In my opinion, one of the saddest things in a democracy is that powers with authority can change the rules after the game commenced. This is story with blocking of gambling sites, an experiment which began around 2010.

Fortunately, after a lot of hard work by the Israeli Internet Society, The District Court of Tel-Aviv quashed the block and ruled that the police had no authority to order Internet service providers to block access to certain sites or IP addresses (decision now on appeal, see the Hebrew original ruling at AA 45606-10-10 ISOC N. Shachar Ayalon).

However, Israel is famous for presenting bills that bypass constitutional rulings, and now wants to reassert this authority, without limitation, by presenting a new bill: The Bill for Restricting Uses for Preventing Crimes (Amendment – Restriction of Access to a Website and various revisions),2012 , (Google Translation).

1.
You can read a bit more about the bill at Oded Yaron’s article at Haaretz.com (behind a paywall). In general, the bill’s purpose is to circumvent the relevant court ruling and allow the police to block websites. In the district court ruling, the police’s authority to shut down gambling houses cannot apply to websites. However, the bill’s current wishes seem to be broader:

Had a certified police officer reasonable grounds for suspecting that the website is used to commit an offense specified in the Second Schedule [gambling, child pornography or copyright infringement - jk], and that there are reasonable grounds for concern that the website will continue to be used for committing a crime unless access is restricted, he may issue a warrant for Internet Service Providers to limit the access to that Web site; a warrant under this section may be issued even if the website also contains activity which is considered legal [or legitimate - jk] provided that the illegitimate activity is the main purpose of the website.

Now, as befits any modern legislation, justice it made but us not seen. Article 3 of the bill discusses execution of additional warrants, where everything shall be made ex-parte:

“material relating to the request to extend the validity of an administrative restriction or information based on which such request and any other material provided subject of the application process will be made to the judge only; material will be marked and returned to the police officer or authorized claimant (in this section the applicant) after examining “

But it’s not just that material will be ex-parte; in some cases, the ruling itself may be withheld from the appellant. “The court shall notify the owner or occupier and the police officer on its decisionunder this section, and it may determine that the decision, or parts of it, shall be confidential“.

2.
This means Israeli that citizens may find themselves in a situation where they are subject to a warrant which is confidential. In such case, They will not be able to challenge such an order, because the grounds for the decision will unlisted . Sounds interesting? Well, I remind you that when we discussed that Communication Metadata Law, which allows police to receive GPS data on phone and Internet subscribers and records of their phone calls, everything was made in confidential decisions (with no further judicial review on them). Therefore, do not know how the law is implemented, how these requests really served illegally, and how judicial review works.

3.
The bill itself is absurd if you understand the Internet: everybody knows that no matter what order blocking a given Web site, its validity is about as much as an order of Police fires in summer temperature does not exceed 25 degrees Celsius (or if you’re in the US, that it won’t snow on Christmas). I mean, okay, ISPs will restrict users from browsing, but that’s not actually something that works (proxy servers et all).

4.
But of course there’s the issue of the slippery slope. The original act, which is to be amended by the bill, gave a judge the authority to issue a warrant under careful review; however, the bill conveys this authority to a police officers.

5.
What about additional uses? Well, in order to pass the bill, the police began with abhorrent offenses considered: child pornography and gambling. Clearly, no one will oppose the authority to block such websites if he’s not a pedophile or a gambler. Well, not really. That’s why the phrase “Second Schedule” is used to described to offenses that are subject to this authority, in fact the bill asserts a short list of offenses, where the minister of justice can always add additional offenses. Once the bill is passed, no one can be certain that no additional offenses will enter there.

6.
The real danger here is practice: in the same week where we discovered that the military police apparently investigated a blogger which was exposed using the metadata act without respecting his journalistic immunity and confidentiality of sources, and on the same week as the non-democratic nations want to rule the internet through the ITU convention, Israel decides to publish this bill. And why? because Israel deems it ok to gamble all your money is the state lottery, but not right when you give money to foreign websites.

1.
Israel is known for times where its legal system falls victim to political constraints from left to right, and just in not the higher courts, but the magistrate courts as well. Sometimes, indictments are colored more politically than usual, and are attached with circumstances that cannot allow acquittal. The stories of Jonathan Pollack, who was convicted for riding his bicycle slowly in a demonstration against the Cast Lead Operation and was sentenced for three months in prison, and of Rahamim Nasimi who blocked a road during anti-disengagement protests and received the same penalty show that there’s a problem in the method. The problem is that not once demonstrations are meant to disrupt the public order, offend, hurt and show the government that there is criticism and it’s not nice: but these have to be the rules of the game. Protesters are allowed to be rude, disgusting and violate the public order : The police, on the other hand, cannot be brutal and it has to respect the political expression, since if it will not do so, we will live in the “Ok State”.

2.
And that’s the case of Pussy Riot; a Russian feminist band that decided sometime in February to organize and demonstrate in a spontaneous way to protest against Putin. During the last weekend, three members were sentenced to two years in prison after being charged with harming the public order with religious circumstances; of course, that there was not relation to the content of the expression, but to the deed itself: the members of Pussy Riot organized in a public place, offended the public, and tried to protest against the current situation. If they had protested where they are allowed to, in their homes, then no one will have heard about Pussy Riot.

3.
It is quite doubtful that this could be perceived as a just trial, even though the Russian public supports it; but that is the case: when the political hooligans are indicted, the content of the speech is not mentioned, and therefore not discussed in court. They say “he was a hooligan, and we don’t care if it’s left or right, if it was a toothpaste advertisement or a protest against a mayor. What offends us is the breaking of the public order”. In this case, you cannot put up a defense that says “look at the content and not the form”, because the content is indisputable. So, the architecture of the trial prevents justice.

4.
In this is how Israel is so close to Putin’s dictatorship: even here there is hard work to limit the protest; and of course it’s not political at all: a simple policy of requiring a license for every activity of public expression is perceived by the court as a way to preserve public order (AA 6095-07-12 Hatzav v. Tel-Aviv). It’s not just a saying: the Tel-Aviv municipality issued an administrative order stating that “festivities and any other activity to express an idea, opinion, value, demonstration, meeting, ceremony, solidarity, fund raising, belief or world view – which is not made in cooperation with the municipality”
has to obtain its consent. Meaning that if I sat down with a friend in Rotschild boulevard to discuss my opinion about the country’s financial status or the street’s garbage, I have to approach the municipality’s CEO, fill out the proper forms and obtain a permit.

These procedures are not only unlawful, but they make Putin ovulate from joy. the resemblance, the inspiration, maybe he should receive royalties for it.

5.
And in the meantime? Israel does not have a local Pussy Riot. And maybe its for the better; their music is not so soothing. But until we have one, we all have to admire King Bibi.

[Originally In Hebrew]

[This Wednesday I shall lecture at the LiSS working group conference, here is a draft of my lecture] From 2003, and until today, the Israeli Government has been working diligently in order to legislate the biometric database act and the orders and ordinances according to it. However, This biometric database is not the only biometric database in Israel and is not the only database where government authorities have access to. In my brief lecture, I shall present a different approach, asking whether this database act was actually required and what are the reasons for choosing a legislative act when doing so. When doing so, I’ll have to ask whether the act of legislation was needed because the social contract was broken, or because it was a megalomaniac act made out in will to block any different approach to databases.

1. Database Laws, Privacy.

Let’s first understand how government databases operate. The Israeli Privacy Protection Act does not differentiate public sector databases from private sector ones; moreover, article 23D provides any person the right to know about such database and article 23C provides government bodies the right to request and transfer data from other databases when the action is required by law or by the body’s function. Meaning, if it was it’s desire, the Government could have set up a registered database and operated the biometric database out of such act; but in such case, it couldn’t have mandated the people to provide their biometric information.

So what could it do? It could have amended the Census Act. The Israeli Census Act is the act regulating the management of the Israeli Census (which, as we already know, was leaked to the Internet); article 2 writes down the fields in the database that are required to be listed. In such case, amending and mandating a person’s biometric data under it could have solved the biometric database problem in a 1-line amendment, without requiring massive legislation.

However, The Israeli legislator decided to pass a 30 page long act (PDF), which describes in full the security and use in detail, and allow public debate over it. In order to understand why, let’s understand how other government databases work.

2. Government Databases and legislation.

First let’s see what are the databases which were legislated and which weren’t; Meir Sheetrit, the biometric database’s entrepreneur, said that “Israel has enough [other] biometric databases“. However, if we inspect his claims, we find out a different perspective; the one who says who and when is required to provide his information willfully to the database.

Let’s first inspect what are the databases that were legislated under the Israeli Law: The Israeli Anti-Money Laundering Act, The Israeli Census Act (which actually does not establish a database, but only allows the inquiry of information), The Police DNA Database (The Criminal Procedure Act (Searching in a person’s body and taking of identifying information)), Criminal Records (The Criminal Record Act).

On the other hand, there are quite a lot of databases which contain information which is as personal and as sensitive as the legislated databases, including the migrant workers biometric database, the driver’s license database which includes photographs and according to the Israeli transportation office, does not require legislation in order to retain a database (where the transportation office provides this biometric information at least to the ministry of interior), the unemployed database, which contains fingerprints of unemployed and  the Bus Authority database that contains information regarding passengers and their routes.

3. Why do you legislate databases?

We can see that while some databases were legislated because of their sensitive nature (money laundering, f.e), there is no actual difference between the sensitivity; There is no actual difference between money laundering information or the biometrics of a migrant worker. We can also say that legislation did not come because of the voluntary nature of the database; a person cannot choose to be unemployed or not to travel by car or bus. None of the non-legislated databases are actually voluntary; they just address specific needs and puts the person “agreeing” to provide the information in an inferior place: he is either unemployed, or he wishes to travel to Israeli to work, he may want to drive in Israel or take a bus. These are all daily functions that a person cannot go without.

4. Why Legislation.

Now, let’s go to the theoretical assumption that legislating the biometric database could have been made without any real or substantial legislation; It could have actually just establish a national database by issuing an order of the Passport Act, seeing that most Israelies have a passport, and hold the information in a way that is “required” to issue a passport; he could have went in the same way the Transportation Office went, and required just the issuance of fingerprints. However, the choice to legislate the database was taken. And why?

The reason is the Israeli Privacy Protection Act, but not the article requiring willful consent, nor the article mandating informing the data subject on its rights, but because of article 23C. Let’s inspect the text:

“Notwithstanding article 23b, providing the information is permitted, if not prohibited by any legislation or professional ethics – (1) between public bodies, if one of the following exists (a) providing the information is in the authority or role of the body who provides the data and it is required to exercise a law or a cause by the authority of the data provider or its recipient; (b) providing the database is to a public body who is allowed to demand such information according to law from any other source; (2) from a public body to a government office or another state establishment, or between offices or bodies as such, if the providing of information is required to exercise any legislation or for a purpose in the authority or roles of the data provider or its recipient …”

Well, we do need to read this carefully: There could have been a state-wide database without legislation;  however, in such case the Police could not have been granted access to the information. And why? because neither article 23b(a)(i) nor article 23b(a)(ii) allow it: The first alternative requires specific authorization under law to disclose the information and the second requires that the police would have been authorized to request the information at source. However, the police are not entitled to coerce a person to give them his biometric information, and the ministry of interior [was] not authorized to specifically assist the police.

Therefore, unlike other databases, the mobility of the information and the detachment between the cause of why it was collected and its use brought the actual need for legislation.

5. Ruling out other factors.

Now, we can inquire about the question of whether this was actually the reason; whether there was a secret hand that required it. The only reason to explain why a 30-page long bill was passed was explained when alternatives were presented to the government. The rejection of the Adi Shamir proposal, for a non-identifiable database, and the choice to store both a person’s facial photo and fingerprint (where such information is not required to maintain a clean database, see Yoram Oren’s statement “if the purpose is to reduce a list, then yes“). Meaning, the legislator was presented with at least two alternatives that allow a secure database that does not allow double-inclusion and does not retain so much sensitive data, but rejected it.

Such rejection may be discussed later in courts when inquiring about the constitutionality of the act, but that’ out of the point. The choice of both legislating and deciding on this architecture was made solely in order to allow surveillance.

6. Summary and Conclusions.

We know that the legislator had other options to legislate a database (or not to legislate it); and that it could have allowed it to be used quicker, without any pilot and even with the coercion against the persons, but in such case, the police and other security authorities could not have obtained access to the database. Therefore, the sole purpose of addressing legislation is in order to allow such access, and unless we can rule this out, this is the true purpose of the database.

Google AdWords lawsuits were a big issue in the past (where the most famous was Government Employees Insurance Co. v. Google, Inc., No. 1:04cv507, see more at Eric Goldman’s blog). In Israel, however, there was one material ruling, OP 506/06 Matim Li v. Crazy Line, where the Israeli District Court of Tel-Aviv ruled that as long as the ad itself is not misleading, there is no problem with purchasing ads using someone’s tradename. But here the court needs to explain why he deviated from this decision, so he ruled that “These are keywords which contain a personal name, and not a trademark, and therefore you cannot say that in regards to this name the internet is an advertising space similar to others. So it would be adequate to rule that in regards that without the personal name’s holder’s permission, the name shall not be used for advertising”

The court goes with the infamous publicity rights and determines that when the use use is of someone’s personal name, and not a trade name, then the use has to be with permission of its “owners“. However, here already stands a first problem in regards to publicity rights. Dr. Klein is a celebrity, and as such he has not right for privacy (in regards to publicity rights). Israeli courts ruled that when a person uses his name for trade, he cannot later state that he does not want others to rely on such business name. In a recent case, the court ruled that “the right for privacy is a right that protects the emotional-personal interest of a person, his autonomy and his private matters, but not his financial interests” (C 534-08 Hava Koren v. Shai Cohen). Meaning, the rationale behind publicity rights apply where a person does not wish to be known publicly and is coerced to do so, not where he is already known.

The second problem here is where is the border between a person’s name and a trade name. Is Ford protected under this ruling, being the surname of Henry Ford? This is the incoherence that later calls of over-litigation and pays the lawyer’s retainer is bad lawsuits. If the court had a reasonable rationale, it had to provide it in a detailed manner, even if it means writing 50 pages instead of 14.

Now, after having said that, the real problem arises. As the court did not provide reasoning for its ruling, it did not explain where Google’s active involvement that provides incurring liability on it. That’s why Google did not know, and was not expected to know, about the existence of a person named Dr. Klein and that he does not want others to use his name. The court here goes against any other service provider liability case in Israe (C 567-08-09 ALIS v. Rotter, C 1559/05 Hemda Gilad v. Netvision, C 64045/04 Al Hashulchan v. Ort).

The fact that the court did not provide reasoning to its ruling is a problem. It does not let us understand why it decided that Google is liable and does not let us understand the issue. We have to wait and see whether Google appeals this.

[Originally in Hebrew]

The court recognized that notice and takedown is the correct way to handle user generated content and ruled that Rotter is not liable for any user generated content as long as it removes the infringing content promptly. By ruling this way, the court created the so requested connection between the recent Supreme Court ruling in CA 5977/07 Hebrew University v. Schoken (which dealt with the university’s liability for coursebooks distributed by students creating infringing content) and the virtual world (and in regards to notice and takedown under Israeli law, see RCA 1700/10 Avi Roy Dubitzky v. Liav Shapira, C 1559-/05 Hemda Gilad v. Netvision and C 64054/04 Al Hashulchan v. Ort).

However, the main issue with notice and takedown was the amount of actual knowledge the court required: The court determined that it is not enough that Rotter is reported that a specific forum has infringing content, but they have to have actual knowledge of any specific infringement. However, the court opened a latch for “bad forums”, meaning that a place where the service provider knew about a material amount of infringements it shall be liable to the forum’s activity. In the court’s words “the presumption is that the website’s owner is aware that he is assisting in the existence of direct infringements, and that such assistance is actual and material contribution to them. Therefore, the burden is on that website owner where a suspected forum exists to prove that the existence of the forum serves a legitimate purpose or that he was unaware of the infringing activity (and if so, he shall not be liable until he was notified that this is a “bad forum”“. Therefore, the court actually narrowed the service provider exemption from liability.

In the court’s opinion, “as a rule of thumb, we can determine that a closed forum, where in a specific time there are more than 10 links to infringing sites, and that the messages including links to infringing sites constitute more than a quarter of the substantial content of the forum (meaning, messages that are not information requests or responses to other messages), should be suspected as a “bad forum”“. Meaning, the court determines that a forum that has more than 10 infringing links, and when these links are more than a quarter of the content, even if the website owner had no actual knowledge, he may be liable. This ruling may be dangerous, and having being a district court one, we should put our fingers on the pulse to see how it goes in the future.

From where did the court conclude the numbers? why didn’t he include the number of absolute postings in the website as a criteria (in contrast of forum messages), why didn’t it inquire whether opening a forum requires the owner’s consent? all these questions were irrelevant to the ruling and were not included in the court’s opinion.

However, this part of the ruling is not the material part, but only the part easy to understand. The important decision was in the question whether directly linking to an infringing content on another site constitutes as direct infringement. Here is the time and place to remember how copyright works: actually, there are specific actions where the copyright holder is the only person entitled to perform, and the rest of the actions are allowed. These are specified in clause 11 to the Copyright Act. One of these rights, in Israel, is making a work available to the public.

Alice tried to claim that linking is making a work available to the public, defined as “performing an action in a work so that people from the public may have access from a place and time of their choice”. However, the court rejected this claim and said: “creating a link which transfers the user directly to the infringing site (either to the homepage or an internal page) is not “making a work available” … First, creating the link is not “performing an action in a work”; second, the link, by itself eases people from the public to locate the infringing work, but it does not create the access. In other words, the work has already been made available by the infringing site and therefore linking to that site cannot be deemed as “making a work available”“.

The court determined that there is no actual direct infringement (but may allow contributory, secondary or vicarious ones) by linking, this is a blessed interpretation of the law, which was not always acknowledged by the court (it was, however, ruled so in 11-cv-20427 Disney v Hotfile).

The meaning of this ruling may be relevant, however, to other torts. For example, could a person being slandered in a website sue all people directly linking to it? It seems that in such case, this ruling goes in favor of the actual logic.

[Originally in Hebrew, here]

That’s why corporations like Microsoft tend to use software patents as a strategic whip; for example, Microsoft approached HTC with a patent settlement offer, that will cause HTC to pay 5 US$ for every Android mobile device it sells. The thing is that Microsoft directly competes with Android with its “Windows Phone” operating system. Therefore, Microsoft makes more money when its competitors sell Android devices than when it sells its Windows Phone. But, of course, that the problem, not the solution.

Yesterday, David Drummond, Google’s chief legal counsel, ranted in the official Google blog about this conduct (covered also by TechCruch). He said that ”
A smartphone might involve as many as 250,000 (largely questionable) patent claims, and our competitors want to impose a “tax” for these dubious patents that makes Android devices more expensive for consumers“. The thing is that Drummond is also relating to the problem, and not the solution.

Recently, Android had became less and less of Open Source and more proprietary, where Google refused to release Android’s source code. Also, the choice of non-GPL license caused it to be less free. Of course, this lead Google further from the Solution.

The solution to Patent Trolling in the Android market segment is inherent with free software: detach the software distribution from hardware distribution. When people can purchase the devices and then install their OS at home, when they download it for free from the Internet, then these Patent Trolls will have to go against the actual distributor: Google.

As you know, Google, unlike other software companies, has the backbone and endurance to go into legal battle and keep the software segment patent-free. They did it during their long dispute with Viacom over YouTube and they’ll do it again and again.

The only way to win is to fight.

1.
Lawyers face a terrible problem, most users don’t read the terms and conditions; this causes them to be unenforceable in some cases (DeFontes v. Dell, Inc., No. 2004-137, 2009, more here) and lawyers tend to create presumptions of acceptance in different terms, which are always uncertain because they are never tested in court. Some lawyers tend to add the “I Agree” button only at the end of the document, some require email confirmation and some just add an “I Agree” checkbox.

2.
In comes CommonTerms. CommonTerms tries to simplify the reading of hard to read legal documents by adding nice icons about how the service providers use your data, if they are allowed to revise the terms for any reason or other information. In order to do so, Common Terms analyzes existing agreements and attempts to draft a database of practices. While their idea is nice, it’s yet to be perfect for the end-user because he needs to know such icons exist and actually read the terms for it.

3.
In comes my solution; however it requires some cooperation from lawyers. Lawyers could use XML tags or RDF, where lawyers could tag their Terms and Conditions with specific tags, such as “Shares your user generated content with 3rd parties” or “allows other users to create derivative works of content you upload”. In terms of Privacy Policies, it may be even easier, as a privacy policy is a set of specific questions, where the Icons just may show “uses 3rd party cookies” or “profiles you and sends information to advertisers”. Now, once the specific list of terms are defined, we can actually create a tag generator so the tech guys could mark the site; then, like websites put the Truste seal, they could mark their website in terms of user-friendliness.

4.
After we get the marking down, we still have some problems, but all are solvable: Self-Enforcement and Information, as well as comparing sites in terms of their Terms and Conditions. The other factor may be creating common grounds for tagging and creating child-friendly filters or other uses that users may do to understand what happens when they post their content in websites: is it sold, reused, mixed, shares or just removed after 36 hours.

5.
The thing is, that as a lawyer, I cannot code and I cannot enforce these things on people: not on other lawyers and not on my clients (or other lawyers’ clients). So, in order to make this happen, a demand has to come from the public, and that’s you.

You also appreciate reading about the EULA Generator.

But first, a short story. One of my favorite TV shows is South Park. I’ve been watching them from 1997, and have been a fan of the authors and their opinions; when Trey Parker and Matt Stone described their approach towards copyright in their interview for Reason Magazine back in 2006 i was quite happy to find out their approach for copyright was that of a true artist, a wish to reach a wider audience. In a same manner, back in 2008 when they launched South Park Studios, a website to allow watching all their episodes through video streaming as well as remixing and sharing their content, I understood how much they were artists and how they were not just in it for the money.

In 2008, South Park paid tribute to the internet nation with an episode criticizing the Writer’s Guild of America’s Strike while paying tribute to some of the latest internet meme sensations such as the sneezing panda and the Star Wars Kid. One of the subjects of criticism was Samwell, whose video “What What (in the butt)” depicted an African American male pondering whether the viewers of the video wish to “do it in the butt” with him. The video was displayed in the popular YouTube site free of charge and received millions of views.

In the “Canada on Strike” episode, the four prepubescent characters in South Park wish to earn a quick buch from the internet and decide to film a viral video. The position Butters, one of the characters, in the same way as Samwell is in the video and make the unconceivable, take the already grotesque video and make it even more grotesque. This is basically why I love South Park so much: the interaction between extreme free speech and the ability to mock the already mocked to a grain gives them the ability to go on for so many shows. This is the video that Butters produced:

Samwell decided that South Park’s use of his “Work” constituted as copyright infringement and decided to sue Viacom for copyright infringement. Viacom decided to be the better person and instead of settling the case out of court (which would help it, as a copyright owner to fight others who make similar uses of its content) decided to try and use the affirmative Fair Use defense. This week, a Wisconsin federal judge dismissed the case, arguing that South Park’s use of the work was fair (read the full opinion of 10-CV-1013 Brownmark Films LLC, v. Comedy Partners). The court weighed in favor of what I try to call “Cultural Fair Use” which became somewhat popular recently, but is not actually in the general Fair Use exemptions.

For all you non-lawyers, fair use is a defense (codified in 17 USC 107 for those who use copyrighted works for causes such as “criticism, comment, news reporting, teaching, scholarship, or research”. However, South Park’s use, in spite of the wish to be considered criticism, is not really criticism, but mockery or homage. South Park used Samwell’s work in order to criticize the viral videos altogether, not the work itself. In a similar case, where a famous Israeli Comic Book (or should I actually say “Graphic Novel”) cartoonist depicted Donald Duck in order to mock the Isreali Society, the Israeli Supreme Court ruled that his use was not fair as the criticism was not on the work itself (RCA 2687/92 Geva v. Disney). Only recently, the lower courts acknowledged that other, cultural aspects of fair use in order to stretch society’s public domain and ability add some works of authorship to the public domain without the formal requirements of copyright terms, solely because such works have become works of the public due to popularity and demand.

The recent cultural fair use is based on folklore more than anything else. The basic elements are that once a work has exhausted its commercial value and became a part of popular culture, it may allow others to create additional social value by reusing the work. Such uses may be mashups, remixes or other uses which are not highly criticizing or transformative, but are without any impact on the actual market value.

[Here comes that part where if you read this prior to hearing my lecture you thanked me, because the crowd will be rickrolled]

A good example is Rickrolling, the phenomenon of baiting someone into clicking a link on the internet which leads to Rick Astley‘s “Never Gonna Give You Up” video, which is not as grotesque as Samwell’s “What What”, but is no less funny. People have used this song and attempted to add it into popular culture and other works as an homage to the internet nation; either by playing it instead of the end credits to Bill O’Rielly‘s show, paying tribute in an episode of the popular TV show Family Guy, using Barack Obama as the singer by mashing up his speeches or even a Stephen Hawking tribute to the song.

But putting Rick Astley‘s career aside, let’s discuss Government Works for a bit. The US, as well as other states, has a “Government Works” clause that determines that any work of authorship made by the state itself is not subject to copyright. Unlike the US, Israel does not have such clause. Therefore, a material part of Israel’s history is subject to copyright; meaning that the national photo archives and other government works such as reports of the Central Bureau of Statistics are subject to copyright. In such case, when Israeli nationals (and other nationals, actually) wish to use government works, they must either license them or find other sources.

This creates a burden, first of all because the Israeli government does not benefit from selling licenses. It is not one of its positions as a government nor is it a material source of profit. The government has set up its Press Office to allow dissemination of information freely from the government outwards and copyright restrictions seems to contradict Israel’s wish to disseminate its message.

During the 2010 term, Parliament Member Meir Sheetrit submitted a bill introduced by Wikipedia Israel, proposing that non-commercial use of government pictures shall be free of charge, as long as the use is with credit, and does not manipulate or alter the photos in any way. In an interview, Sheetrit stated that one of the reasons for the governmental opposition to the bill was the fear from use of the photos by organisations
which are hostile to Israel or wish to promote the opposing narrative.

The bill was prepared following a study by Creative Commons Israel and Wikimedia, which dealt with Crown Copyrights. The understanding and discussions were whether to apply fair use principles to these uses or to exempt them individually. The tension between personal uses and political uses was balanced by the Israeli ministry of justice, which drafted the bill for MK Sheetrit, and exempted non-commercial use only.

Interestingly enough, the definition of what is commercial and what is not has yet to be discussed. It is interesting to note that both the language of the bill and the language opposing the bill use copyright as censorship or impediments on free speech. The rationale behind the bill, at least as stated by MK Sheetrit, was to allow the dissemination of Israeli Hasbara (propaganda) and use of the Israeli imagery for free by bloggers, Wikipedia and other organisations who wish to use them in order to enrich their works. However, at least as stated by MK Sheetrit, the governmental opposition was based on the fear of use by hostile organisations. Both parties held an opinion that government works are a part of the discourse and that copyright may be used to prohibit others’ speech or to allow them to undertake one’s narrative. These rationales underplay the economical aspects of copyright, and deal with fair use in a different manner, which is the ability to silence political speech.

If, indeed, the only rationale for copyright in Israeli government works is political: to maintain the political narrative, then one material aspect, which is the commercial value of the work, has to be let aside when discussing government works. Let’s, for this cause, inspect the incentives behind copyright and see whether they apply for government works (based on the incentives described by Julie E, Cohen in Copyright as Property in the Post-Industrial Economy: A Research Agenda); the purpose of Copyright was to encourage new and original authorship, however, in Government Works, there is little originality, most Government Works are either documentary (formal photographs or official journals) or are the result of a research; and even if commercial uses were made using these works, then the Government shall continue to create.

Therefore, the incentives for Government Works do not exist in copyright. Now, what’s left is the apparatus of control, and this is actually what’s important in copyright nowadays, more than the economical incentives in Copyright, it seems that Governments, like artists, wish to keep the control of what others shall do with their works, therefore applying their political narrative through copyright.

Israel’s offer for a “Israel Friendly License” shows that we do have a problem: Israel wishes to enforce its political narrative through copyright, by granting a license to use its works solely for those who adhere to its standards. Because the Government does not work for-profit, we can learn, more than from any commercial entity, that fair use is required for criticism, because it is made exactly where people do not want others to use their intellectual property.

The collection of the information was made available mostly by third party cookies, the same cookies which are set in your computer when you browse websites by advertising and media companies. These companies have a better understanding than the specific sites they provide services to. For example, if WPP purchases media in websites A and B, it knows who uses both A and B, and moreover, it knows that if C, a person, uses the sport section more both in A and B, it will show him sport-related advertisements when it uses D, a non-sport website.

Well, as troubling as it may sound, just when we are are meant to be calmed down with privacy issues things get worse. Google’s launch of Google Plus, the search giant’s antisocial network, which was meant to be with privacy by design and allows sharing of information according to different circles of proximity: a person could be a left-winged activist for his immediate family, but be a closet right-wing bigot for his school friends. It’s not that the other antisocial-netowork, Facebook, does not have the functionality to create friend lists and share the information, but it’s a lot more complicated there.

So, Google Plus was meant to be a haven for privacy seekers: It brought the best from Facebook, which was a walled garden for many years and from Twitter, which allows asynchronous social contacts (meaning I could add Benjamin Netanyahu as a person I follow, without him having to follow me ). Theoretically, an intertopia.

But the question is: how does Google benefit from Plus? (or what’s the plus for Google). Google is a media and advertising giant more than anything else. It earns money from selling advertising space; therefore it is in need for two indices: the first is the number of webpages viewed by end users and the time they consume in said pages (billboarding) and the second is the quality of the data it has for selling advertisements better (profiling).

In billboarding, Google suffered a grave loss recently; people spend less time in Google’s services and more in the other antisocial network; moreover, Google, that displays advertisements in 3rd party websites, is in fear of the day where Facebook shall launch a competing service and allow displaying “Facebook Ads”. In profiling, Google had a not-so-awful knowledge on your browsing behaviour, the things you liked and the people you connected with, it just didn’t know how to organize them. For example, if you’re interested in three different data, Google did not have the ability to connect datum to datum.

In came Google Plus and helped to solve the two problems: First, at least in the launch date, more and more people use this service to meticulously sort their friends in close circles and spend more time in their website (more billboards and profiling).

Now, all that Google needs to do is to integrate the social network seamlessly in the services it already provides. If Facebook made people take effort to amend their website’s code and display the “Like Button” in one million websites within a year of the product’s launch [which, of course, allows behavioural targerting] then Google could take one simple step to kill the like button, which is reasonable and mean.

A material portion from the websites, as said, implement Google-Analytics, Google’s statistics service that collects behavioural data. It is activated every time that a user browses a website and retrieves a file from Google’s servers which include JavaScript commands that request data and collect statistics. In the same manner, Google could change the file to allow social interaction and display a social toolbar in a same way to how Wibiya interacts with websites, and they can do it without obtaining the websites’ consent.

Indeed, it is not an optimal step and might cause antagonism, but it could be implemented to wipe Facebook’s remains from the earth, just because it already holds a neat market share. At this moment, Google has the best data to sell advertisements, and that cannot be taken away.

Following the public protest, made mostly in the internet, it was decided that the database shall commence with a pilot program which shall be no longer than four years. during this term, which shall commence this November, the necessity   of the database shall be examined (however, recent statements show that the pilot is not actually a pilot). The only way you can help during this pilot is to refuse to provide the government with your fingerprint.

On the actual question why is the biometric database dangerous to you and your country there are numerous answers which were already raised by experts and discussed over and over again. Briefly, the stated purpose of the database is to prevent forgery of identity cards (and identities). However, it order to prevent identity theft and ID forgery there is no actual need for a biometric database and several other methods already exist, including electronic identification cards. However, as we learned from a recently leaked document, the only reason that a biometric database is required was to pass information to the police about the citizens of Israel. We learned so when the police rejected a safer mean of storing biometric information detailed by Prof. Adi Shamir (the S in RSA), claiming that it cannot utilize the database if made in the Shamir method. And yes, the same police that uses extreme violence on protesters from right and left, against Arabas and against social activists.

Another reason to object to biometric identification and the biometric database is that once your biometrics is your unique identifier, then anyone with access to this information could possibly steal your identity. And of course I need not remind you that you leave your fingerprints on any cup of coffee you drink, right?

So, once we passed the “why we detest a biometric database in two paragraphs or less” the question that comes to mind is how you, as citizens, could protest against it. First, you have to understand that the state is going to try as hard as it can to persuade you to provide it with your fingerprints; the bureaucrats and clerks in the ministry of interior are obliged, by the national order, to offer you to join the pilot. Yes, in the same way that your grocery store clerk is obliged to offer you to join their value club, so does the clerk in the ministry of interior have to offer you to join the experiment.

However, one of the criteria set in the pilot is how many people did not join the database out of the entire population; these people have to be you. Beginning November first it is your civil duty to go to the ministry of interior’s offices and have new, non-biometric, cards, so that your refusal to enter the pilot will be counted and in two years time, when the pilot shall be examined, the parliament shall find out that no one wants it.

If you will not do so, then you will find yourselves in two years with a biometric database, that like any other database held in Israel, makes us forfeit our privacy.

[Originally published in 972Mag]