Alex Gibney's We Steal Secrets: anti-Assange propaganda (again)

In May I was invited to a preview showing of Alex Gibney's We Steal Secrets by Universal Pictures. In the interests of full disclosure, I was also invited to speak at a Q and A session hosted by ABC Radio Adelaide following a screening of the film in late June (so I have seen the film twice). Naively I believed that as a documentary, the film would depict not only the fascinating story of WikiLeaks, but also the astonishing bravery of those involved in the key leaks, especially Julian Assange and Bradley Manning. As it turned out, the film was a testament to the suffering of Bradley Manning, although it seems to reduce his motivations for leaking material to the consequences of sending a gender-confused loner to FOB Hammer in Iraq, rather than the motivations of a human being faced with exposure to horrific evidence of the actions of his own country in a time of war. For a more detailed analysis of and background to Manning's motivations, see Chase Madar's The Passion of Bradley Manning, and Manning's own opening statement from his trial. As for Julian Assange, the film goes to some effort to build up the viewer's admiration for Assange as a highly intelligent and strongly motivated digital activist at the beginning of the film, only to dramatically tear this down (as if it was an illusion or sham) half way through the film. Through selective use of interview subjects, editing and footage Assange is portrayed as strangely (and unnecessarily) paranoid, vain and power obsessed. I can only hope that people seeing this film without a strong background in what actually happened will be able to see through these storytelling devices.

On all of these points I would suggest you read Robert Manne's excellent review of the film in The Monthly, together with the later version with annotated comments, where Manne exchanges views with the film's director, Alex Gibney. I agree with Manne's comments and responses, and share his concerns with the limitations of the film. I would also add a few of my own (some of these are expressed elsewhere and I would also refer you to WikiLeaks annotated transcript of the film, also referred to by Manne and Gibney).

First, the title of the movie: We Steal Secrets, is a quote from former CIA/NSA director Michael Hayden, not from WikiLeaks. Why no-one seems to be at all concerned with the fact that the US Government admits to stealing secrets is beyond me. The revelations of Edward Snowden seem to have attracted a similarly distorted publicity: Snowden "stole" secrets from the NSA: if his claims are true (and I have no reason to doubt they are given that every Hollywood movie I have ever seen takes it as a given that the CIA, NSA and other three letter organisations are monitoring citizens all of the time) then whose secrets was Snowden stealing? By my calculations, he was just claiming them back again. So the title raises an important issue, but its implications are misleading. WikiLeaks was not claiming to steal secrets: it provides an anonymous publications outlet for whistleblowers: there is a difference.

Gibney seems very preoccupied with proving that Assange is paranoid, power hungry and deluded regarding his need for privacy. His exchange with Manne suggests that Assange is overly concerned about the Grand Jury indictment (which Gibney is not convinced even exists). At no time does Gibney present the alternative explanation which could also be drawn from the very footage he shows: Assange was thrust unaided and unsupported into the limelight with the media publication of the leaks. The movie does not show a person who wanted and demanded that limelight, but rather a person transitioning from a very private life to a very public one. Was Assange ready for it? No, but who would be? Rather than admiring himself, I felt Assange appeared very uncomfortable with all of the attention, but was willing to be there to present the message (but again, as a society we fixate on the messenger). And Assange was justified in his reticence, the mainstream media essentially then hung him out to dry (along with WikiLeaks): thanks for the copy now you are on your own!! There is no empathy at all for the personal difficulty that this must have caused Assange and no consideration of the long term impact it has had on Assange to accept the burden of publishing the leaks. If Assange is so hungry to be the public face of WikiLeaks then it must be accepted he has also paid an enormous price.

The listening device found this week at the Ecuadorian Embassy in London may also raise some questions about whether Assange's privacy fears are paranoid?

I also very much doubt Gibney's arguments that Assange is under no real threat regarding the possible extradition to the US from Sweden. I disagree absolutely with his interpretation of what Sweden has said ("if the charges are political (such as the Espionage Act) many countries-including Sweden - would refuse to extradite him." I AM a lawyer and that is NOT how I would interpret what Sweden or Judge Lindskog have said: "What is classified under US law is probably not classified under Swedish law, and enemies to the US may not be enemies to Sweden,'' he said. That is a rather big PROBABLY. Would you take the risk?

Another takeaway from the movie seemed to be that WikiLeaks (read Assange) failed Manning, leaving him to fall prey to the 'confessor and journalist' Adrian Lamo. Little is made about Lamo's entrapment of Manning (and his outright dishonesty) rather we are gently led through a series of implications that WikiLeaks enticed, entrapped and then used Manning. Certainly the complexities of anonymity create some unanticipated problems. We see these in the film in Manning's need to reach out, unfortunately to Lamo, who betrays him. However, WikiLeaks and Assange did not have the benefit of 20/20 hindsight and an in-house psychologist when opening up the anonymous drop box. Much is made of the 2009 Most Wanted Leaks and the encouragement of leakers to respond to that call. Thanks Gibney, you can do all of the work for the US prosecutors.

 I was also annoyed by some of the gratuitous comments made about Assange and his "cheap suits" and "$300 laptops": why is this relevant? Here is a person who has dedicated themselves to a public cause, and we have to worry about what they are wearing: oh please! A further gratuitous scene shows Assange dancing at a nightclub (the sub text being that Assange dances while Manning is detained in horrendous conditions), really this grates as an irrelevance at best. The film also repeats those claims about Assange being scruffy and unwashed during the days when the Afghan War Logs were being produced for publication, these comments coming from the journos who were happy to take the major leaks to sell their newspapers and then stabbed WikiLeaks in the back. For Gibney it seems that Assange must be saint or sinner, and never a human being, in order to be defensible.

 My most serious concern regarding the film is not actually the film itself. It is, as a piece of cinema, a compelling and engaging work. The scenes depicting the Manning chat logs are well presented and chilling. It contains some wonderful footage of Assange that I had not seen before. It presents the background of the WikiLeaks story clearly for those who don't know much about the context and nature of the links. For that reason I was happy to be involved in the Q & A. However, it is also for that reason that I am most concerned. If this is the main source for many people to learn about Assange, Manning and WikiLeaks, it is at best a half truth. And that is the risk, many will prefer to use this movie as a source of truth rather than merely a source. There are lots of better, more accurate sources of information. On this point also Gibney makes much of Assange's refusal to be interviewed for the project (despite this the film includes a lot of interviews and footage of Assange from other sources). This refusal is made out to have been made on the basis that Gibney refused to pay him a large sum of money and on the grounds that Assange has something to hide. There are multiple instances of Assange speaking freely available from a range of other sources. Assange is not living under a self-imposed veil of silence, he is active and communicating on a daily basis.

As Manne observes: "Gibney's powerful, accomplished and vivid film will for some time help shape opinion, especially among those members of the liberal Left on whom Assange now most relies. So in the conflict between them, it matters who is right." And this is the real danger. It presents itself as an impartial analysis of events, when it clearly is not so.

There is no balance when it comes to correcting attacks on Assange from a number of people who are well known to be hostile to him (and not above the cheap shots). Again, Manne notes that the film really ends with Domscheit-Berg's reflections on Assange, reflections which are distorted and biased by his own falling out with Assange.

 So I would urge you to not accept We Steal Secrets as a documentary which explains the story of WikiLeaks and Assange, but rather read beyond the film to real sources which explain Assange's motivations and the operations of WikiLeaks, such as Cypherpunks ( a book which has been curiously overlooked given that it clearly articulates Assange's views).

View the film for the interesting vision and range of opinions, but read more widely and be open to the truth from other sources.

RightsTalk Invitation: Human Rights and Video Games

You’re invited to the Australian Human Rights Commission for a lively panel discussion on human rights and video games. This talk will canvass hot topics such as racial stereotyping and the depiction of women in video games, the associations made between games and violence, and bullying in online gaming. The panel will also look at the positive use of video games to promote human rights, and the role of young people and women in the gaming industry and community.

Chair: Professor Gillian Triggs, President of the Australian Human Rights Commission

Speakers include:

 • Katie Williams - freelance games journalist and critic who has written for PC Gamer, PC PowerPlay, GameSpy, IGN, Hyper magazine, TouchArcade, Kotaku Australia, Games.on.net, Atomic, and WarCry. Katie is the newly appointed director of the Freeplay Independent Games Festival taking place in Melbourne this September. She blogs at www.alivetinyworld.com

• Brendan Keogh - videogame critic and PhD candidate at RMIT University, Melbourne. Brendan has written for Edge, Hyper, The New Statesman, The Conversation, and Polygon.

• Dr Christopher Moore - gamer and lecturer in Media and Communication at Deakin University, Melbourne. His research interests include the appropriative practices of gamer subcultures.

 • Dr Melissa de Zwart – Associate Professor, Adelaide Law School, and a Member of the Classification Review Board (Cth). She has published widely on matters affecting the regulation of the online environment, including copyright, freedom of expression, virtual worlds, social networking and contractual communities.

Date: Thursday, 13 June 2013 Time: 5.30pm – 7.00pm
Location: Australian Human Rights Commission Level 3, 175 Pitt Street, Sydney NSW 2000
RSVP: please register here http://rightstalkhumanrightsandvideogames.eventbrite.com

This session is free and spaces are limited to 100 attendees. For more information on the Commission’s RightsTalks program go to http://www.humanrights.gov.au/get-involved/rightstalk

Postscript to the TV Now skirmish

In the aftermath of the Telstra v Optus dispute over TV Now, which offered, amongst other things, on demand recordings and viewing of AFL and NRL games on a user's mobile devices, Telstra has announced that it will be making an app available to subscribers (ie not just Telstra customers) that provides live broadcast of AFL games. For Bram's earlier analysis of the case see here and here. The High Court refused leave to appeal in September 2012 and the TV Now service was discontinued by Optus. Of course, the matter became the focus for debate over the intended scope of s111, and thus the issue remains relevant in the context of the ALRC reference on Copyright and the Digital Economy.

Who Controls the Internet: The Debate is Live and Clicking

Bram has been moonlighting over at The Conversation with a post about the ITU and WCIT-12.

7th Gikii 2012 - call for papers!!

Call for Papers: 7th Gikii Workshop, 17-18 September 2012

UEA London

102 Middlesex Street

London E1 7EZ UK


It’s harder than it used to be to write a Call for Papers for GikII, the so-cool-it-hurts blue skies workshop for papers exploring the interstices between law, technology and popular culture. Back in the day, you could dazzle the noobs just by mentioning past glories like the first paper on Facebook and privacy, Harry Potter and the Surveillance of Doom, regulation of autonomous agents according to the Roman law of slavery, edible technologies and copyright in Dalek knitting patterns. But nowadays we live in a world where we routinely encounter unmanned surveillance drones used to deliver tacos or made out of cats , commercial asteroid mining with Richard Branson, 3d printers used to create human organs and the fact that Jeremy Hunt still has a job.

Still, if any of these or the other many phenomena of the digital age in desperate need of legal attention are digging a tunnel out of your brain, then send us an abstract for the 7th Gikii workshop! Maybe this year it will be your paper which contributes the seminal GikII meme following in the honoured footsteps of LOLcats, flying penises, and knitted Daleks.

Gikii has run since 2006 in venues such as Edinburgh, Oxford, London, Amsterdam and Gothenberg with attendees coming from Europe, the US, Canada, Australia, Japan, India and Latin America. There is no conference fee, but attendees may be asked to contribute to the conference dinner on 17th September. If desired, we can suggest London accommodation ranging from cheap to more expensive. This year’s Gikii is run with the kind assistance of the Law School, University of East Anglia at their London centre, and will commence at lunchtime Sep 17th running through to end September 18th. These dates also offer an opportunity to combine GikII with the 7th SCL Policy Forum (details at http://www.scl.org/site.aspx?i=ev25696 ) in what has been termed the “week of geek”.

Abstracts of no longer than 500 words should be sent to lilian.edwards@strath.ac.uk and "Karen Mc Cullagh (LAW)" K.Mccullagh@uea.ac.uk by August 13th 2012. Acceptances will be announced shortly thereafter. A limited number of places will be available for participants not giving papers, and preference will be given for these to scholars (including postgraduate students) who have not previously attended GikII. Registration for these places will open at gikii.com when acceptance of abstracts is notified.

Shamelessly reposted from panGloss

Australasian Intellectual Property Academics Conference 2012

Date: 13 & 14 July 2012

Time: 8.30am-6.00pm and 9.00am -12.00pm
Venue: National Wine Centre of Australia


Thursday 12 July
Adelaide Law Library Drinks Reception for Professor W.R. Cornish
5.30pm-6.30pm
Adelaide Law School Moot Court (free event)


Friday 13 July
Opening Session
9.15am-10.30am
Professor Cornish
Ass Prof David Brennan, Melbourne Law School



Morning Tea
10.30am-11.00am


Session 2: Trade Marks, Patents and Counterfeit Goods
11.00am-12.30pm
Amanda Scardamaglia, Swinburne University of Technology
'The Colonial Trade Mark Regime: Opening up the Australian Archives on Colonial Trade Mark Registrations'
Chris Dent, University of Melbourne
‘Empirical Evidence of the Patenting of Pharmaceutical Innovations’
Michael Blakeney, University of Western Australia
'Weapons of Mass Deception? The role of terrorists in counterfeiting and piracy’



Lunch
12.30pm-1.30pm

Session 3: Copyright
1.30pm-3.00pm
Graham Greenleaf and Catherine Bond, University of New South Wales
'Public rights in copyright: What makes up the public domain?’
Elizabeth Adeney, Deakin University
‘Fair dealing for the purposes of quotation: What is a quotation exception and
should Australia have one?’
David Lindsay, Monash University
'What does iiNet mean and what happens now?'



Afternoon Tea
3.00pm-3.30pm

Session 4: New Developments
3.30pm-5.00pm
Nicolas Suzor, Queensland University of Technology
'Access, progress, and fairness: rethinking exclusivity in copyright'
Kylie Pappalardo, PhD Candidate QUT Law School
'Understanding the role of users in intermediary liability: theory, rhetoric and
practice'
Robert Cunningham, University of Western Australia
'Should the Public Domain Have Standing? Applying the Ecology Analytical
Framework to Intellectual Property Rights'


Conference Dinner
6.00pm-10.00pm


Saturday 14 July

Session 5: ALRC - Copyright Review
9.00am-10.30am
Prof Jill McKeough, University of Technology Sydney
ALRC Commissioner

Morning Tea
10.30am-11.00am

Session 6: Research Directions and Planning Ahead
11.00am-12.00pm

For registrations:
http://law.adelaide.edu.au/events/2012-aust-intell-prop-acad-conf.html

NRL v Optus in the Full Federal Court: victory for Telstra

In a rapid piece of work, the Full Federal Court (Finn, Emmett and Bennett JJ) handed down a unanimous judgment in the Telstra v Optus dispute over recording of AFL and NRL games, National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd, [2012] FCAFC 59, on 27 April 2012. As reported by Bram in February  Optus had since July 2011, been offering its subscribers access to the TV Now service, which (subject to payment of the relevant fee) allowed users to select to record TV programs being shown on free-to-air TV, provided  that the 'record' button was selected prior to the commencement of the relevant show. The AFL and NRL had an exclusive deal with Telstra regarding the broadcast of footage of AFL and NRL games via the internet and mobile phones (a deal which is both lucrative and an important source of fudning for both codes). The Optus model was seriously and deliberately 'disruptive' of this licensing arrangement.

The Full Federal Court focused on the meaning of  'make' and 'maker' in the Copyright Act, concluding the Optus, or Optus together with the subscriber, was the maker of the film, sound recording or copy of the game (Rares J at first instance had found this was the subscriber, thus immunising Optus against liability through reliance upon s111). Following on from this finding, the FFC concluded that Optus was not entitled to rely upon the 'private and domestic use' exception under s111. This is consistent with Bram's own thoughts on the intended scope of that provision (which was introduced for time shifting, a practice which had previously been an unauthorised use under Australian law, it was never intended as a foundation stone of a commercial business model).

The Court held: 'Optus could be said to be the maker in that the service it offered to, and did, supply a subscriber was to make and to make available to that person a recording of the football match he or she selected. Alternatively Optus and the subscriber could be said to be the maker for Copyright Act purposes as they acted in concert for the purpose of making a recording of the particular broadcast which the subscriber required to be made and of which he or she initiated the automated process by which copies were produced. In other words, they were jointly and severally responsible for the act of copying.' [para 4]
Looking at the question of who does the copying, the Court noted that the TV Now service was designed, provided and marketed by Optus to enable programmes to be received, copied, stored and streamed to a subscriber's mobile or PC device. The Court considered the correct characterisation of the 'maker' of the copies in the context, noting the four possible alternatives:
'(i) they were made by Optus but as agent for the subscriber;
(ii) they were made by the subscriber as a principal using a facility made available by Optus pursuant to its contract with the subscriber;
(iii) they were made by Optus as a principal using its own technology but subject to its contractual obligation to store and to allow subscriber viewing of the recordings so made at the time(s) of his or her choosing; or (iv) they were made jointly by Optus and the subscriber both of whom, consistent with their contract, acted in concert with one another pursuant to a common design to have a broadcast copied on Optus’ technology and made available to be viewed by the subscriber.' [para 53]
Looking at the provisions of s 86(a) and s 87(b), the Court concluded that the term 'make' is directed to the creation of a physical thing  ie the embodiment of the copyright subject matter. This action is undertaken by the automated copying system: a system 'configured designedly so as to respond to a third party command to make that copy' [para 64]. 

The Court places a heavy emphasis on the creation, promotion and operation on the TV Now system being designed solely to be in constant readiness to respond to subscriber demands. This resulted in the Court finding that Optus was a 'maker' of the recordings. The Court then considered if the subscribers were also makers of the copies. They concluded: 'The subscriber, by selecting the programme to be copied and by confirming that it is to be copied, can properly be said to be the person who instigates the copying. Yet it is Optus which effects it. Without the concerted actions of both there would be no copy made of a football match for the subscriber. Without the subscriber’s involvement, nothing would be created; without Optus’ involvement nothing would be copied. They have needed to act in concert to produce – they each have contributed to – a commonly desired outcome. The subscriber’s contributing acts were envisaged by the contractual terms and conditions. How they were to be done were indicated by the prompts given on the Optus TV Now TV guide page. The common design – the production of the selected programme for transmission to the subscriber – informed the solicitation and the taking of a subscription by the subscriber; it was immanent in the service to be provided.' [para 76]

On this basis, both Optus and the subscriber could 'both properly be said to be jointly and severally responsible for the act of making the copies'. [para 77] The preferred view of the Court was that both Optus and the subscriber, acting together, were the makers of the copies.

With respect to s 111 the Court observes that: 'There is nothing in the language, or the provenance, of s 111 to suggest that it was intended to cover commercial copying on behalf of individuals. Moreover, the natural meaning of the section is that the person who makes the copy is the person whose purpose is to use it as prescribed by s 111(1). Optus may well be said to have copied programmes so that others can use the recorded programme for the purpose envisaged by s 111. Optus, though, makes no use itself of the copies as it frankly concedes. It merely stores them for 30 days. And its purpose in providing its service – and, hence in making copies of programmes for subscribers – is to derive such market advantage in the digital TV industry as its commercial exploitation can provide. Optus cannot invoke the s 111 exception.' [para 89] Bram agrees that the position argued for by Optus was way outside the envisaged scope of s111 and the system as developed and marketed by Optus goes beyond the analogy of a home video recording device, not the least because it allows platform as well as time shifting (a commercial advantage clearly not lost on Optus). The Court observed that analogies are not particularly helpful in this context (noting the differing outcomes in US cases dealing with indirect liability, such as Cartoon Network LP, LLLP v CSC Holdings Inc 536 F 3d 121 (2nd Cir 2008))

Given the joint and several liability, Optus having alone been sued, it was liable as the person who did the acts of copying.

It is likely, although unknown at this time, that Optus will appeal.