TV Content Delivery – Collisions in the Digital Paradigm VI

I have blogged before on the problems of market segmentation and regionalisation of content – especially in the context of access to downloadable content. Like many I am of the view that the Digital Paradigm has swept away many of the preconceptions that may once have existed about the distribution of music and video content. As services become available, more and more people are eschewing the covert downloading of material and opting for a paid service. Netflix is an example. Even so, some content distributors just haven’t got it right.

Take Television New Zealand and TV3 for example. They boast an “On-Demand Service” that really is not very satisfactory at all. All the content is available for a short term only and then it vanishes. The opportunity to watch a whole series of “back to back” episodes is just not available. To make matters worse, some of the content, such as “American Crime” is not available on “free to air” TV thus making it impossible to time shift using MySky and watching an episode or a number of episodes at a convenient time. Rather like broadcast TV, if you can’t make it in front of a screen when the network is prepared to make the content available, you miss out. To make matters even worse, if one is travelling within the “window of opportunity” that the networks allow us to view an episode or episodes, regional blocking means that the content is “not available” in the US, UK or the Continent and who wants to go through the proxy or VPN hassle when one is travelling. Hardly a satisfactory way of delivering content in a Global environment.

I understand that broadcast and screening rights are governed by licensing arrangements and it seems to me that these licensing arrangements contribute to the market segmentation-regionalisation problem. One would have thought that when Netflix arrived in New Zealand one of its big selling points would be the third series of “House of Cards”. But no. Netflix in New Zealand doesn’t have the rights. Nor, it would seem, does anyone else. Astonishing!

There are some that I know who resolve this problem by anonymisation or VPN and take out subscriptions to US based content providers like Hulu or Netflix. All perfectly legal (up to a point) in that the fees have been paid and there is no suggestion of downloading content for free via bit torrent. The only issue is a contractual one – misrepresentations have been made as to location. Yet no one loses, especially when the content (like “House of Cards Series 3) is simply not available in New Zealand.

The networks have put in place other measures to discourage piracy. Broadcast series like “The Walking Dead”, “Arrow” and “Game of Thrones” are broadcast simultaneously in New Zealand – whether this is to prevent piracy by downlaoding or to prevent fans from seeing “spoilers” on their Twitter feeds or Facebook pages I know not – there is already a spoiler out for “Game of Thrones” – a book in fact, but it is rather large and requires a considerable attention span not possessed of many in these days of instant on-line gratification.

But what has happened in recent times is a further move to cement in market segmentation and regionalisation of content delivery. Internet service providers who have made a “global” option available so that their subscribers can view overseas content via Hulu are in the firing line from the major players in the content delivery field in New Zealand. Lets just say that the legal position is an interesting one and will provide lawyers with some novel arguments in the area of copyright and copyright licensing.

But to what avail. Should the major players be successful they will have shut down one way by which Digital Natives get their content. In the spirit of Michael Froomkin’s concept of regulatory arbitrage, those who seek content will find it via VPN or other anonymisation techniques. Perhaps it is time for the majors to realise that old style market segmentation and content delivery methods have had their day. Digital delivery has been adopted by most, but still with the tattered trappings of pre-digital thinking. A global approach to content delivery  should be adopted, together with a more meaningful local “on-demand” business model. All that is required is a shift in thinking.

The Ghost of Copyright Past – Collisions in the Digital Paradigm V

It is not too often that I have a personal experience of a Collision in the Digital Paradigm where the law becomes head to head with technological reality, but the following post is inspired by a recent occurrence.

When we were in London in late 2014 we saw a number of shows. We were spoilt for choice but one we wanted to see – and had missed on earlier occasions – was “Jersey Boys”, the musical about the Four Seasons. The experience in London was a good one. We walked from where we were staying at the East India Club to the heart of Piccadilly, had a quick meal and then on to the show. It was great – well staged, well acted, very slick and professional as one would expect. And then there was the music. That was always great but there is something extra special about hearing Sixties music with the sound technology that is available today. Other experiences include the music of the Beatles, remixed and remastered for the Cirque du Soleil show “Love” and the music of Elvis again for Cirque du Soleil’s “Viva Elvis”.  Those opening chords of “Jailhouse Rock” never sounded better. Both shows, incidentally, were at Las Vegas. But back to “Jersey Boys”. I missed the movie was well, so I was delighted to see that it was available on Bluray and DVD.

Time for a rewind. I have rather eclectic tastes in movies and have taken advantage of the DVD revolution (which would never have happened had the movie companies not been forced into the new market model of VHS [and subsequently DVD) as a result of format shifting and the case of Sony Corp of America v Universal City Studios 464 US 417 (1984)) to build up a collection. I encountered early problems with region coding. Many of the movies I wanted were not available in our Region 4 part of the world. It was necessary to obtain a region free DVD player or a software workaround for the DVD player on my computer to view DVDs sourced from Region 1 or 2 outlets. I had some concerns. The state of the law under our s.226 of the Copyright Act 1994 seemed to be ambivalent about circumventing technological protection measures like region coding where there were no infringement implications and the copy of the DVD had been legitimately acquired. There was a frisson of concern when the decision in Sony Computer Entertainment v Ball [2004] EWHC 1738 (Ch) was released with the suggestion in that case that content owners could set their own terms and conditions of sale of their product in addition to the statutory scheme of copyright – essentially allowing for copyright by contract. But as long as there was no copying there was no question of infringement.

With the passage of time more and more region-free DVD players became available and it seemed that distributor based market segmentation and regionalised markets were on the way out. Then along came Bluray and an even more rigorous form of region coding was instituted. Bluray players were not region free. And this was the position for a while. It was about 2102 that I heard of a region free Bluray player that was available in New Zealand, but it was pretty expensive. On the other hand it had a whole lot a features that made it very attractive. In addition, there were models available for a fraction of the cost of the NZ product but these could not be shipped to addresses outside the US. Fortunately NZ Post with its wonderful Youshop service with the provision of a US mailing address came to the rescue so welcome region free Bluray and DVD player with all sorts of additional goodies like 3D. The Bluray market became open slather.

And what about those copyright concerns. As a result of the 2008 amendments to the Copyright Act the definition of a technological protection measure does not include a device that controls access to a work for non-infringing purposes (for example, it does not include a process, treatment, mechanism, device, or system to the extent that it controls geographic market segmentation by preventing the playback in New Zealand of a non-infringing copy of a work) – see section 226 Copyright Act 1994. So circumventing access control mechanisms with  geographic implications – like region coding – is not viewed as any form of prohibited or infringing conduct. Thus, to circumvent a Region 1 (or A on Bluray) legitimately acquired disc to allow it to be viewed had no unlawful elements to it.

So back to the “Jersey Boys”. Having missed the movie and having enjoyed the stage show I purchased a Bluray version of the movie from Amazon. I addition to enjoying the show I was interested to see how Clint Eastwood made the transition from stage to screen. He is a fine director with some great credits. And the Bluray arrived. And inside was a little leaflet allowing me to add the movie to a Digital HD collection with Ultraviolet. This service, associated with an online retailer like Flixter enables access to movies in the collection on a number of devices. An advantage is that if one has a device like Chromecast a movie can be streamed via a computer or laptop and viewed on a TV screen. Great service and Chromecast is a great technology.

There is the leaflet with the code so that I can add “Jersey Boys” to my collection. I go to the Flixter site and enter the code, only to receive the message that the code is not valid for my region or territory. Once again it seems that region coding and market segmentation has hit the streaming video market. I am aware that this is a characteristic  or on-line content. Hulu and Netflix are available only to certain defined and regionally segmented IP addresses but it seemed to me that a legitimately acquired Bluray – that incidentally has NO region coding that was associated with an Ultraviolet code SHOULD be available world wide. I checked the fine print. Although I had obtained the copy from Amazon, there was a bold notice that the DVD was not for sale outside the USA or Canada. However, there was nothing on the Ultraviolet slip inside the case that suggested that the code was only valid for use inside the US or Canada.

I have always had difficulty with the idea of market segmentation. I have never supported the concept that content purchased from a particular geographical market could only be consumed within that geographical area. After all, a paperback book purchased in the US does not become “unreadable” as the plane leaves LAX. Why should DVDs or Blurays or Digital content be any different. The Internet has made markets global. The vendor from a suburb in Auckland who does business via the Web has a worldwide market – not just a local one. Similarly with those who sell and distribute on-line content. But the problem is that those most resistant to change in the Digital Paradigm are those who can benefit the most from it.

Why do I say that? Remember the case to which I referred earlier – Sony v Universal City Studios. That was a case where Sony, the developer of the Betamax videorecorder, sought relief from the US Supreme Court against the movie studios who sought to have the videorecorder banned because it was used for copyright infringement. Not so, held the USSC. There were substantial non-infringing uses, among them the concept of time shifting where one might record a show for viewing at a later time without engaging in infringement. The movie companies retired in disorder and then realised that the technology that they had tried to shut down could be used as an alternative means of movie distribution. In addition it meant that the back catalogue of the studios could be redistributed. This business model would have been lost if the Betamax case had been resolved in their favour. So the content distrbutors were – and to a degree still are – dragged kicking and screaming into the new Paradigm. DVD technology then replaced the videocasette and Bluray and streaming content will replace the DVD. But geographic segmentation remains the same – the ghost of copyright past.

When DVDs and digital content were in their early days, technological protection measures to guard against the wholesale copying of content were proposed. As Charles Clark said “the answer to the machine is in the machine”. In the same way there are work arounds to geographical restrictions – not only for region coded DVDs but also for streaming content. The legitimacy of such work arounds depends very much upon local law and the terms and conditions applicable to the product purchased.

It is not necessary to purchase the DVD or Bluray product to obtain the Ultra codes to add downloadable content to one’s library. Ultra codes are available for sale that allow this to be done. Once again the purchase of the code means that there are no infringement implications. So how does one avoid the “market segmentation” implications. As I say this depends on local law, but assuming that local law does not prohibit such workarounds, the use of a browser based anonymisation solution is probably the easiest and most user friendly way. Anonymox  is available both for Firefox and Chrome. The Firefox plugin works more effectively than the Chrome one, not the least because it showed the IP number and geographical location in the browser bar. But I emphasise, such a solution depends upon local law. It is not an offence in New Zealand to circumvent a TPM and a TPM does not include a device in place for market segmentation where the product has been legitimately acquired (although there may be contract implications). It is an offence under US law to circumvent a TPM. So one must be careful to comply with the law.

It is unfortunate that content owners are slow to recognise the new opportunities provided by the Digital Paradigm. It is unfortunate that content has not, until recently, been made available world-wide. This belated recognition now means that popular TV shows in the US are available within 24 hours of broadcast in the US – shows like “The Walking Dead”, “Arrow” “The Blacklist” and “Game of Thrones” come to mind. And what drove this? Piracy and content sharing. The content owners were reactive rather than proactive. And one can only wonder how long it will be before content owners wake up to the global market and get rid of this ridiculous hangover of region coding and market segmentation. It may have been understandable before the Internet Revolution. It has little if any relevance now.

But perhaps content owners prefer to adopt the well-known quote from Jean-Baptist Alphonse Karr – “plus ca change, plus c’est la meme chose.”

Interesting Times

I recently read an entertaining book. It was entitled “History Play”, written by Rodney Bolt. It had an interesting argument. Christopher Marlowe did not die in the tavern brawl in Deptford. In fact he staged his own death so that he could “disappear” and in the following years travelled extensively around the Continent and to the New World. And how do  we know this? There are two sources of evidence. The plays attributed to an ambitious but talentless playwright by the name of William Shakespeare which were in fact written by Marlowe, and from a number of “recently discovered” documentary sources that give us possible links to Marlowe’s activities both before and after the “Deptford Incident”. I should say at the outset that the book should not be taken seriously, at least for the argument it advances. But there are other issues that arise that underlie Bolt’s very entertaining and, at times, erudite piece.

The plays, according to Bolt, contain all sorts of minor clues that nestle in the detail of speeches or actions that could only have come from an intimate acquaintance with the subject matter possessed by Marlowe but not by Shakespeare. For example, Marlowe visited his grandparents in Dover and would have been familiar with the view from the cliffs described in King Lear IV vi 11 – 23. In addition there are phrasing similarities that appear in Marlowe’s plays that are duplicated in “Shakespeare”. Marlowe, according to Bolt, travelled widely on the Continent during and after his time as a student at Cambridge. The observations of those he met appear in his plays . The detail of military fortifications described in 2 Tamburlaine are almost verbatim from a military manual written by one Paul Ives, but which was not printed until 1589, thus precluding the possibility of plagiarism. The detail of Danish drinking habits could have been acquired by Marlowe on a visit to Elsinore and are recorded in Hamlet V ii 267-70.

But perhaps most interesting of the sources which provide the evidence are the written and printed materials that have been located in archives or recently discovered collections that connect Marlowe with others after his “death” or which provide background or context for what he wrote either as Marlowe or Shakespeare. It is not for me to question these “sources” although I should note that they do not appear in the bibliography and some of the manuscript sources come only from “private collections” and therefore are incapable of independent verification. What is important is that printed, written or transcribed sources provide valuable and,at times, critical evidence for the historian.

And this leads me to the point of this post. How will the historians of tomorrow fare when most, if not all, of the “documentary” evidence is in digital form, dispersed across cloud servers or retained in locally located hard drives. Will there be a digital equivalent of the Harley, Cotton or Sloane collections of manuscripts held by the British Library that have provided a vital resource for historians. In passing I should note that the British Library is digitising some of its manuscript collection and in my own researches into the early history of legal printing I was aided by Chadwyck-Healey’s invaluable Early English Books Online.

But will there be a modern equivalent of Robert and Edward Harley or Robert Cotton or Hans Sloane, gathering together the digital documents and manuscripts and retaining them for posterity? Are there individuals, even now, salvaging the discarded hard drives and other storage devices against the day when they will provide invaluable evidence for historians? And if so, how and where will these be located. Will the historian, with access to a private library of hard drives serendipitously uncover the trove on information that he or she need to complete the picture?

Of course, the future historian, once the digital archive has been located, should have little difficulty locating the information needed. The use of what lawyers recognise as e-discovery tools will assist in processing and locating the relevant information. The only problem of course is that the future historian will have to have some skill in the use of such tools – unless he or she wishes to pay a highly skilled “e-discovery” analyst.

It may well be that such digital treasure troves will be seen as highly authentic sources. What of the “archived web” do I hear you say? This assumes that the capacity of web archives in the various libraries and on-line archives contain a comprehensive dataset. And the next question is whether that dataset is sufficiently complete. The rise of the so-called “right to be forgotten” will compromise web archives significantly and may well relegate them the the status of secondary authority for digital historians.

“May you live in interesting times” is, I understand, a form of curse. The question is whether, with an absence of stable source material, historians of the future will be able to ascertain if the twenty-first century was an interesting time at all.

The Hobbit – Thorin’s Tragedy

The long awaited final instalment of “The Hobbit” trilogy has hit the screens along with the expected fanfare, marketing tie-ins and the like. So what is the movie like. In two words, very good. But in fact there are realms that are explored in the movie that, although alluded to in the book, are further developed by Jackson and his creative team.

The first point that should be made is that the hobbit of the title – Bilbo Baggins – is something of a bit player on a much wider and more dramatic canvas. In fact if we were to look at the main story line it is about the tragedy of Thorin Oakenshield and tragedy it is – of almost Euripidean proportions.

Tragedy is an examination of the doom of man and his shortcomings. The form was first developed by the Greeks and even today, from a distance of two and a half thousand years, the Greek realisation of the formula is still seen as the epitome of tragedy, a formula from which there has been little departure over the ages. But the tragic-form has not been the exclusive property of the ancient Greeks. The tragic awareness occurs in the literature of many peoples and is demonstrated in many of the heroic sagas, such as the Edda, the Icelandic sagas, the Kalevala, even to the soul-searching tragic realisation of Sir Gawain in his second encounter with the Green Knight. The tragic awareness in the heroic sagas is demonstrated by a conquering glorious hero, possessed of skill in
arms and special weaponry, engaging in great and important acts. Yet “he appears against the sombre background of inevitable death, a death which will tear him away from his joys and plunge him into nothingness; or, a fate no better, into a mouldering world of shadows”. (Albin Lesky, Greek Tragedy 1978) The tragic man (or tragic hero) carries within himself the seeds of his own downfall.
His humanity, at times a blessing and a virtue, can be a curse. His good acts are magnified, demonstrating him as the epitome of the potential goodness in man. His failings are enlarged, heightening the contrast and making his fall that much more poignant. And fall he must, for fall is the essence of tragedy. And the tragedy is that one so demonstrably noble and so potentially great must fall, not as a result of external influences, but as a result of the failings or shortcomings of the man within. It is, however, impossible to devise a short formula or definition for tragedy. This has been recognised by all who attempt so formidable a task. The best that one can do is point out the essential ingredients of tragedy.

As a result of certain actions by one of the protagonists of the tragedy, who may even be the tragic hero, the balance of the various conflicting forces of nature has been upset. The forces of nature represent order and harmony. The upsetting of the natural order results in chaos. The resolution of the conflict must be the restoration of order. Consequently in tragic drama, the murder of a King, or an incestuous relationship, or usurpation, or an abandonment of filial duty are all seen as actions contrary to an established order of things. The tragic hero may be responsible for upsetting the order or he may be the character through whom order must be re-established, but who, at the same time, may have to be sacrificed that the balance may be restored.

Tragedy is often presented to us in the tales of the heroes. The protagonists are frequently kings, statesmen, princes or warriors of great renown which makes more poignant the depth of their fall. Macbeth, formerly a doughty warrior and faithful subject, recognises the depth of his own fall with the words:

I am in blood
Stepped in so far, that should I wade no more,
Returning were as tedious as go o’er

But the tragedy must mean something to us, the audience or readers. The fall of the tragic hero must affect us, come close to us, have meaning for us, become something that we recognise and which must have relevance. The tragedy must be something to which we can react and which affects us emotionally. This is what is known as catharsis. To make the tragedy even more meaningful, the tragic hero must be fully aware of his situation. He must suffer, know that he is suffering and know why he is suffering. He cannot complain by asking, ‘Why must all these things happen to me?’ He is master of himself and of his fortunes and misfortunes. He may berate himself for committing a certain act which led to a certain consequence, but he cannot question why the consequence has befallen him. Of course, in tragedy there can be only one end for the character who has captured our imagination by his nobility and has heightened our dismay by his fall, and that is death. By his death, the tragic hero returns the balance to nature, whether he was responsible for the upset or not. His death is the final action in a number of actions that he must undertake to dispel disorder.

A further element of tragedy is that it deals with an essential ingredient of the human condition in that it inevitably raises questions of a moral nature. It need not be a purely moral failure which causes the tragic fall. The tragic hero must fall into moral error which contributes to his fall. As a consequence of this the tragic hero, like Oedipus, must carry with him a moral guilt. The tragic hero suffers both the external consequences of his fall and an awareness of his downfall and of the events which led to it.

Thorin’s objective is to restore the balance that was upset when his grandfather Thror fell under the spell of the Arkenstone and when Smaug expelled the Dwarves from the Lonely Mountain. As is the case in so many “hero quests” Thorin undergoes a period of wandering until the “chance meeting” (see “Unfinished Tales”) sets him on the Quest of Erebor. “Unfinished Tales” informs us of Gandalf’s hidden agenda – eliminate the dragon as a potential ally of the Evil One – but Thorin takes the opportunity to re-establish the Dwarvish kingdom under the Mountain.

In the book and in the movie Thorin is portrayed as a mercurial character, stubborn and one who does not tolerate being crossed. Once he has made his mind up, he will rarely shift, and these shortcomings become manifest once the Dwarves resume occupation of the Lonely Mountain. Thorin’s obsession with regaining his kingdom becomes an obsession to recover the Arkenstone and to gather together and protect the great horde of treasure that lies within the halls of the Mountain. Thorin’s obsession becomes destructive. The assumption of the crown of the Dwarves becomes symbolic of his fall, for he becomes an autocrat. His intolerance of any opinion other than his own, his gathering obsessions and his single-minded stubborness to acquire the Akenstone at any cost leaves Bilbo in a quandry, for, as we know, Bilbo has the great jewel. Bilbo sees Thorin’s fall and is unwilling to give him the Arkenstone. Perhaps he sees that possession of the gem will only magnify the nature of the decline. And so it is for, once he is aware of Bilbo’s treachery – so it is in Thorin’s eyes – he ignores the fact that it was through Bilbo’s efforts that they got into the Mountain – and he declares him anathema. He will tolerate no difference even from his loyal Dwarvish followers. Their consternation becomes clear. And so it is, as the armies gather and the negotiations and parleys fail, that Thorin isolates himself behind walls of stone.

Yet it is this final isolation that Thorin obtains insight. In a wonderful scene in the Dwarvish hall where Smaug was drowned in gold, Thorin realises what he has become. The scene is beautifully realised and could well become a classic of the tragic hero’s understanding of the nature of fall.

Thorin has a chance to redeem himself and does so. The crown which he assumed and which symbolised his fall is cast aside. He is a Dwarvish prince, now coming to the aid of his fellows, leading his followers in a last desperate sally forth to confront the age-old enemy. It is in the chapter “The Clouds Burst” that “The Hobbit” becomes a saga in the grand style. Tolkien’s language and style becomes that of the saga signers and chroniclers of old.

Part of the wall, moved by levers, fell outward with a crash into the pool. Out leapt the King under the Mountain, and his companions followed him. Hood and cloak were gone; they were in shining armour, and red light leapt from their eyes. In the gloom, the great dwarf gleamed like gold in a dying fire…..”To me! To me! Elves and Men! To me! O my kinsfolk” he cried and his voice shook like a horn in the valley”

Stirring stuff and wonderfully realised as Thorin returns to expunge the stain of his fall. But die he must and he does at the hands of the Orc Azog in a to and fro duel on a frozen mountain river. But, as is the case in the book, Thorin does one last act before he passes. He reconciles with Bilbo. The circle is complete. The tragic hero has rebalanced the ledger.

And that was it. And that was disappointing because Jackson could have done one last thing to redeem the tragic hero, Thorin. It is in the book and it may be in an extended DVD version when that is finally released. The scene is this:

“They buried Thorin deep beneath the Mountain, and Bard laid the Arkenstone upon his breast.

“There let it lie till the Mountain falls!” he said. “May it bring good fortune to all his folk that dwell here after!”

Upon his tomb the Elvenking then laid Orcrist, the elvish sword that had been taken from Thorin in captivity. It is said in songs that it gleamed ever in the dark if foes approached, and the fortress of the dwarves could not be taken by surprise.”

Another aspect of the movie which Jackson deals with, which is not a part of the book and references to which are made in “The Silmarillion”, “Unfinished Tales” and other collected works is the conflict between the White Council and the Necromancer at Dol Guldur. Although there are only hints in the various texts, Jackson develops the conflict and in doing so develops the character of Galadriel as one of the few beings able to confront the pure evil that is Sauron. The members of the White Council – Galadriel, Elrond, and Saruman arrive at Dol Guldur to liberate Gandalf and confront the Nine Ringwraiths – the mortal men doomed to die of the Ring verse. It is not clear – at least from a first viewing – whether the confrontation escalates through the Ringwraiths, who are dispersed, to Lord of the Nine or to Sauron himself. I believe that it was the Dark Lord himself – not at the full measure of his power – who was challenged by Galadriel. In this challenge Jackson draws upon Tolkien’s writings to present a true High Elven Queen. In the Lord of the Rings (The Fellowship of the Ring, Many Meetings), Gandalf refers to the High Elves – “the Elven-wise, lords of the Eldar from beyond the furthest seas. They do not fear the Ringwraiths, for those who have dwelt in the Blessed Realm live at once in both worlds, and against the Seen and Unseen they have great power.”

Frodo then says that he saw a white figure that shone and did not grow dim like the others, asking whether or not that was Glorfindel. Galdalf replies:

“Yes you saw him for a moment as he is on the other side: One of the mighty of the First-born. He is an Elf-lord of a house of princes.”

And thus is Galadriel portrayed, in her full power as a Noldorian princess. Yet there is another element, for it must be remembered that Galadriel is the holder of one of the three Rings for the Elevn Kings under the sky, Nenya, the Ring of Adamant. In the conflict with Sauron, it is Galadriel who confronts the Dark Lord and Jackson visualises this in that eathereal half-world into  which Frodo and Bilbo venture when they don the Ring. Which leads one to wonder whether or not Jackson envisaged Galadriel as using the power of one of the Elven Rings in the battle at Dol Guldur. We know, from what she says in Lord of the Rings, that she contests with Sauron – “I say to you, Frodo, that even as I speak to you, I perceive the Dark Lord and know his mind, or all of his mind that concerns the Elves. And he gropes ever to see me and my thought. But the door is closed.”

As a whole, the film works. There has been criticism of the 40 plus minute battle scene but that is an ill-informed and inaccurate criticism, for the conflict varies between armies and individuals – between Thranduil and the orcs in Erebor, Thorin and Azog on the frozen river, Legolas and Bolg in the mountains in the midst of mouldering masonry, and then the vast sweep of the main battle before the gates of the Mountian. There were times when I thought I was seeing a re-run of the Siege of Gondor and the Battle of the Pelennor Fields and the sally forth of Thorin from the Mountain was rather similar to the ride of the tragic hero Theoden – but without the rousing:

Arise, arise, Riders of Theoden

Fell deeds awake: fire and slaughter

spear shall be shaken, shield be splintered

a sword day, a red day, ere the sun rises!

Ride now; ride now! Ride to Gondor!

And at the end, the circle, like a Ring, is closed, for the film closes with the opening of The Lord of the Rings: The Fellowship of the Ring.

It is well done.

Digital Property and Computer Crimes – Collisions in the Digital Paradigm IVA

The Court of Appeal decision in Watchorn v R [2014] NZCA 493 was another case involving property in digital data.  The accused had been convicted on three charges alleging breaches of s 249 of the Crimes Act in that he had access to his employers computer system and dishonestly or by deception and without claim of right obtain property.

Mr Watchorn was an employee of TAG, an oil and gas exploration company, which was engaged in both prospecting and the production of oil and gas.  There was no question that on the 7th June 2012 Mr Watchorn downloaded extensive and sensitive geoscience data from TAG’s computer system onto a portable hard drive.  An executive of TAG described the geoscience folder as holding the “secret recipe” because it contained data relating to the discovery of sites of oil and gas.  The information had a very high value to TAG. Had it been disclosed to a competitor it would have been extremely damaging to the company and beneficial to that competitor.

On the day after the download took place Mr Watchorn and his family went to Canada for four weeks so that he could visit his mother who was ill.  Whilst he was in Canada he met a representative from a company called New Zealand Energy Corporation Limited (NZEC) based in Canada but which carries on business in New Zealand. NZEC is a competitor of TAG.  Following this meeting Mr Watchorn was offered a job with NZEC.

On 31 July 2012 Mr Watchorn down loaded similar TAG information to that which he had downloaded on the 7th June and downloaded it on to a USB memory stick.  On the same day he gave notice of his intention to resign from TAG and commence employment with NZEC.

TAG was very concerned about material being downloaded from its computer system and the day after Mr Watchorn gave notice, TAG’s solicitors sent a letter to Mr Watchorn reminding him of his obligations for confidentiality and inviting him to return an apparently missing hard drive.

Mr Watchorn responding by stating that the only thing he had on his personal hard drive was relating to some of the things that he had helped put in place as well as technical data and work from previous employment.

On 28 August 2012 the police executed search warrants including one at the premises of NZEC.  Mr Watchorn was initially interviewed by the police, then re-interviewed on the 7th December 2012 and arrested.  There was some disparity between the various explanations that Mr Watchorn had given to the police relating to whether or not he had taken the portable hard drive with him to Canada.  However there was no evidence indicating any disclosure of information to NZEC while Mr Watchorn was in Canada, when he later accessed the down loaded material at NZEC’s premises or at any other time.  In fact the evidence was that the data down loaded on the 7th June was not disclosed at any time to any person.

The Court of Appeal noted its decision in Dixon v R where it was held that digital CCTV footage stored on a computer was not “property” as defined in the Crimes Act and so the obtaining of such data by accessing a computer system could not amount to “obtaining property” within the meaning of s 249(1)(a) of the Crimes Act.  The Court accepted that that analysis must apply to the kind of data obtained by Mr Watchorn and observed that it was bound to follow Dixon.  However the issue was whether or not the Court would follow the approach adopted in Dixon and substitute convictions based upon an alternative charge of obtaining a benefit.

The first thing the Court did was to consider whether or not there had to be a “dishonest purpose” for obtaining a benefit.  Despite the fact that the heading to s 249 states “accessing the computer system for dishonest purpose” the Court held that that was not an accurate summary of the offence itself.  It observed that the ingredients of s 249(1) do not include a dishonest purpose.  What the Crown must prove is that the accused “accessed a computer system and thereby dishonestly or by deception or and without claim of right obtained a benefit.”  In light of the definition of “dishonestly” in s 217 of the Crimes Act all the Crown had to prove was that Mr Watchorn did not have TAG’s authorisation to down load the data that he down loaded to his hard drive on the 7th June.

“Dishonestly” in s 217 states “In relation to an act or omission means done or omitted without a belief that there was express or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority”.

 The Supreme Court in R v Hayes [2008] 2 NZLR 321; [2008] NZSC 3 stated that dishonestly requires an absence of belief that there was consent or authority and that it is not necessary to prove that the belief was reasonable.

The Court of Appeal observed that if Mr Watchorn actually believed he was authorised to download the data then the element of “dishonestly obtaining” that data would not be proven.  Whether he downloaded the data for the purpose of taking it with him to Canada or alternatively to make a backup actually did not address the question as to whether he believed he was authorised to do it.  The evidence before the Court was that the TAG Executives said that Mr Watchorn had no authority implied or otherwise to take TAG geoscience data or the material contained with the TAG drilling and TAG electronic site and well files.  Mr Watchorn’s claim that he thought that he was authorised to download the files and take them to Canada was contrary to his version of events when interviewed by the police.

The Court then went on to consider the issue of “claim of right”, differentiating the concepts of “dishonesty” and “claim of right” by noting that dishonesty addresses whether Mr Watchorn believed he was authorised to download the data.  Claim of right addressed whether or not he believed even if he wasn’t authorised that downloading was permissible.  Mr Watchorn argued that he had a defence of claim of right because he believed there was an industry wide practice in the oil and gas field of employees transferring from one firm to another downloading data relevant to the employees work before leaving the employ of the owner of the data.  There was no evidence in Watchorn’s case that implied entitlement did exist and no evidence that Mr Watchorn believed that it did.  The fact that he had downloaded data from previous employers did not provide a proper foundation for a finding that he was lawfully entitled to do so.

After considering some other issues the Court went on to consider whether or not it should substitute the convictions against Mr Watchorn for convictions based on obtaining a benefit.  In Dixon the benefit had been the opportunity to sell a digital CCTV footage that had been obtained by accessing his employer’s computer.  In this case there was no evidence that Mr Watchorn had tried to sell the data but the issue was whether or not the word “benefit” was limited to a financial advantage or something wider.

The Court referred to a High Court decision of Police v Leroy  (HC Wellington CRI 2006-485-58, 12 October 2006 Gendall J) where a District Court Judge had held that the term benefit meant a benefit that could result in the advancement of a person’s material situation and was limited to a benefit of a financial nature.

Gendall J held otherwise.  He said that a non-monetary advantage may nevertheless comprise a benefit.  The advantage might be the acquisition of knowledge or information to which one was not otherwise entitled.  An advantage might be an invasion of another’s privacy.  It might be knowledge or information that could be used to exploit another person.  He gave the example of wrongful access of email communications of another for the advantage of disclosure or for use for political purposes or the purposes of embarrassment.  He held that information obtained might also be used for the benefit or advantage of a wrong doer enacting in such a way as to harass another in breach of the Harassment Act 1997 or be used to assist in the breach of a protection order under the Domestic Violence Act 1995.  It was noted that the words property, pecuniary advantage and valuable consideration relate to matters financial but the same is not necessarily true of benefit, privilege or service and the Court concluded that it was not necessary to confine the concept of benefit to financial benefits.

However that conclusion did not necessarily resolve Mr Watchorn’s case.  The Court considered the legislative history of the computer and other provisions of Part 10 of the Crimes Act 1961 in considering whether or not the scope of the word “benefit” was limited to a financial advantage and concluded that it did not.  However it concluded that the issue of what constituted a benefit in Watchorn’s case was more nuanced than that of Dixon.  The Court considered that it was arguable on the facts of Watchorn’s case that the advantage that he gained was his ability to access the data outside his work environment and without the supervision of his colleagues including after he had left the employment of TAG.  Indeed the Court said that it could be argued that he did not in fact exploit the advantage given to him by selling the data or making it available to his new employer.  It did not in fact reduce the ability that he had to do any of those things.

However the problem was that the Crown did not actually formulate the nature of the benefit that Mr Watchorn might have received.  The failure of articulating such a benefit meant that Mr Watchorn did not have any notice of that allegation that he could properly contest.  The Court held that he was entitled to such notice.  The Court considered that the evidence that could be adduced might include whether or not there was in fact any advantage to him in having possession or control of the data and because the prosecution had restricted its theory of the case to obtaining property the entitlement that Mr Watchorn had to prior notice of the benefit was not present.

The Court distinguished Watchorn from Dixon where in the latter case the Court was able to identify the benefit Mr Dixon hoped to obtain from the facts proven at trial.  Accordingly the Court was not prepared to substitute new verdicts and indeed the grounds for substituting such verdicts were not meet.

 Comment

This case is helpful because it demonstrates the importance of bringing a proper charge under the Computer Crimes sections of the Crimes Act.  The case of Police v Robb [2006] DCR 388 demonstrated the need for a prosecuting authority to exercise considerable care in drafting the charge that it brings.  In Robb the allegation arose pursuant to s 250(2)(a) of the Crimes Act in that it was contended that the accused deleted files the property of his employer without authorisation.  Part of the problem facing the Court was the mental element in the offence.  The Judge held that “deletion” in and of itself did not amount to damaging or interfering of the computer system contrary to s 250.  To establish a criminal offence of damaging or interfering with a computer system it was necessary to exclude innocent or accidental data deletion.  The Judge observed that wiping a file required an additional conscious decision over and above simple deletion.  Forensic evidence could not determine whether a file was deliberately deleted or not.

It is quite clear from both the decisions in Dixon and Watchorn that any charge suggesting the obtaining of property where what in fact has been obtained is digital material cannot be sustained and one of the alternatives in s. 249 must be considered.  For this reason the Court’s exposition of the nature of a benefit and the crystallisation of that benefit must be undertaken by a prosecuting authority.

However the final paragraph of the decision of the Court of Appeal in Watchorn is instructive.  The Court said “the decisions of this Court in Dixon and the present case have identified some drafting issues and inconsistencies in some Crimes Act provisions.  We respectfully suggest that consideration be given to remedial legislation.”

Obviously the question of the nature of any property in digital data must be considered but at the same time it must be carefully thought out.  Although it might be attractive for the definition of property simply to include digital data the problem that arises is that what amounts to copyright infringement within the digital space could well become a criminal offence and the presently incorrect adage advanced by copyright owners that “copyright infringement is theft” could well become a reality.

Technology for Better Fact Finding

This is a paper that I presented to the 14th International Criminal Law Congress in Melbourne on 11 October 2014. In brief it argues that new information technologies should be employed more widely in the Court system to enhance fact finding by juries and judges. It suggests that what are traditional means of evidence presentation, whilst still relevant, may be enhanced by technology use. In particular the paper questions whether the “confrontation right” requires physical presence and suggests that technology can allow virtual presence. It also points to new developments in 3D rendering and 3D printing which may enhance evidential integrity and improve presentation and consideration of evidence. The paper also questions whether some of the ritual aspects of the trial process enhance or impede proper and effective fact finding, or whether they have relevance to the primary function of the Court at all.

Facebook Friends on Appeal – Murray v Wishart

In an earlier post I discussed the decision of Courtney J in Wishart v Murray and dealt specifically with the issue of whether the “owner” of a Facebook page was the “publisher” of defamatory comments made on that page by third parties. The case was appealed to the Court of Appeal (Murray v Wishart [2014] NZCA 461). The judges unanimously held that a third party publisher – that is the owner of the Facebook page that contains comments by others – was not liable as publisher of those comments. They rejected the suggestion liability should attach because the owner of the page “ought to have known” that there was defamatory material, even if he or she was unaware of the actual content of the comment. The Court adopted a more restrictive approach, holding that the host of a Facebook page would only be liable as a publisher if there was actual knowledge of the comments and that there was a failure to remove them in a reasonable time in circumstances which could give rise to an inference that responsibility was being taken for the comments.

However, the approach of the Court, and its apparent recognition of some of the problems posed by the new Digital Paradigm, is of particular interest. In addition the decision leaves open other aspects of publication on platforms other than Facebook such as blogs.

The Background to the Case

Mr Wishart was the author of a book called Breaking Silence, about a woman named Macsyna King. Ms King collaborated with him on the book. Ms King was the mother of Chris and Cru Kahui, who were twins. They died at the age of three months in 2006 from non-accidental injuries. Their father, Chris Kahui, was charged with their murder but acquitted. During his trial, he suggested that Ms King had inflicted the fatal injuries. A subsequent coroner’s report found that the twins had died while in Mr Kahui’s sole care. Nevertheless, suggestions implicating Ms King retained some currency in the public arena. The trial of Chris Kahui for the murder of the twins generated considerable public interest.

Mr Murray learned of the impending publication of Mr Wishart’s book in June 2011. He established a Facebook page called “Boycott the Macsyna King book.”  He used his Twitter account to publicise the Facebook page. He posted comments on Twitter and on the Facebook page criticising both Mr Wishart and Ms King. Mrs Murray posted comments on the Facebook page, as did numerous other people.

Mr Wishart commenced proceedings for defamation. He alleged a number of instances but one cause of action related to a claim against Mr Murray in relation to third party statements made by persons posting comments on the Facebook page. This post will be restricted to the way in which the Court dealt with that cause of action.

In the High Court Mr. Murray applied to strike out this cause of action. He was unsuccessful for the extensive reasons and analysis given by Courtney J and discussed in an earlier post. Hence, he appealed.

The Approach of the Court

The Court started by considering the following test applied by Courtney J and articulated by her as follows:

Those who host Facebook pages or similar are not passive instruments or mere conduits of content posted on their Facebook page. They will [be] regarded as publishers of postings made by anonymous users in two circumstances. The first is if they know of the defamatory statement and fail to remove it within a reasonable time in circumstances that give rise to an inference that they are taking responsibility for it. A request by the person affected is not necessary. The second is where they do not know of the defamatory posting but ought, in the circumstances, to know that postings are being made that are likely to be defamatory. (Para 117)

This holding identified two tests – the “actual knowledge” test and the “ought to know” test. It was argued for Mr Murray that the actual knowledge test should be the only test for publication. As a first stet the Court considered how the Facebook page worked. This is an important and necessary first step in determining the proper application of existing rules. The Court said (at para 84)

An analysis of the positions taken by the parties requires a careful consideration of exactly what happened in relation to the Facebook page and on what basis it is pleaded that Mr Murray became the publisher of the statements made by third parties on the Facebook page. Although Courtney J described those posting messages on the Facebook page as “anonymous users”, that was not correct on the evidence. In fact, most of the users who posted allegedly defamatory statements identified themselves by name, are named in the statement of claim and could be traced by Mr Wishart if he wished to take action against them. So his action against Mr Murray is not the only potential avenue for redress available to him, though it was obviously more practical to sue Mr Murray for all the offending comments rather than sue many of those commenting for their respective comments.

The Court went on to discuss the way in which the page was set up and operated by Mr Murray. It noted that Courtney J had noted that Mr Murray not only could, but did, take frequent and active steps to remove postings that he considered defamatory or otherwise inappropriate, and also blocked particular individuals whose views he considered unacceptable. She found that he could not, therefore, be perceived as a “passive instrument”. Furthermore, Courtney J found that Mr Murray blocked Mr Wishart and his supporters from the Facebook page, which made it more difficult for Mr Wishart to identify and complain about potentially defamatory material. This impacted upon whether Mr Murray ought to have known of the defamatory postings.

The Use of Analogy

After considering the factual background to Courtney J’s finding, the Court went on to consider the legal path by which she reached her conclusion, her reliance upon the decision in Emmens v Pottle (1885) 16 QBD 354 (CA) and discussed at length the various decisions to which she referred. The Court then made the following significant comment  (para 99):

The analysis of the cases requires the Court to apply reasoning by strained analogy, because the old cases do not, of course, deal with publication on the internet. There is a question of the extent to which these analogies are helpful. However, we will consider the existing case law, bearing in mind that the old cases are concerned with starkly different facts.

The Court then went on to consider the factual background to a number of cases that had been discussed by Courtney J. (paras 100 – 123) and the decision in Oriental Press Group Ltd v Fevaworks Solutions Ltd [2013] HKCFA 47 which was decided after Courtney J’s decision. That case considered whether a host of an internet discussion forum is a publisher of defamatory statements posted by users of the forum. Although the main focus of the decision was on the availability of the innocent dissemination defence, the Court also considered whether the forum host was a publisher. It rejected the analogy with the notice board or graffiti cases, because in those cases the person posting or writing the defamatory comment was a trespasser. Since the forum host played an active role in encouraging and facilitating the postings on its forum, they were participants in the publication of postings by forum users and thus publishers.

The Court of Appeal then considered the various authorities that had been referred to by Courtney J and found that they provided limited guidance because the particular factual situation before the Court had to be the subject of focus. The reason for this was that the Court’s analysis of the authorities showed how sensitive the outcome may be to the particular circumstances of publication, and the fact that many of the authorities related to publication in one form or another on the internet did not provide any form of common theme, because of the different roles taken by the alleged publisher in each case.

The Court went on to examine the drawing of analogies , especially from authorities which did not involve the Internet. While noting that analogy is a helpful form of reasoning they may not be useful in particular cases. The Court observed that it was being asked to consider third party Facebook comments as analagous with:

  1. the posting of a notice on a notice board (or a wall on which notices can be affixed) without the knowledge of the owner of the notice board/wall;
  2. the writing of a defamatory statement on a wall of a building without the knowledge of the building owner;
  3. a defamatory comment made at a public meeting without the prior knowledge or subsequent endorsement or adoption by the organiser of the meeting

The Court then considered the circumstances in Emmens v Pottle which established that a party can be a publisher even if they did not know of the defamatory material. The holding in that case was that a news vendor who does not know of the defamatory statement in a paper he or she sells is a publisher, and must rely on the innocent dissemination defence to avoid liability.

The Court of Appeal considered that news vendor in Emmens v Pottle did not provide an apposite analogy with a Facebook page host. It observed that a news vendor is a publisher only because of the role taken in distributing the primary vehicle of publication, the newspaper itself. This contrasts with the host of a Facebook page which is providing the actual medium of publication, and whose role in the publication is completed before publication occurs. The Facebook page is in fact set up before any third party comments are posted.

So was the Facebook page more like the “notice on the wall” situation described in Byrne v Deane [1937] 1 KB 818 (CA)? This analogy was not perfect either. In Oriental Press Group the Court found that posting a notice on a wall on the facts in Byrne v Deane  was a breach of club rules and therefore amounted to a trespass. The Court of Appeal did not consider that the breach of the club rules was a factor affecting the outcome but rather that the club and its owners had not posted the defamatory notice and, until they became aware of it, were in no position to prevent or bring to an end the publication of the defamatory message. If a case arose where the defamatory message was posted on a community notice board on which postings were welcomed from anyone, the same analysis would apply. Furthermore, in Byrne v Deane the post was truly anonymous. There was no way by which the person posting the notice could be identified. In the case of the Facebook host, posting messages in response to an invitation to do so is lawful; and solicited by the host. Similarly, the Facebook host is not the only potential defendant whereas in Byrne v Deane, as has been observed, the poster of the notice could not be identified.

The Court also considered that drawing an analogy between a Facebook page and graffiti on a wall was also unhelpful. The owner of the wall on which the graffiti is written is not intending that the wall be used for posting messages. A Facebook host is.

One argument that had been advanced was that an analogy could be drawn with a public meeting – although there is a danger in equating the physical world with the virtual. It was argued that if Mr Murray had convened a public meeting on the subject of Mr Wishart’s book, Mr Murray would have been liable for his own statements at the meeting but not for those of others who spoke at the meeting, unless he adopted others’ statements himself. The court felt the analogy was useful because it incorporated a factor that neither of the other two analogies do: the fact that Mr Murray solicited third party comments about Mr Wishart’s book. In addition speakers at a public meeting could be identified (and sued) if they made defamatory statements just as many contributors to the Facebook page could be. However, the public meeting analogy is not a perfect one in that statements at a meeting would be oral and therefore ephemeral unlike the written comments on the Facebook page but it did illustrate a situation where even if a person incites defamation, he or she will not necessarily be liable for defamatory statements made by others. That is the case even if he or she ought to have known that defamatory comments could be made by those present at the meeting.

Problems with the “Ought to Know” Test

The Court then expressed its concerns about the “ought to know” test and Facebook hosts. First, an “ought to know” test put the host in a worse position than the “actual knowledge” test. In the “actual knowledge” situation the host has an opportunity to remove the content within a reasonable time and will not be a publisher if this is done. In the “ought to know” case publication commences the moment the comment is posted.

What happens when a Facebook page host who ought to know of a defamatory comment on the page actually becomes aware of the comment? On the “actual knowledge” test, he or she can avoid being a publisher by removing the comment in a reasonable time. But removal of the comment in a reasonable time after becoming aware of it will not avail him or her if, before becoming aware of the comment, he or she ought to have known about it, because on the “ought to know” test he or she is a publisher as soon as the comment is posted.

Another concern was that the “ought to know” test makes a Facebook page host liable on a strict liability basis, solely on the existence of the defamatory comment. Once the comment is posted the host cannot do anything to avoid being treated as a publisher.

A further concern involved the need to balance the right of freedom of expression affirmed in s 14 of the NZ Bill of Rights Act 1990 against the interests of a person whose reputation is damaged by another. The Court considered that the imposition of the “ought to know” test in relation to a Facebook page host gives undue preference to the latter over the former.

A fourth issue concerning the Court was that of the uncertainty of the test in its application. Given the widespread use of Facebook, it is desirable that the law defines the boundaries with clarity and in a manner that Facebook page hosts can regulate their activities to avoid unanticipated risk.

Finally the innocent dissemination test provided in s. 21 of the Defamation Act would be difficult to apply to a Facebook page host, because the language of the section and the defined terms used in it are all aimed at old media and appear to be inapplicable to internet publishers.

Thus the Court concluded that the actual knowledge test should be the only test to determine whether a Facebook page host is a publisher.

Thus the decision clarifies the position for Facebook page hosts and the test that should be applied in determining whether such an individual will be a publisher of third party comments. But there are deeper aspects to the case that are important in approaching cases involving new technologies and new communications technologies in particular.

The Deeper Aspects of the Case

The first is the recognition by the Court of the importance of understanding how the technology actually works. It is necessary to go below the “content layer” and look at the medium itself and how it operates within the various taxonomies of communication methods. In this regard, it is not possible to make generalisations about all communications protocols or applications that utilise the backbone that is the Internet.

Similarly it would be incorrect to refer to defamation by Facebook or using a blog or a Google snippet as “Internet defamation” because the only common factor that these application have is that they bolt on to and utilise the transport layer provided by the Internet. An example in the intellectual property field where an understanding of the technology behind Google adwords was critical to the case was Intercity Group (NZ) Limited v Nakedbus NZ Limited [2014] NZHC 124.. Thus, when confronted with a potentially defamatory communication on a blog, the Court will have to consider the way in which a blog works and also consider the particular blogging platform, for there may well be differences between platforms and their operation.

The second major aspect of the case – and a very important one for lawyers – is the care that must be employed in drawing analogies particularly with earlier communications paradigms. The Court did not entirely discount the use of analogy when dealing with communication applications utilising the Internet. However it is clear that the use of analogies must be approached with considerable care. The Digital Paradigm introduces new and different means of communication that often have no parallel with the earlier paradigm other than that a form of content is communicated. What needs to be considered is how  that content is communicated and the case demonstrates the danger of looking for parallels in earlier methods of communication. While a Facebook page may “look like” a noticeboard upon which “posts” are placed, or has a “wall” which may be susceptible to scrawling graffiti it is important not to be seduced by the language parallels of the earlier paradigm. A Facebook “page” or a “web page” are not pages at all. Neither have the physical properties of a “page”. It is in fact a mixture of coded electronic impulses rendered on a screen using a software and hardware interface. The word “page” is used because in the transition between paradigms we tend to use language that encodes our conceptual understanding of the way in which information is presented. A “website” is a convenient linguistic encoding for the complex way in which information is dispersed across a storage medium which may be accessible to a user. A website is not in fact a discrete physical space like a “building site”. It has no separate identifiable physical existence.

The use of comfortable encoding for paradigmatically different concepts; the resort often to a form of functional equivalence with an earlier paradigm means that we may be lured in considering other analogous equivalencies as we attempt to try to make rules which applied to an old paradigm fit into a new one.

The real deeper subtext to Murray v Wishart is that we must all be careful to avoid what appears to be the comfortable route and carefully examine and understand the reality of the technology before we start to determine the applicable rule.