TechWire

EU demands "due process" for three-strikes: experts say it won't deter new law

So it's official. The EU has approved legislation that requires "due process" before a file-sharer can be cut off by his ISP, regardless of any 'three-strikes' policy.

The telecoms commissioner, Viviane Reding, is firmly of the view that this means the involvement of a judge and/or a court. As I wrote last week (see below), I'm not convinced of that. And neither is a legal specialist from the British law firm (Pinsent Masons) that publishes Out-law.com, an excellent tech-focused legal newsletter.

John MacKenzie argues that Britain's proposed three-strikes law does not conflict with the just-passed EU law.

As Out-law.com points out, this is because Britain intends to allow cut-off subscribers to appeal to a body set up by Ofcom. If a subscriber appeals, the disconnection will not happen until after the appeal.

"The Directive … will require a process to be followed before disconnection takes place," said MacKenzie. "That gives member states a lot of flexibility for policies like three-strikes-and-you're-out. It doesn't demand a right to a trial before disconnection takes place."

MacKenzie said that Reding's comments do not necessarily change the position because there is some flexibility about exactly what can be meant by a 'judge'.

"When someone is having their electricity supply cut off then there is a warrant granted by a magistrate following the presenting or certain evidence," he said. "The procedure to freeze assets includes a warrant being seen by a judge but that doesn't men you have full blown trial."

"It depends what you mean by 'a judge'," he said. "An arbiter – somebody appointed to decide or deal with these issues – may not be a judge in the classic sense but would be a decision maker and as long as there is a process in place to allow people to fairly and properly to oppose or recall these orders that should comply with European law."

Slugger O'Toole lands cash deal with Channel 4

Congrats to Northern Irish blogger, Mick Fealty (aka Slugger O'Toole), who has landed a deal with Channel 4.

Although the amount hasn't been disclosed, Channel 4 will now 'invest' in Mick's Slugger blog. Very interesting (and welcome) to see a bit of real-world commerce entering the Irish blogosphere.

EU telecoms commissioner: three-strikes will "certainly not become part of EU law"

Okay, there's a new law on internet access coming down from Europe.

Its significance lies in any effect it might have on the current legislative drift toward a Europe-wide 'three strikes' principle against file-sharers (as is law in France and may soon be law in Britain).

On one hand, it appears to galvanise resistance against a three-strikes law. But when read more closely, it may do nothing more than represent a principle that won't, ultimately, prevent a three-strikes law being introduced in Ireland.

Here's what it says (it's a bit windy, but it's important for anyone following this debate. I've added the bolded emphasis):

Article 1(3)a of the new Framework Directive

"Measures taken by Member States regarding end-users’ access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.

Any of these measures regarding end-users’ access to or use of services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms . The right to an effective and timely judicial review shall be guaranteed."

Okay, does that make sense?

If not, the European telecoms commissioner, Vivane Reding, sums it up this way:

"The new internet freedom provision represents a great victory for the rights and freedoms of European citizens. The debate between Parliament and Council has also clearly shown that we need find new, more modern and more effective ways in Europe to protect intellectual property and artistic creation. The promotion of legal offers, including across borders, should become a priority for policy-makers. 'Three-strikes-laws', which could cut off Internet access without a prior fair and impartial procedure or without effective and timely judicial review, will certainly not become part of European law."

Fairly bullish. But there is a key distinction. Three-strikes may not become part of European law at EU level. But that does NOT mean that three-strikes laws will not become law in member states. (It's already the law in France. It may soon be law in Britain.)

A lot of this seems to hang on the meaning of the term ‘judicial protection’.

I know that this is supposed to imply a judge’s oversight. But looking at the way that European law is often transposed into Irish law, it’s not really clear whether this strictly means that a judge has to physically oversee every internet termination.

This is especially so in a free and open market with multiple ISPs in operation (so that an ISP can claim that there are several other means of internet connection open to the cut-off party).

The thing is, if they actually wanted to rule out the introduction of a three-strikes rule, they could have been more specific. They could have simply said: no ISP may cut off a customer’s internet connection without a judicial order.

They didn't do that. Deliberately.

The Economist: illegal file-sharing declines when legal alternatives emerge

This Sunday, I'm writing about why the film industry is facing a massive shock in Ireland (and Europe) due to the lack of a legal movie-downloading (blockbusters, not out-of-copyright titles) service.

One of the key comparisons is with the music industry which, thanks to services like Spotify, is now actually seeing a decline in piracy (primarily in those countries that are offering affordable, legal alternatives).

The Economist agrees, it seems.

Apps.ie heading towards 100 Irish-made iPhone applications

Apps.ie is going from strength to strength. It now has 77 Irish-made iPhone apps up on the side.

Congratulations to all at X-Cake.

Brown Thomas wrecks its 'Christmas' brand

For about 15 years, the shop window in Brown Thomas's Grafton Street store has been part of a wider 'Christmas experience' in Dublin. (I know that sounds twee, but it's true.)

In the last two years, however, the shop has gone off on bizarre fashion tangents that appear to have little to do with Christmas.

In doing so, Brown Thomas is destroying a valuable part of its brand.

While on the topic, we wish that Brown Thomas would take a bit more tech stuff. While it's true that that it is unlikely to be the place to buy a 1TB hard drive, it could surely incorporate some high-end, outrageously expensive (and gorgeous) gadgets.

After all, what else are men supposed to do when dragged in there?

Winner of the Weckler First-Mover Marketing Bandwagon Award

And it goes to Simpson FT PR and CTC Ireland.

The following press release was received at 11a.m. this morning, 12 hours and 25 minutes after Ireland were cheated out of a World Cup spot.

News Release
 
Mi-Football – Unique iPod Speaker System Launched in Ireland
-- A football you can touch with your hand - even if you aren’t French

Dublin; Thursday, 19th November, 2009: Irish distributor CTC today announced a novel iPod speaker in the shape of a football. "You can control the volume by touch so this is one football you can handle, even if you aren’t French," commented Graham Doyle, Director, CTC Ireland.

The Mi-Football is compatible with all iPod models released to date including iPod Nano as well as iPhone and iTouch. Its powerful sound is delivered through three speakers. Its 2.1 channel speaker system combines with a subwoofer for a sound which belies its compact size.

As well as control by touch the Mi-Football includes a remote control that works with your iPod.  The docking system charges your iPod while playing music.

Mi-Football is available from €69 and is available from O2 stores, 3 and Xtravision.

Graham Doyle, Director, CTC Ireland said, "We anticipate a big rush on this for Christmas. Irish football fans may be temporarily down but they can revive their spirits and sing on with this powerful iPod speaker."

Why most successful people don’t blog, network or Tweet

When I started in The Sunday Business Post in 1999, I only had to keep an eye on two things during the working day: my email and my phone. Today, as I write, I am plagued by the duty to monitor umpteen forums of communication:

-- email
-- Twitter
-- my blog
-- RSS feeds
-- Facebook
-- mobile
-- landline

That's not to mention whatever is breaking online.

The truth is that staying connected in a Web 2.0 way takes a hefty time commitment. And, to be honest, that is time that most successful people do not have.

Instead of Tweeting about how they plan one day to be successful, they're out closing a deal. Or are working throughout the night for a client. Or are writing a prospectus to pitch to someone. You even notice this among formerly frequent bloggers who are now making a commercial go of it somewhere -- their frequency and commitment to blogging has come right down.

Is this just the way of the world?

Think about this: take the top 10,000 business people in Ireland. How many of them Tweet? How many of them blog? Now take the top 10,000 Tweeters and bloggers in Ireland. How many of them are very successful?

I'm sure that this view might draw ire. But it's the truth.

Collison's tips for tech start-ups

Patrick Collison is a very smart, very successful fellow. So when he blogs about what's important when getting your start-up going, it's worth paying attention.

Here's an extract of what he says:

-- "A good product is so much more important than first mover advantage. Obvious, but keeps surprising me. Facebook, the iPhone, Dropbox, Skype, etc., have an amazing array of failed predecessors."

-- "Succeeding at biz dev just requires endless persistence."

-- "Internationalisation is an underexploited axis—people try to expand on the x-y plane, and ignore this third dimension. We grew our iPhone app revenue by over 200% through internationalisation."

ECJ: no more buying competitors' name(s) on adwords?

Here's something that I know will be of interest to a few regular readers. It concerns the legality of purchasing the name of a competitor or rival in Google adwords, and using that to redirect the web user to your own service.

Below is an extract from a news alert issued by the European Court of Justice. The case in question is due to be heard next week (Thursday 26th).

Hearing in Case C-558/08 Portakabin v Primakabin

In this particular case Portakabin have sued a competitor, Primakabin, for having purchased "Portakabin" and a number of variants of that word, as adwords in a number of internet search engines, so that a person searching for that word would be shown adverts directing them to Primakabin's site. Portakabin claims that such use infringes their rights as trademark owner of the word "Portakabin".

The Dutch Supreme Court (the Hoge Raad), now hearing the case, has decided to refer a number of questions to the Court of Justice on the matter.

Should be interesting.

Incidentally, the European Advocate General has already given his opinion on this:

In this context, the Advocate General finds that both Google's search engine and AdWords constitute information society services. He adds that service providers seeking to benefit from a liability exemption under the E-Commerce Directive should remain neutral as regards the information they carry or host.
However, whilst the search engine is a neutral information vehicle applying objective criteria in order to generate the most relevant sites to the keywords entered, that is not the case with Adwords where Google has a direct pecuniary interest in internet users clicking on the ads' links.
Accordingly, the liability exemption for hosts provided for in the E-Commerce Directive should not apply to the content featured in AdWords.

Video review: Sony PSP Go

Video review: HTC Hero

The case for a paywall for Irish newspapers

There's a huge elephant in our industry's room. It's getting bigger and bigger every week. By the end of 2010, it'll be a woolly mammoth on steroids. It is the issue of publishing newspaper content free online.

Don't get me wrong: this is the system I instinctively prefer. I love the idea of freedom of information (I blog and Tweet, for example). And I have long believed that there can be a way of making it work, commercially. To date, however, the world's newspapers have not found out what that method is. Instead, they all publish their newspapers online every day, for free. And guess what? Now that everyone has broadband, their circulations are falling.

It doesn't take a rocket scientist to figure out why.

Recently, Rupert Murdoch has kickstarted the debate of 'free' v 'paywall' by declaring that he would try and take a number of his newspapers' sites into a paywall. This includes the Times, Sun and New York Post.

The reason he's on about this is twofold. First, his newspapers' circulation is suffering. Second, the only paper he has that uses a paywall -- The Wall Street Journal -- makes good money from it. As a result, it's in relatively good financial health.

His logic is compelling: why should he sit back and watch his newspapers crumble because the industry convention is to give the stories away free on his own websites?

Sooner or later, the same issues will surface in the Irish newspaper industry. Because Ireland is traditionally behind most of the western world in tech stuff and online adoption (including broadband), it hasn't been a huge issue up to now. But now, most people in Ireland have access to broadband. And they're reading newspapers online.

And why shouldn't they? Only a moron would pay for something that's easily available free, right? They don't even have to wait until they get home, either: most new mobile phones are very competent at browsing the web.

So sooner or later we're going to have face this question, folks: if we as an industry cannot make money out of free-to-access websites -- and no-one in the world seems to be managing it -- we're going to have to consider an alternative. That almost certainly means a paywall.

I don't relish this happening. But if the choice is a continuous decline in circulation figures or a paywall, it's not really that tough a choice. I mean, ask yourself: what would you do?

Revealed: music labels suffer, artists' earnings soar

The London Times newspaper has done a fascinating survey of who is making money from the music business.

Its conclusion is that while music labels may be suffering, singers, bands and artists are actually making more than they've every earned (see graph below). This is because revenue from concerts and live performances is soaring. As the Times article points out, an artist keeps a far higher percentage of the take form a concert or a tour than they do from a CD or record deal.

This is not to belittle the problems facing music labels. However, it does shed some very welcome light on the charge often made by labels that it is artists -- and not music labels -- suffering when music is swapped for free.

For anyone interested in this debate, this is a must-read analysis.

 

Websites' search facilities: #fail

Go into O2.ie. Search for 'Aino', which is Sony Ericsson's new phone.

Nothing there, the site tells you. Okay, search for 'Satio', another new Sony Ericsson phone. Again, nothing returned. Now go into the 'shop' section. Scroll down and what do you see? The Sony Ericsson Aino. Scroll further and there's the Sony Ericsson Satio.

Honestly, what is the point of having a search box if it doesn't work?

This is not limited to O2. Many, many times I have tried the search box on Vodafone's website to be told that they have no listings for the item I requested. Two minutes of manual searching myself and I find the item. It's a crock of crap.

And it's not just phone operators. When looking for info about Canon's new P-150 scanner (below), I went to Canon's website and entered 'P150'. No listings. Obviously the hyphen is CRUCIAL.

Why do SO many consumer/retail websites have search functions that just don't work?