The police v. the networked looter: the starfish and the spider?

Written by Andrew Rens on August 24th, 2011

Criminologists are often impressed by the similarities between the police and gangs; violent masculine cultures, specific clothes and hair styles that indicate and contribute to group identity, hierarchies, and of course the use of force. Those who point out the similarities usually go on to point out the differences; the police are more numerous than any one gang, better armed and better (or at least more formally) organised. The looting and mayhem in London, and other large English cities early in August this year seems to suggest another difference, the difference between a network and hierarchy.

Although a star fish and spider may appear to be very similar in their morphology, that similarity is deceptive. A spider has many limbs but a single centralised control system. That centralised control system enables it to engage in sophisticated behaviour; spinning a web to catch prey. The starfish by contrast is not so sophisticated, but it is far more robust. A spider that suffers damage to the central core will die. A starfish can regenerate from a single limb.

This conceit (as my Elizabethan poetry professors would have termed it) is the titular metaphor of a book by Orif Brafman and Rod Beckstrom both graduates of the Stanford M.B.A. Unsurprisingly theirs is not the only work which contrasts phenomena characterised by decentralised self organising units with phenomena characterised by ponderous hierarchies. It is conventional entrepreneurial wisdombelief that network organisations are faster and more robust than those with larger resources but centralised control.

One of the good reasons for thinking that this might generally be true was suggested by Frederick Hayeck. While an organisation might have the resources to assemble more information than an individual a hierarchical organisation there comes a point at which the capacity of an organisation to process the information quickly and accurately is exceeded. In most hierarchical organisations the person who must make a decision that is at all out the ordinary does not have the time or expertise to collect or understand all the information needed to make the decision. The implication of Hayeck’s analysis is that the decision should be moved to where the information is situated transforming the hierarchy into a network.

Contemporary United States military doctrine is premised on this theory. Units engaged with the enemy communicate real time data such as video feed directly to each other, and co-operate in attacks according to protocols referred to as rules of engagement. Where a decision outside the protocols is required then combat units communicate directly with high ranking officers who are able to make the decision immediately. For example a tank, a surveillance drone (whose operator might be in the US), a helicopter and an infantry unit might all work together on a single occasion, with real time support from intelligence and logistics. Although military cultures are traditionally hierarchical they may adopt a network organisation for operational reasons.

I am one of those who are largely convinced that networks work better than hierarchies in most situations. So why am I sceptical of the narrative emerging from the English Summer riots that the police were outmanoeuvred by self organising looters who had no central leadership but who made better use of telecommunications technology.

A good example of this narrative is an article on TechCrunch titled “Absolute explosion” — How BlackBerry BBM fed the riots, says contact. In a previous article the author claimed that the Blackberry Messenger service, rather than visible social networks such as Twitter, enabled looters to co-ordinate because creates a “‘shadow social network‘ which is invisible to Police snooping”. This claim seems to be exaggerated. Blackberry Messenger makes use of a unique PIN which identifies a particular sending device, and cannot (easily) be reset by the user but can be re-set by RIM/Blackberry. The PIN can be used to identify one user to another, you can send someone a message if you know that person’s PIN. The PIN of a device is used in encrypting the message. Blackberry state that they use symmetric encryption. In other words when Blackberry user sends a message to another user the phone encrypts his message using his PIN and sends it to the Blackberry server. Blackberry decrypts and re-encrypts and sends it to the receiving user. In other words Blackberry have the keys and could decrypt any message for the police. But it is difficult to believe that large metropolitan forces like the London Met did not have a single underground officer or informant who received the BB messages.

The article itself, despite the headline, suggests a more complex dynamic “an organised gang deciding via word of mouth to target a shop to rob, organising it with throwaway phones and getting out the word on BBM straight away, effectively using a riot as a smokescreen to cover their tracks, ‘pinging the kids’ to come down and create confusion for the police as they melt away into night”.

Is the dynamic that resulted purely the result of technology enabling ‘the kids’ to form a flashmob? BBM technology isn’t that new, so why hasn’t this happened before? The key factor seems to be the willingness of ‘the kids’ to create confusion for the police. There are a wide range of explanations for why sufficient numbers of urban English youth are willing to break the law ranging from comments on the Daily Mail readers fulminating that about a culture of entitlement created by welfare, through Cameron’s non-explanation of ‘pure criminality’ to Laurie Penny’s passionate blogpost blogpost:
“People riot because it makes them feel powerful, even if only for a night. People riot because they have spent their whole lives being told that they are good for nothing, and they realise that together they can do anything – literally, anything at all. People to whom respect has never been shown riot because they feel they have little reason to show respect themselves, and it spreads like fire on a warm summer night. And now people have lost their homes, and the country is tearing itself apart.”

Why would the young people engage in criminal activity? That is an important question that is going to be debated in England and globally for some time to come. There is another less important why, which is why now, and in this way? These are the questions that suggest a link with technology but not in the way that the press has suggested.

The ‘copycat’ behaviour of rioters that extended, prolonged and changed what seems to have been an expression of anger by a very specific community in a restricted locality. Copycat behaviour was required that potential rioters believe that they could engage in vandalism without immediate or effective retaliation by the police. Potential rioters did not get that from belief from cryptic calls to action but from a far older technology; television. It was through television that young people could observe the police holding back while masked people broke shop windows, seized goods and ran away. It was through television that young people could observe that the police were either absent, slow to respond, and followed a rigid protocol. Whatever the motive(s) in those who engaged in looting on the Monday and Tuesday the one factor that was new in their situations was that they had been able to watch on television how the police public order units had behaved in response. It was clear to anyone watching the footage that it would be relatively easy for a group of people to emulate the behaviour of the looters without facing a risk of immediate capture. It was through television that potential rioters they could form the perception that the trend of law enforcement relying on surveillance camera footage for evidence could be thwarted by masks and hoodies. (This perception is currently being tested in courts across England.)

The English police forces have access to many more ways of gathering information than the (potential) looters. They can access many of the government owned CCTV camera’s that infest English cities, they could use surveillance helicopters using infra red, and they could call on members of the public to alert them to any suspicious activity, and even stream footage from webcams and cellphones. A police force intent on arresting criminals is necessarily reactive. But a police force operating in the network mode could, disperse its units and then, using multiple sources of information rapidly concentrate units where the information indicates trouble is beginning to occur. Superior communication, superior transport, use of mobile barriers and tactical discipline would allow units to seal off streets, both to prevent access to certain areas and to effect arrests.

So why didn’t the police respond in that way?

At the time of the Tottenham riot the police were facing widespread erosion of their political capital. Scandals about the hiring of former News International staff to advise on media relations close to the time when News International was under investigation for phone hacking, and bribing police officers to reveal information were only the latest. Reports in the Guardian had shown how the police had been using tax payers resources to engage in entrapment of environmental groups. The dubious tactic of “kettling” students protesting the doubling and redoubling of university fees pitted the police against law abiding citizens. Before these blows to their public image the police had already been criticised by the press for the mistaken shooting of a terror suspect. In its response to protests, as well as resignations of top officers over the News International scandal the police forces have been taking a great deal of the political heat directed at the Cameron administration. That same administration is however intent on cutting the budgets of the police forces, and re-structuring them so that elected police officials make decisions at a local level. The police could not afford another public relations scandal resulting from the use of force. The Guardian reports the concerns of a an individual policeman.
“At the briefing many of my officers wanted cast-iron guarantees that no individual officers would be suspended and prosecuted if we use force and a rioter became seriously injured. This was not forthcoming….Many people are becoming very angry that we refuse to move our lines and baton charge the rioters. I have run around like a blue arsed fly trying to understand why we are being ordered to stay static; the only explanation I can find is that Gold Command are concerned about the sensitivity of the target group.”

In a reversal of the usual order of things it was the police that suggested restraint while the politicians called for greater force. Hugh Orde suggested that the use of water cannons and baton rounds was not advisable, while politicians spoke of getting tough. When drafting large numbers of personnel onto the streets eventually stemmed the looting the police were adamant that their response was decided on police leadership, and took politicians to task for claiming the credit. The English public perceived the police handling of the crisis as better than the politicians. The Cameron administration was forced to back off, if only temporarily. The police subsequently revealed that they did access some of the Blackberry messagesand used the information to prevent looting at London Olympic venues.

So is this a story about new technology, and agile networks versus rigid hierarchies, or is it another story, about the older medium of television, and the role in shaping public perception, and how politicians and bureaucracies interact with television?

 

Copyright in ideas? The real McCoy or more yada yada?

Written by Andrew Rens on August 18th, 2011

No one sells an advertisement, instead advertisements are themselves used to sell other things.The result is that there aren’t many copyright cases about ads, those that do come up tend to involve the unauthorised use of sound recording or possibly film footage or photographs. But a current spat between two South African insurers over rival advertisements raises far more interesting issues about the extent to which copyright can be claimed over an idea, whether South African copyright law protects parody, and whether South African copyright law upholds, or unconstitutionally restricts freedom of expression.

Santam, a South African insurance company, recently aired a series of advertisements featuring Ben Kingsley. One of the ads has Kingsley dressed in a business suit and sweater soliloquising about appearance and underlying reality as he walks barefoot along a beach, with a classical piano piece playing in the background. Kingsley asks the viewer “Is yours full on proper insurance or is it sort of kind of well you are not totally covered for that insurance?” Kinsley is then met by four look alikes. The beach is instantly recognisable as Noordhoek Beach to those familiar with Cape Town, with the weather featuring that bleak grey cloudiness so often prevailing on the South African Atlantic coastline. The use of a classical score, a respected international actor and unusual length (60 seconds) is presumably intended to suggest a serious discussion, after all it is insurance that is being discussed. The message of the advertisement is that other insurers do not offer the real insurance that Santam offers.

The other advertisement was aired by Dial Direct a direct insurer which does not use brokers and claims to offer lower premiums and more efficient claim mechanisms than other insurers.South African television viewers will already be familiar with a series of ads which feature a talking hand saying “yada yada yada yada…..” Here is one example.Dial Direct produced another ad that shows a figure dressed in a business suit with a sweater, walking along a beach with a talking head for a head. The figure repeats “yada yada yada” several times and then is met by three other similar figures. The ad then ends with the Dial Direct punch line “less yada yada, more chi ching”. The beach is also Noordhoek beach under a clouded sky but the lighting shows much greater contrast. The ad also features a few chords of a noticeably different classical piano piece.

Santam obtained a temporary interdict* against the airing of the Dial Direct advertisement alleging copyright infringement and disparagement. The legal dispute continues and the High Court will be asked to rule on whether a final interdict should be granted. This blogpost looks at the copyright issue and not the disparagement issue. If you haven’t already watched the ads you should do so now, this blog will (almost certainly) be here when you come back.

Santam alleges that Dial Direct “copied” the ad. The ad is a cinematographic work according to the taxonomy used by the 1978 Copyright Act; ‘ “cinematograph film” means any fixation or storage by any means whatsoever on film or any other material of data, signals or a sequence of images capable, when used in conjunction with any other mechanical, electronic or other device, of being seen as a moving picture and of reproduction, and includes the sounds embodied in a sound-track associated with the film, but shall not include a computer program’

According to the 1978 Act is ‘“copy” means a reproduction of a work, and, in the case of a literary, musical or artistic work, a cinematograph film or a computer program, also an adaptation thereof…’. Adaptation is defined in the Act in respect of literary,musical and artistic works, and computer programs but not cinematographic films. Quite why the drafters of the 1978 Act chose to define copy to include the making of an adaptation (the equivalent of a derivative work in US jurisprudence) is unclear. Sections 6, 7, 8 and 11B, dealing with literary or musical works,artistic works, cinematographic films and computer programs respectively, each set out the exclusive rights granted to those deemed to be authors in the Act. In the section reproducing a work and making an adaptation are listed as separate exclusions.

Since a cinematographic film is described as a fixation of images the act of reproducing that film must necessarily involve reproducing that fixation. That isn’t what happened in this case. Dial Direct did not mechanically or digitally copy any of the footage of the advertisement. Could the Dial Direct advertisement be regarded as an adaptation? The 1978 Act fails to define adaptation for cinematographic film. Looking at the definitions of adaptation for other works should assist in giving an idea of what the term can mean. Adaptation for a computer program is
‘(i) a version of the program in a programming language, code or notation different from that of the program; or
(ii) a fixation of the program in or on a medium different from the medium of
fixation of the program’.

Adaptation of a musical work ‘includes any arrangement or transcription of the work, if such arrangement or transcription has an original creative character’. Reasoning by analogy these suggest that an adaptation of a cinematographic film would include changing the format from a widescreen to one suitable to television viewing, or changing the format from Blue Ray to High Definition or 3 Dimensional super high definition or whatever the latest format by which the movie industry hopes to sell copies to consumers who already own versions in the previous six formats.

Santam’s claim in its’ court papers is that both ads feature a figure in a suit walking on a beach talking about insurance and that that constitutes copying. The similarity of the ads amounts to copying. It seems that Santam is asserting exclusivity not in the film shot for it but in the idea of a man in a suit walking on a beach and talking about insurance. One of the first truisms that law students encounter in a course on intellectual property is that copyright extends to expressions of ideas but not to ideas themselves. Anyone can write a play or a film about star crossed lovers whose feuding clans forbid their love. The copyright holders in West Side Story couldn’t prevent Baz Luhrmann from distributing William Shakespeare’s Romeo + Juliet. A court which chose to extend copyright to ideas would be inviting a swarm of unruly issues. It is fairly easy to determine whether an artefact is a mechanical or digital reproduction of another, look at the two together, or in the case of video in succession. It is far more difficult for a court to determine whether two different expressions are of the same idea. If an idea is something other than a particular expression it is nevertheless only accessible when mediated through a particular expression. The court never has unmediated access to the idea itself. How can the court demonstrate that two expressions are of the same idea? It can either simply assert that that is the case or it can itself create another expression that apparently conveys the idea, and then assert that the third expression is equivalent to the other two being compared and that all three are expressions of the same idea. Philosophers have argued about the nature of ideas and their relationship to expression at least since Plato without any resolution. Introducing intractable philosophical problems of that order does not seem like an efficient use of judicial resources.

But what if a court were to rule that the similarity amounted to copyright infringement.The Dial Direct ad seems to be intended as a parody of the Santam advertisement. If there is infringement is it nevertheless defensible in South African copyright law as parody?

The possible exceptions in the 1978 Copyright Act for film are criticism (Section 12(1)(b) or quotation (Section 12(3)). Does the concept of criticism extend to parody? It is difficult to say since there is no case law on the exceptions in South Africa. Perhaps quotation would constitute a better place to locate a parody defence. Section 12(3) states: ‘The copyright in a … work which is lawfully available to the public shall not be infringed by any quotation therefrom, including any quotation from articles in newspapers or periodicals that are in the form of summaries of any such work: Provided that the quotation shall be compatible with fair practice, that the extent thereof shall not exceed the extent justified by the purpose and that the source shall be mentioned, as well as the name of the author if it appears on the work.’ Fair practise is not defined although Professor Dean suggests that it should follow the four factor analysis of fair use in United States copyright law. A fair use analysis of the ads may prove instructive.

The four factors to be taken into account in determining fair use are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The purpose of the use seems to be a parody intended to accentuate the difference between the companies; Santam as a traditional insurer reliant on the sense of security that it imparts to its customers and Dial Direct’s image of low hassle value for money. It is thus commercial speech intended to inform consumers. Where Santam’s ad suggests that other insurers are not real insurers Dial Direct’s ad can be seen as a humorous reply that there should be less talking and more value for consumers. Dial Direct certainly did not slavishly copy nor intend its ad to act as a substitute for the Santam ad, the ad is transformative. Factor 1 favours Dial Direct.

Santam’s ad is also commercial speech, intended to persuade consumers that Santam offers real insurance whereas other insurers do not. Both ads are commercial speech. Commercial speech does have some constitutional protection although less than all important political speech. Factor 2 seems to favour neither party.

As I’ve already discussed the amount and substantiality of what was “copied” suggest that there has not been copying at all. Factor 3 favours Dial Direct.

Since the Santam ad is not itself sold or let out for a fee but is instead intended to persuade people to buy insurance from Santam there can be no effect on the market for the ad. The market for the ad consisted of one customer which commissioned the ad. Could the Dial Direct ad be said to reduce the value of the ad? Only if copyright law is construed so as to award a right to market share merely because a particular company has spend considerable sums on advertising. Factor 4 favours Dial Direct.

On a fair use analysis Dial Direct’s parody would be permissible.

What about acknowledgement of the source and author? The name of the author, that is the producer of the ad does not appear on the ad and therefore need not be acknowledged. But should the Dial Direct ad have mentioned the Santam ad as the source of some of its ideas? Since Santam complains in its court papers that consumers are likely to recognise that the Dial Direct ad is referring to the Santam ad it doesn’t seem as if a formal lack of acknowledgement of the source of the ad would satisfy Santam. The 1978 Copyright Act does not state what the consequences are of a failure to acknowledge a source. Does it mean that a quotation is not fair? What if the source is obvious? What remedy should follow? None of these questions are addressed in the legislation or case law. For a more probing discussion of the exceptions relating to film in South Africa see a report by the Program for Information Justice and Intellectual Property at American University entitled Untold Stories in South Africa: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers (opens a pdf)**.

If the 1978 Copyright Act is read so as to forbid parody then it unconstitutionally restricts freedom of expression. Section 16 of the Bill of Rights states
’16. Freedom of expression

Everyone has the right to freedom of expression, which includes ­
a. freedom of the press and other media;
b. freedom to receive or impart information or ideas;
c. freedom of artistic creativity; and
d. academic freedom and freedom of scientific research.’

Legislation that conflicts with the Bill of Rights is liable to be struck down by the courts. When a court must consider legislation passed by undemocratic governments prior to 1994 it does not need to show the kind of deference due to legislation passed by a democratically elected legislature. If a court rules that there has been infringement then this case will be the first case since the Laugh it Off to consider the interface of freedom of expression and intellectual property law. The difference is that in this case the respondent, Dial Direct, has chosen to directly challenge the constitutionality of the Copyright Act. Although this blog discusses the possibility of an defence of parody arising from the exceptions in the Copyright Act at some lengthy Dial Direct has taken a different approach arguing that a parody is by its nature neither a copy nor an adaptation and is therefore not infringing, but if found to infringe, to constitute speech protected by the Bill of Rights, and that to the extent that the Copyright Act conflicts with the Bill of Rights the Bill must prevail.

How will the courts rule on these issues?

* An interdict is the term used in South African common law for an injunction.
** I advised the authors of the report on South African copyright law.