worldwide, and to avoid compatibility issues which have in the past plagued other platforms.

However, this monopoly also means less choice for consumers.  Often, PC users choose to buy their own commodity hardware, put it together and install their operating system of choice.  The motivations for this are varied: some users are searching for bleeding edge performance; others are looking for value; and some simply enjoy the experience of building their own PC.

In the past a number of businesses have established themselves as alternative Mac hardware vendors – typically selling cheaper PCs tailored to be compatible with Apple’s OS X.  A recent example of such a business, fighting Apple in the courts for the right to do so, is Psystar.

Some would argue that Apple are shooting themselves in the foot by preventing other vendors from selling compatible packages that might increase the user base of OS X, sell more copies of the operating system and, possibly, sell more devices developed to integrate with that operating system.  However, Apple differs from companies like Microsoft in that it is arguably a hardware business.  Allowing hardware competitors into the marketplace to increase software sales is not good business sense for the company.  Particularly as the strength of Apple’s brand depends upon its ability to exercise strict controls over the user experience – “It just works”.

So, Apple’s software licence for OS X imposes significant restrictions on licensees.  A recent US ruling highlights the utility of software licences in enabling developers to control how their work is used.  At issue was whether the US first sale doctrine applied such that a purchaser could sell on Apple’s software as they saw fit – think buying a car and selling it on second hand.  The court found, unsurprisingly, that customers are not buying the software itself – they do not own the software after they buy a disc holding a copy of OS X, or download it – they are merely granted a licence to use it subject to a range of restrictions.  The terms of the licence they are granted preclude its use on other hardware.

This is bad news for Psystar but, as Groklaw points out, good news for proponents of Open Source Software.  It affirms the (albeit widely accepted) presumption that a US purchaser of open source software is not entitled by way of the first sale doctrine to resell it on their own terms and thereby circumvent an open source licence.

Software Patents and 1-Click Shopping

Websites, iPad apps, accounting systems, and the software running on your home wireless router are all the result of an often considerable investment of time, money, skill and effort.  In return, their creators are typically rewarded with a bundle of intellectual property rights.  One of the most important of these is copyright, which protects the software itself, and the graphics and text used in the interface.  However, more powerful protection is potentially available through registration of a patent for innovative aspects of software.  Rather than protecting design elements, or the source code behind software, a patent can be directed at protecting the more abstract mechanism used by the software to achieve its function.

The patenting of software is one of the most hotly debated issues in the field of intellectual property, and probably the most high profile case in the field is that of Amazon’s ‘1-click’ patent.  The alleged innovation consisted of a way of allowing online shoppers to buy products with a single click.  Instead of entering payment details each time, the Amazon servers identify visitors using a cookie stored on their computer and retrieve the information automatically.  While Amazon secured patent protection for the technique in the United States back in 1999, its efforts to obtain protection internationally provide an interesting illustration of the differing approaches taken to patent protection of software inventions in different jurisdictions.

For example, while the Canadian, US and Australian patent regimes have so far been broadly in favour of crucial elements of Amazon’s patent claims, the European Patent Office appears to be taking a different stance.  A more detailed analysis of the fate of the patent is available here.

There are also differences in the treatment of applications for patent protection of software within Europe, between the European Patent Office and the UK Intellectual Property Office, with the latter being viewed by some as less lenient when it comes to computer implemented inventions.

One comment in the Guardian’s editorial on the subject resounds with this author:

Until the mid-1990s the computer industry – including Microsoft – was opposed to such licensing. This was mainly because the industry was so innovative without the protection of patents, which in any case involved often quite trivial advances in technology that were regarded as a standard part of an engineer’s work.

Every non-trivial piece of software involves a series of technical problems overcome through the innovative application of a developer’s expertise and experience.  Unquantifiable amounts of code are written, and an unfathomable number of problems overcome each day by software engineers worldwide, and the 1-click ‘innovation’ by Amazon is far from the most complex of these.  Much like that of a developer, a lawyer’s work involves using language to communicate complex information, and the analysis of rules and their application under specific circumstances.  If monopoly rights were granted over certain approaches to applying rules to sets of facts, to the structure of contract templates, or to more effective means of communicating information linguistically, I would be concerned that many legal professionals would grind to a halt.

While patents offer an important incentive to innovate, and a just reward to those who develop new technology benefitting society, I worry that if the bar to patent protection is set too low for software then smaller players in the field, who cannot afford to acquire patent portfolios or to pay for licensing agreements, may be forced out of the market altogether.

News Reporting Post Social Media and Riots

The London riots brought chaos to the city for a few nights, and at times the looting and violence spread faster than news sites could keep track of them, leaving many to turn to social media for their source of news. Often TV coverage became unreliable, and the BBC played looping footage of past events, whilst rioting in different areas was still taking place. Twitter became the fastest method for the public to find out what was happening around London, and to check if their area had been hit by the riots.  

The advantage social media has is its immediacy, something traditional news channels cannot compete with easily. Due to the fast paced nature of the riots, the speed of social media really came into play.  As Darcy Mitchell of The 7th Chamber put it, ‘for one night social media beat the sleeping giants of old style media to their own game: front line reporting in the heart of the action’. News websites tried to keep up with the riots, setting up live blogs to follow the action, but they still did not manage to keep up with the ever- unfolding events. At times even the traditional media relied on social media for the most up to date information on the riots.

Some media operations such as the Guardian and Sky News did set up live blogs, which helped to communicate the true scale of what was happening across London better than TV could. However, although these operations received large amounts of traffic, it was Twitter that benefited the most during the riots. Experian noted this, saying ‘The real-time sharing of information through Twitter has made the platform the ideal discussion platform to spread updates on major news events like the riots, and yesterday (8 August) was Twitter’s biggest ever spike in UK traffic online’.

More Fiction than Fact?

Interestingly, rather than seeing social media as a totally new way of spreading the news, it might be seen as a return to the old days before news corporations existed to report on major events. In those days news relied on word of mouth to be spread. Obviously, back then word of mouth did not have the capacity to spread as quickly it can through social media. However, there is a downside and a difference to this style of news telling. As social media consultant Matt Rhodes said: ‘There’s a danger of thinking that because something is on Twitter, it’s true. People have some kind of trust in things that are published’. Whereas when news is spread verbally, the majority of people take it with a pinch of salt, news reported on Twitter or Facebook is taken more as fact.

At times rumours were circulated just as much, and perhaps even more than facts during the riots. As social psychologist, Aleks Krotoski, stated, ‘the problem with social media or the internet is how quickly this information can spread. Misinformation has been around for a really long time, but historically there have been gatekeepers to confirm things externally’.

Amongst rumors published via social media were claims the Camden Roundhouse had been set on fire; groups of hooded youths were heading towards Holloway, and even that rioters had attacked London Zoo, setting various animals free.

Yes, the use of Twitter and Facebook to spread news can sometimes create more fiction than fact; however,we are nevertheless seeing a fundamental change in how news is being reported. Before the age of social media, journalists acted as gatekeepers to information, where news corporations held the power to spreading news.

Now, social media has given power to the public to report news themselves.

This is not to say that traditional media is being replaced by social media.  Many journalists Tweet alongside the public, separating fact from rumors and providing more trustworthy accounts of the riots. Social media represents a new element to news reporting. We still need the traditional media to provide official accounts of events in the world, but what social media allows is for the public to add their own comments and analysis on events, arguably giving a more diverse voice and democratic way of news reporting. Social media allows those who are personally witnessing events unfolding to report what is happening.

Google Instant Search – Fast and Fatal!

Last year, Google introduced its ‘Google Instant Search’, a new feature that displays suggested results as soon as you start typing your search phrase.  The service also sports improved ‘predictive’ search queries – much like predictive text on mobile phones – for example when you start to type ‘Apple’ into Google, it may suggest ‘apple store’, ‘apple trailers’ and ‘apple TV’.

The aim is to save users’ time, and supply results faster than before.  All well and good for consumers, but how does it affect businesses?

One impact is that it is likely to change the way people search.  A key idea behind instant search is to help users formulate a better, more accurate search term for what they are looking for by giving them feedback on the fly.  This affects the terms users might otherwise search for, and has implications for SEO.

Andy Beal from Marketing Pilgrim, highlighted how, with Google Instant, searchers don’t have to commit to any search query.  The way people carry out research will change as there is no longer a need to follow the traditional ‘search and then refine’ process.

A likely knock on effect is that fewer people will scroll down the first page, instead focusing on the top few results, and simply refining their search as they type if what they are looking for does not rank highly.

In a blog post, optimum7.com describes it as ‘the death of the second page’ – SEO has become more important then ever. Keyword research needs to be thorough, and long tail keywords are now much more beneficial.

Reputation Damaging Predictions

Another major implication Google’s predictive search is to do with online reputation. The experience of  some businesses is that bad press can lead to negative predictions when searchers type their company name into Google, potentially causing lasting damage to their reputation.  There have even been instances of legal action brought against Google to remove certain suggestions.                     

A blog piece by Danny Sullivan in search engine land highlighted some of these. One case involved a request that the French word for scam (arnaque) not appear after the name of a long distance learning company. Google appears to have complied with this request however, as noted by Sullivan, this change was not gobal as both ‘arnaque paypal’ and ‘arnaque groupon’ appear as suggestions when typing ‘arnaque into Google.

I decided to carry out some searches myself to find other suggestions which might leave businesses in a bad light, and noticed that when typing in ‘Treyarch’, the name of an American video developer company, the word ‘sucks’ appears as a suggestion. I also found a complaint in Google’s help forum that Google’s predictive search was hurting a client’s reputation as the words ‘scam’ ‘fake’ and ‘forgery’ appeared after the company’s name.

Google predictive search makes it even more important to monitor online reputation.  As search technology develops, and new features emerge, businesses will need to be ever more vigilant in terms of their SEO strategy to ensure they are able to manage their risk and maintain a positive online reputation.

Newzbin, the DEA, and the Great Wall of BT – A Mixed Bag for the MPA?

Image by Si McMahon, click for Flickr

Further progress was made in the Newzbin saga last week when the High Court ordered BT to prevent its subscribers from accessing the website.  You may recall that the site had hopped abroad to the Seychelles, escaping the reach of the UK courts (or so it thought).  However, despite its emigration, the Motion Picture Association has succeeded in finding another way to attack its user base.

The blocking order, the first of its kind in the UK, requires BT to implement technology similar to that used to block sites featuring child abuse.  The technology works via a mechanism similar to email SPAM blockers you might use yourself, or web browser plugins used by many to hide adverts on web pages.  The ISP will return to the courtroom in October to iron out the details, but in the meantime the case is suggested by commentators to have been partly behind a recent Digital Economy Act (DEA) u-turn.

One of the significant provisions of the DEA, heralded by some as a key weapon for copyright holders, was intended to allow the blocking of infringing websites.  Not implemented in full by the DEA, the details were still to be finalised by secondary legislation.  However, following an announcement by the Business Secretary Vince Cable it seems this may never happen, as Ofcom is to review the policy.  Echoing the not-uncommon opinion that the DEA is outdated before it has even had an impact, Mr. Cable said “We’ve discovered that the drafting of the original laws, which took place a year or so ago, were not tight”.

A real problem with the intersection of copyright law and technology is the phenomenal pace at which technology develops, in stark contrast with the gears of the legislature.  A mixed bag all round, with the film industry cheering the result of the Newzbin case on the one hand, but unhappy with the possible loss of the DEA’s teeth on the other, some believe that blocking measures may not even be feasible with BT’s current technology.

James Blessing, a member of the Internet Service Providers’ Association remarked that “Trying to put Newzbin and other sites into the same blocking technology would be a bit like shutting down the M1. It is not designed to do that.”

Popular concerns include flood-gates and censorship – “What will qualify a site to be worthy of blocking? Who makes the decisions about what people are allowed to see online?” asks Peter Bradwell, a campaigner for the Open Rights Group, who says of the ruling: “if the goal is boosting creators’ ability to make money from their work then we need to abandon these technology naive measures, focus on genuine market reforms, and satisfy unmet consumer demand”.

While Mr. Blessing’s statement may be true as far as CleanFeed goes, the technology will likely be available to implement the blocks in the near future. However, as with most DRM (even DRM applied to an entire country) those with enough determination will find a way through the wall.

In the meantime, it seems that the internet, an invention aimed at breaking down barriers, is slowly becoming cluttered with ‘walls’ – firewalls (not criticising virus protection); pay-walls; the ‘great firewall of China’; and now this.  Where next?

New Challenges for Rights Owners

The internet revolutionised the way people could discover and share information, but as technology has developed, the volume of information which can be shared online, and the variety of its application have broadened significantly.  When the bandwidth available to typical internet users was sufficient, there was an explosion in online sharing of music through services like Napster, and later, the same happened for video through BitTorrent.  This poses a significant challenge to the enforcement of copyright, as the internet is a difficult medium to police, and neither locating infringing activity, nor identifying those involved, is particularly straightforward.

These difficulties are widely acknowledged and understood, but there is another feature of information which seems set to cause further difficulties for rights owners.  New and varied ways of using it.  While the bandwidth available to the public has had a substantial impact on the prevalence of copyright infringement online, another, similarly important factor has been the introduction of new formats, new ways of using data.  An early illustration is the availability of home video recorders, allowing members of the public to record and share video content.  Ubiquitous adoption of the  MP3 format made it easier for people to share music online.  Now, 3-dimensional printing promises to allow the public to copy actual physical goods.  New 3D printers are coming down in price, and give users the ability to print out products which have been downloaded from the internet, or scanned in.  A recent article by the Economist notes that this technology is likely to make it ‘easier for imitators as well as innovators to get goods to market fast‘ as good ideas will be more readily reproduced.  one website, Thingiverse.com, has already been issued a take down notice for offering the means to print out a 3D ornament, and the recent  Hargreaves report raised concerns over the possible implications of 3-D printing as convenient engines of piracy, but simultaneously vital tools in many trades, recommending further investigation.

Another interesting development is increasing interest in DIY genetics, an esoteric field traditionally restricted to specialist laboratories, but where more affordable technology may enable the public to develop their own biological products, or copy existing ones.  It is also not far fetched to envisage affordable machinery becoming available which enables the public to develop, produce and share pharmaceuticals.

These emerging technologies have the potential to revolutionise accessibility to treatments, drugs, and products where cost was previously prohibitive, but they also mean new challenges for rights owners who may find it increasingly difficult to protect their intellectual property.