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12.29.15

Links 29/12/2015: SparkyLinux 4.2, Ian Murdock’s Rants

Posted in News Roundup at 7:25 pm by Dr. Roy Schestowitz

GNOME bluefish

Contents

GNU/Linux

Free Software/Open Source

  • 10 projects to fork in 2016

    2015 was a year of many new open source projects hitting the scene with a splash. From enterprise solutions to home brewed open source concoctions, many of the projects released as open source software this year have made a huge impact on the world of computing in a very short amount of time. While flash stardom isn’t always the best predictor of longevity, we think these 10 projects just might have come onto the scene with enough momentum to continue their success in the new year.

  • 32C3: A Free and Open Source Verilog-to-Bitstream Flow for iCE40 FPGAs

    The toolchain, or “flow” as the FPGA kids like to call it, consists of three parts: Project IceStorm, a low-level tool that can build the bitstreams that flip individual bits inside the FPGA, Arachne-pnr, a place-and-route tool that turns a symbolic netlist into the physical stuff that IceStorm needs, and Yosys which synthesizes Verilog code into the netlists needed by Arachne. [Clifford] developed both IceStorm and Yosys, so he knows what he’s talking about.

  • Codes of Conduct

    What is the role of programmers in software development? The question is never far away in free and open source software (FOSS). Last month, however, the issues surrounding the question were emphasized by Robert C. Martin’s attempt to write a programmer’s oath that states best practices and the resulting discussion.

  • Enterprise startups: Open source may be your only hope

    No, not because second-tier developers wrote it. You probably have great developers. Instead, the real problem is that your developers are stuck building new code on top of old code. Over and over and over again.

    Ironically, this is a sign of success. But, it also creates problems.

    As professor Zeynep Tufekci describes it, “We are building skyscraper favelas in code—in earthquake zones.” While she’s referring to the security vulnerabilities inherent in such code development, the problem is actually broader.

  • Open Source Software’s Role in Breach Prevention and Detection

    Security professionals are increasingly acknowledging an uncomfortable truth: No network is secure from a sufficiently skilled and determined attacker. So while every effort should be made to prevent intruders getting on to the corporate network, it’s important that you can quickly spot an intrusion and minimize the damage that can result.

    Anton Chuvakin, a security expert at Gartner, points out that if hackers are made to work hard to find what they are after, intrusion prevention and detection systems have a far greater chance of spotting them before they can do too much damage.

  • SaaS/Big Data

    • Mesosphere Releases Datacenter Operating System Version 1.4

      Version 1.4 of the Mesosphere Datacenter Operating System (DCOS) is now generally available, featuring user interface updates, support for Marathon 0.13.0 and Chronos, and the Mesos 0.25.0 kernel.

    • A 2016 to do list for the OpenStack board

      One look around the airport waiting lounge or family living room will tell you everything you need to know about where the cloud is headed. Christmas carols drift on by thanks to Pandora, gifts come without having to stand in line at the mall, and those holiday snaps of the family will be stored on someone else’s server.

      In the next 12 months, software running on clouds will rule our world more than ever—but unfortunately not many of those clouds are powered by OpenStack.

      While we rightly raise a glass to celebrate the substantial gains OpenStack has achieved in 2015, it’s time to recognize the vast potential to gain new ground in 2016. So, let’s put those New Year’s resolutions to good use by rallying application developers to the cause. To win them over, we must make OpenStack a more inviting and immediately valuable solution to serve their needs.

    • How Docker and containers improved software development at eZ

      Docker sparked the trend in software containers less than two years ago. And since its modest presentation at PyCon in 2013, the startup has vaulted to a value of nearly one billion dollars, drawn 2,500 attendees to DockerCon, and its namesake technology has become a marketable skill to have, entering Hacker News’ top 20 most frequently requested job skills.

    • Apache Turns to Big Data Projects — Big Time

      Kylin. Meanwhile, the foundation has also just announced that Apache Kylin, an open source big data project born at eBay, has graduated to Top-Level status. Kylin is an open source Distributed Analytics Engine designed to provide an SQL interface and multi-dimensional analysis (OLAP) on Apache Hadoop, supporting extremely large datasets. It is widely used at eBay and at a few other organizations.

      “Apache Kylin’s incubation journey has demonstrated the value of Open Source governance at ASF and the power of building an open-source community and ecosystem around the project,” said Luke Han, Vice President of Apache Kylin. “Our community is engaging the world’s biggest local developer community in alignment with the Apache Way.”

    • 10 cool tools from the Docker community

      Looking back at 2015, there have been many projects created by the Docker community that have advanced the developer experience. Although choosing among all the great contributions is hard, here are 10 “cool tools” that you should be using if you are looking for ways to expand your knowledge and use of Docker.

    • Linux Containers – Benefits and Market Trends

      In April, Docker announced a $95 million series D round of funding. This is one of many events over the past year that has demonstrated how the industry has shifted towards the use of Linux containers (LXC) to deploy online services. Even giant cloud services companies, including Amazon, Google, Microsoft, Redhat, IBM and VMware, are pushing towards containerization. With the market leaning in the direction of containers, let’s take a deeper look at what they are, their history and current developments.

  • Oracle/Java/LibreOffice

    • Getting LibreOffice to Do the Write Thing

      We install Linux on every one of our Reglue computers. Included in that installation is the entire suite of LibreOffice. Unfortunately, a number of Reglue Kids began complaining about homework assignments being rejected. Most times they were scolded and told to re-submit the assignment in the proper format…you know, that well known proprietary one. Sometimes students were given a lower grade for not following the submission instructions.

  • Pseudo-/Semi-Open Source (Openwashing)

  • BSD

    • DragonFlyBSD Rebases Its Intel Kernel Graphics Driver Against Linux 4.0

      DragonFlyBSD’s Francois Tigeot has done some more great work in allowing their open-source Intel graphics driver to be more featureful and comparable to the Linux i915 kernel DRM driver for which it is based.

      While DragonFly’s i915 DRM driver started out as woefully outdated compared to the upstream Linux kernel code, the work done by Tigeot and others is quite close to re-basing against the latest mainline code. With patches published recently, the DragonFlyBSD driver would now be comparable to what’s in the Linux 4.0 kernel.

    • FuguIta-5.8

  • Public Services/Government

    • 18F site facilitates open-source bargain hunting

      To facilitate this, the team launched a new website — Micropurchase.18F.gov — as place to post new projects for registered users to peruse and bid on.

      “Our goal is to enable parts of our own agency and the rest of the federal government to use this platform to ask the developer community to create open source code for their project,” 18F said in an email to companies that expressed interest in the original micro-purchase pilot. “We anticipate posting auctions for micro-purchase tasks throughout 2016.”

    • Estonia updates X-Road server

      The X-road update is financed in part by the European Regional Development Fund. Estonia’s secure document exchange system is developed as open source.

  • Licensing

    • Shining a spotlight on free software: the FSF’s Licensing & Compliance Lab’s interview series

      In August of 2012, the Licensing & Compliance Lab kicked off a series of interviews with developers of free software. With 2015 in the rear-view mirror, we take a moment to look back on the series and highlight these great projects once again.

      In August of 2012, the Licensing & Compliance Lab kicked off a series of interviews with developers of free software. These interviews were a chance to highlight cool free software projects, especially those using copyleft licenses, and learn more about why they are dedicated to free software. What started as a single interview has grown into a regular feature of the Licensing & Compliance Lab blog. With 2015 in the rear-view mirror, we take a moment to look back on the series and highlight these great projects once again.

  • Openness/Sharing

    • Google, HP, Oracle Join RISC-V

      RISC-V is on the march as an open source alternative to ARM and Mips. Fifteen sponsors, including a handful of high tech giants, are queuing up to be the first members of its new trade group which will host next week its third workshop for the processor core.

      RISC V is the latest evolution of the original RISC core developed more than 25 years ago by Berkeley’s David Patterson and Stanford’s John Hennessey. In August 2014, Patterson and colleagues launched an open source effort around the core as an enabler for a new class of processors and SoCs with small teams and volumes that can’t afford licensed cores or get the attention of their vendors.

    • An Open Source Reference Architecture For Real-Time Stock Prediction

      While this post does not cover the details of stock analysis, it does propose a way to solve the hard problem of real-time data analysis at scale, using open source tools in a highly scalable and extensible reference architecture. The architecture below is focused on financial trading, but it also applies to real-time use cases across virtually every industry. More information on the architecture covered in this article is also available online via The Linux Foundation, Slideshare, YouTube, and Pivotal Open Source Hub, where the components in this architecture can be downloaded.

Leftovers

  • Science

    • Origins of the Irish down to mass migration, ancient DNA confirms

      Scientists from Dublin and Belfast have looked deep into Ireland’s early history to discover a still-familiar pattern of migration: of stone age settlers with origins in the Fertile Crescent, and bronze age economic migrants who began a journey somewhere in eastern Europe.

      The evidence has lain for more than 5,000 years in the bones of a woman farmer unearthed from a tomb in Ballynahatty, near Belfast, and in the remains of three men who lived between 3,000 and 4,000 years ago and were buried on Rathlin Island in County Antrim.

      Scientists at Trinity College Dublin used a technique called whole-genome analysis to “read” not the unique characteristics of each individual, but a wider a history of ancestral migration and settlement in the DNA from all four bodies.

  • Health/Nutrition

    • IDF admits spraying herbicides inside the Gaza Strip

      “The aerial spraying of herbicides and germination inhibitors was conducted in the area along the border fence last week in order to enable optimal and continuous security operations,” an IDF Spokesperson told +972 on Sunday.

      Palestinian Agricultural Ministry officials told Ma’an news that farmers said Israeli planes had been spraying their agricultural lands adjacent to the border fence for several days straight. Spinach, pea, parsley and bean crops were reportedly destroyed around the al-Qarrara area in eastern Khan Younis and the Wadi al-Salqa area in central Gaza, according to the report.

      The military spokesperson did not respond to a follow-up question about the destruction of agricultural crops.

    • USDA Whistleblower Accuses Agency of Censorship of Pesticide Research

      Dr. Jonathan Lundgren, an expert on the risk assessment of pesticides and genetically modified crops, worked for the U.S. Department of Agriculture (USDA) Agricultural Research for more than a decade. But when his findings on the ill effects of systemic pesticides and RNAi (a biological process in which RNA molecules inhibit gene expression) on pollinators began to gain traction and visibility, the harassment and punishments did as well.

    • USDA whistleblower launches new bee research effort

      Scientist Jonathan Lundgren believes the USDA retaliated against him because of his research on neonicotinoid insecticides and potential effects on bees and butterflies.

      Neonicotinoids are among the most widely used pesticides. Some research shows they harm bees and butterflies, but the chemical industry disputes much of the research.

  • Security

    • Security advisories for Tuesday
    • Towards (reasonably) trustworthy x86 laptops

      Can we build trustworthy client systems on x86 hardware? What are the main challenges? What can we do about them, realistically? Is there anything we can?

    • Recently Bought a Windows Computer? Microsoft Probably Has Your Encryption Key [Ed: yes, flawed by design]

      One of the excellent features of new Windows devices is that disk encryption is built-in and turned on by default, protecting your data in case your device is lost or stolen. But what is less well-known is that, if you are like most users and login to Windows 10 using your Microsoft account, your computer automatically uploaded a copy of your recovery key – which can be used to unlock your encrypted disk – to Microsoft’s servers, probably without your knowledge and without an option to opt-out.

      During the “crypto wars” of the nineties, the National Security Agency developed an encryption backdoor technology – endorsed and promoted by the Clinton administration – called the Clipper chip, which they hoped telecom companies would use to sell backdoored crypto phones. Essentially, every phone with a Clipper chip would come with an encryption key, but the government would also get a copy of that key – this is known as key escrow – with the promise to only use it in response to a valid warrant. But due to public outcry and the availability of encryption tools like PGP, which the government didn’t control, the Clipper chip program ceased to be relevant by 1996. (Today, most phone calls still aren’t encrypted. You can use the free, open source, backdoorless Signal app to make encrypted calls.)

    • Chaos Computer Club: Europe’s biggest hackers’ congress underway in Hamburg

      Some 12,000 hackers are challenging the power of Google, Facebook and Youtube to filter information and shape users’ view of the world. One of them demonstrated how to hack into VW’s cheating software.

    • Password-less database ‘open-sources’ 191m US voter records on the web

      Austin-based Chris Vickery – who earlier this month found records on 3.3 million Hello Kitty users splashed online – says the wide-open system contains the full names, dates of birth, home addresses, and phone numbers of voters, as well as their likely political affiliation and which elections they have voted in since 2000.

    • The next wave of cybercrime will come through your smart TV

      Smart TVs are opening a new window of attack for cybercriminals, as their security defenses often lag far behind those of smartphones and desktop computers.

      Smart TVs are opening a new window of attack for cybercriminals, as the security defenses of the devices often lag far behind those of smartphones and desktop computers.

      Running mobile operating systems such as Android, smart TVs present a soft target due to how to manufacturers are emphasizing convenience for users over security, a trade-off that could have severe consequences.

    • Nemesis Bootkit Malware the new stealthy Payment Card.

      After I read many articles I got this infos about Nemesis Bootkit Malware:
      – suspected to originate from Russia;
      – infect PCs by loading before Windows starts
      – has ability to modify the legitimate volume boot record;
      – seam to be like another Windows rootkit named Alureon;
      – intercepts several system interrupts to pass boot process;
      – can steal payment data from anyone’s not just targeting financial institutions and retailers;
      – this malware hides between partitions and is also almost impossible to remove;

  • Defence/Police/Secrecy/Aggression

    • Syria anti-Islamic State documentary maker ‘assassinated’ in Turkey

      A Syrian opposition film-maker was gunned down in broad daylight in the Turkish city of Gazientep on Sunday, apparently by Isil supporters.

      Friends said that Naji Jerf, 38, was shot twice in the head after being approached by an unknown car outside of a local restaurant.

    • Why Britishers left India in 1947? explains NSA Ajit Doval

      ncumbent National Security Advisor, had once said that the spark which Netaji Subhas Chandra Bose created within the Indian Army forced Britishers to quit India in 1947.

      In a video posted on Youtube, Doval has given a detailed explanation of the main reason as to why the mighty British Empire which, won the Second World War in 1945, decided to quit India in a hurry.

      On August 22, 1945, Tokyo Radio announced the ‘death’ of Netaji in an air crash in Formosa (now Taiwan) on August 18, 1945, en route to Japan.

      But the crash theory has been rejected by scores of Netaji’s followers and admirers and several claims of the revolutionary leader resurfacing continue to intrigue and divide Indians over the years.

    • Endless War, Undeclared and Undebated

      The Obama administration is waging war all over the world – without congressional authorization

  • Transparency Reporting

  • Environment/Energy/Wildlife

    • Saudi Arabia unveils record deficit as it succumbs to oil price rout

      A brutal sell-off in oil prices has forced Saudi Arabia’s government to post the largest budget deficit in its history, as the state’s revenues have crumbled.

      The country’s deficit rose to 367bn riyals (£66bn), after government spending rose 13pc above officials’ plans in the wake of declining oil prices and a war with Yemen. A Saudi official said that the deficit was “considered an acceptable figure” under the circumstances.

      Stock markets reacted positively to the government’s spending plans, as investors had feared far worse news was to come, anticipating an overshoot well in excess of 13pc. The total deficit stood at 16pc of the economy’s size, while analysts had expected a gap of 20pc. The Tadawul All Share Index made a daily gain of 0.7pc.

    • Here Are 58 Million Reasons to Care About California’s Drought

      The past four years of punishing drought have badly hurt California’s forests. Rain was scarce, the days were too hot, and this year’s wildfire season was the worst anyone has seen in years, burning up nearly 10 million acres across the West. For the first time, a team of researchers has measured the severity of the blow the drought dealt the trees, uncovering potential future destruction in the process. The resulting paper, published Monday in the Proceedings of the National Academy of Sciences, is a rich visual testament to just how much California needs its trees and how close the state is to losing 58 million of them.

    • Fukushima Today

      Throughout the world, the name Fukushima has become synonymous with nuclear disaster and running for the hills. Yet, Fukushima may be one of the least understood disasters in modern times, as nobody knows how to fix neither the problem nor the true dimension of the damage. Thus, Fukushima is in uncharted territory, a total nuclear meltdown that dances to its own rhythm. Similar to an overly concerned parent, TEPCO merely monitors but makes big mistakes along the way.

  • Finance

  • PR/AstroTurf/Lobbying

    • Michael Moore just exploded the right’s biggest lie

      Michael Moore’s new film, “Where to Invade Next,” is sure to generate Oscar buzz. It is already on the short list of 15 documentaries from which the final five nominations will be announced on Jan. 14. But rather than wonder whether Moore will score a second Oscar (his first was for “Bowling for Columbine” in 2002), the question to ask is whether this film can spark a political revolution just in time for the 2016 election.

      “Where to Invade Next” has a wide release set for Feb. 12, which is also Abraham Lincoln’s birthday and the week of the New Hampshire primary. Coincidence? Definitely not.

    • Trump: Muslims Knew About San Bernardino Shooters But Didn’t Report Them

  • Censorship

    • How China Tries To Censor The Whole World
    • Time to take a re-look at Censor Board’s role: Arun Jaitley

      Having witnessed the Central Board of Film Certification (CBFC) getting embroiled in one controversy after the other through the past few months, the government is now considering taking a re-look at the body so as to make it “controversy free”.

    • Amid Censorship Flap, Steinmetz To Discontinue 81-Year-Old School Newspaper

      “School newspapers provide students with a powerful voice and a positive learning experience, and we are committed to providing journalism opportunities to our students,” CPS spokesman Michael Passman said. “Steinmetz High School will continue to offer journalism courses for the foreseeable future, and the Steinmetz Star will remain in operation as an online publication that will continue to serve as a valuable learning opportunity for students.”

    • Kremlin’s Censorship Of Shenderovich Interview Backfiring – OpEd

      But the Shenderovich case may provide the Putin regime with an object lesson because it is obvious that the Kremlin took this action because of Shenderovich’s criticism of Putin himself (openrussia.org/post/view/11565/) and because it is obvious that taking down the interview in one place won’t block the spread of the text.

    • China publisher pulls ‘racy’ Tagore poems translation

      A Chinese publisher has pulled a translation of Indian poet Rabindranath Tagore’s poems after it sparked controversy for racy content.

      The translation of works from one of India’s most famous poets was by Chinese novelist Feng Tang.

      His publisher said on Monday that it was removing the work from sale following the “huge debate” in China’s literary and translation circles.

      Mr Feng has defended his translation, saying a previous version lacked style.

      Tagore, known as the Bard of Bengal and seen as a literary god in India, was the first non-European to win the Nobel prize for literature.

    • Five reasons why we must NOT censor ISIS propaganda

      First of all, censoring ISIS in this way is simply not feasible. We can very well demand that mainstream newspapers and TV news stations limit their coverage of these issues, but that would leave the entire field of discussion to the unregulated areas of the internet, the “blogosphere” and social media. ISIS would still dominate in these areas, except now we will have removed from the discourse those outlets that would be most capable to hold the ISIS narrative to scrutiny.

    • Orwellian model won’t keep the internet free

      Last week brought a positively Orwellian moment to the debate about Internet freedom.

      Chinese President Xi Jinping spoke at a state-organised internet conference in Wuzhen, in Zhejiang province, where he was once party secretary. Xi declared, “As in the real world, freedom and order are both necessary in cyberspace.” He said, “Freedom is what order is meant for, and order is the guarantee of freedom.”

      These slogans are more than just propaganda from the leader of a country with the world’s largest internet censorship operation. Behind them lurks a dangerous ambition.

    • China Invokes UN Decree for Its Right to Censor the Internet

      China’s President Xi Jinping invoked “cyber sovereignty” to describe his country’s right to create its national cyber policy while giving the opening speech at the second World Internet Conference, held in Wuzhen, Zhejiang, on December 16.

      “We should respect the right of individual countries to independently choose their own path of cyber development, model of cyber regulation, and participate in international cyberspace governance on an equal footing,” said President Xi. “No country should pursue cyber hegemony, interfere in other countries’ internal affairs or engage in, connive at or support cyber activities that undermine other countries’ national security.”

    • Not allowing free speech on-campus is dangerous – universities need to defend their right to be offensive

      2015 has been an eventful year for freedom of speech. In January, #JeSuisCharlie was a global trend championing freedom of expression, lack of censorship, and the right to offend. Yet, as the year draws to a close, it seems the Facebook generation is becoming more and more suppressed.

      Once upon a time, universities were bastions of free speech, where world leaders would debate with fresh-faced 18-year-olds who were determined to save the planet. Once, just about anything could be discussed in the name of free speech. But, this year, there have been countless examples of speakers being banned, societies being stopped, and student media being censored, all in the name of “protecting students.”

    • Syria, France Deadliest Countries for Journalists

      The Committee to Protect Journalists says 2015 was one of the deadliest years on record for members of the press worldwide, with 69 journalists killed on-assignment. According to the CPJ, 2015 was the sixth year out of the last ten (and eighth since 1992) in which more than 60 journalists were killed in the line of duty—a figure that includes those targeted for their profession as well as those killed in combat, crossfire or while covering other assignments deemed dangerous.

    • Reading Everything Aaron Swartz Wrote

      It was cowardly, disrespectful, and it isolated Aaron again in death. He was The Boy, a tragic waste, not a murdered comrade or a martyr. Saying he was misguided served as an excuse for not being at his side.

    • Does The US Really Want A North Korean Internet?

      With all of the news about the holidays, one story you might have missed yesterday is that China passed with little fanfare its new antiterrorism law that bears substantial resemblance to proposals currently under review in the US and UK that would require backdoors or other weakened measures to allow encrypted communications to be secretly monitored by governments.

      The Chinese law requires that “telecommunications and Internet service providers should provide technical interfaces and technical support and assistance in terms of decryption and other techniques to the public and national security agencies in the lawful conduct of terrorism prevention and investigation.” It is remarkably similar to the wording of a UK proposal that would require companies to offer the government “permanent interception capabilities … [including] the ability to remove any encryption” and similar to calls by US intelligence officials for the ability to decrypt civilian communication.

      On the surface such proposals seem highly desirable: the ability to monitor and disrupt terrorist and criminal communications in order to protect life and ensure national security. The problem, as I pointed out last week, is that there is no universal definition of “terrorism” or “national security threats.” In fact, one of the focal points of the Chinese online censorship apparatus is the removal of material relating to protests and mass organization, which the government views as a threat to the stability and well-being of the nation.

      [...]

      North Korea is one of the few countries to take this model of a safe and secure internet to its logical conclusion, creating its own walled-off private version of the internet where only a small number of approved websites are accessible. The government even created its own operating system called Red Star OS, designed for total government surveillance. Yesterday two German researchers offered the latest in-depth look at the functioning of this operating system custom built for the world of a surveillance state.

    • Those Demanding Free Speech Limits to Fight ISIS Pose a Greater Threat to U.S. Than ISIS

      In 2006 – years before ISIS replaced Al Qaeda as the New and Unprecedentedly Evil Villain – Newt Gingrich gave a speech in New Hampshire in which, as he put it afterward, he “called for a serious debate about the First Amendment and how terrorists are abusing our rights–using them as they once used passenger jets–to threaten and kill Americans.”

    • Chinese president Xi Jinping blogged for the first time—and 48,000 people commented

      China’s biggest microblogging site, Weibo, is not unfamiliar to foreign head of states. Indian prime minister Narendra Modi, UK prime minister David Cameron, Venezuelan president Nicolás Maduro—all have opened accounts on the site and have interacted with readers in Chinese. But China’s own leaders are more reluctant to engage with online audiences.

      Chinese president Xi Jinping’s limited number of social media contributions include a selfie with Cameron and Manchester City striker Sergio Aguero during Xi’s state visit to the UK in October, while Chinese premier Li Keqiang indulged Modi in a joint selfie, said to be Li’s first, at Beijing’s Temple of Heaven in May. Neither of these were posted by the Chinese leaders on Weibo. Instead, they surfaced on Twitter—a social media platform blocked by China’s elaborate censorship machine.

      But finally, on Dec. 25, during his visit to the headquarters of the People’s Liberation Army Daily—a mouthpiece newspaper of the Communist Party and the army—Xi crafted his first post on Weibo. It’s the first Weibo message from any of China’s senior officials, as far as we can tell. Xi wrote the message personally, according to state media.

    • Thai media decide junta chief no laughing matter

      Every New Year Thailand’s top political journalists traditionally come up with satirical nicknames for the government and senior ministers. But this year they will forego the pleasure, having decided the junta is no laughing matter.

      The occasion is usually a rare moment of light relief for reporters covering the febrile world of Thai politics, in a country which has witnessed a string of military coups, violent street protests and toppled governments – and where defamation is a criminal offence.

    • Was 2015 a Bad Year for Campus Free Speech? Let’s Ask the Experts

      Are easily-offended students and their allies within the university bureaucracy ushering in a new era of censorship on American college campuses? Even President Obama is worried that excessive political correctness is stifling legitimate debate at universities.

    • The militarization of the press in Syria

      Ahmed Abu al-Hamza, “Software” as he was known by his friends, stood behind the camera on November 6 as a gunman explained how rebel forces took Tel Sukayk, a strategic hilltop north of Hama, from government forces. Suddenly the camera’s sound recorder picked up the faint thud of a mortar shell firing in the distance. A few seconds of confusion then turned to horror as the shell exploded right in front of the camera, killing Abu al-Hamza and the rebel fighter and injuring several others.

    • Dr. Timaree: How to be mindful, ethical when it comes to porn

      Censorship, though, is not an effective way of fixing a social problem.

    • Why Latin America Needs PEN

      The Mexican way of death is unique, issuing from a symbiosis of indigenous beliefs and practices with Catholic rituals. To celebrate the return of the souls of the dead every November, Mexicans set up altars laden with the departed’s favorite food and drink and sugar skulls emblazoned with that person’s name, while images of Christ, the Virgin Mary and saints flank a photo of the deceased. Marigolds festoon the altars and the graves where relatives gather to share a meal and news of the past year with the visiting spirits.

      [...]

      Journalists are not only pursued by organized crime in all its forms, but also by local, state and federal governments, police forces, the military, and even by people whose job it is to impart justice. Not only must the federal government guarantee the safety of journalists, it must also resolve pending cases and punish the criminals, even if they work in government. Otherwise, as time passes most of the cases become enveloped in a tangle of conflicting lines of investigation where the real one is lost or the victim is morphed into the guilty party. A journalist friend recently told me about how when dealing with a notorious political crime, officials often present a new line of inquiry every once in a while which leads the investigation further away from reality, until it reaches a point where nobody knows anything for sure, a kind of legal shell game with the truth.

    • Pirate Bay’s Suspended Domain Names Spell Trouble for File-Sharing Sites

      Earlier in December, file-sharing site the Pirate Bay went down due to a problem regarding the registration of the thepiratebay.org domain — a seemingly innocuous hitch. But then, a week later, thepiratebay.com and several other of the site’s domain properties, including piratebrowser.com, piratebrowser.net, and piratebrowser.org — which link to the Pirate Bay’s TOR-based anti-censorship tool — also went down, suspended for similar violations of ICANN registration policy. And though thepiratebay.org was quickly restored after a transfer from EuroDNS to a new registrar, the other domains remain suspended.

    • YouTube dumps Holocaust memory

      “Why do I see beheadings and bestiality on YouTube, but the story of an aged Holocaust survivor must be removed? Is there an agenda going on? If so, what is it?” she asked. “This ministry is being targeted for some unexplainable reason. Is it because we tap in Michele Bachmann regularly? I do not hear of other ministries undergoing this kind of an exam and retribution.”

    • George Washington University apologizes for censorship of Palestinian flag

      Earlier this month, six weeks after receiving a “Warning Letter” for hanging a Palestinian flag out his dormitory window, George Washington University (GWU) student Ramie Abounaja obtained a formal apology from university president Steven Knapp for the attack on his free speech rights. The apology came after an implied threat of legal action against the university.

    • Silencing Students: The 8 Most Loathsome Campus Censors of 2015

      Every year brings new examples of ruthless college administrators trampling the free expression rights of students and faculty, and 2015 was no different. Here are eight of the most notable campus censors I wrote about this year.

    • Students of color frustrated with campus climate

      Multicultural student groups are calling for more inclusion at AU after a rash of anonymous social media posts and posters targeting minorities have appeared on and around campus.

      Yik Yak is a smartphone application that allows smartphone users to make posts anonymously and view posts made by those within close proximity to them. Racist posts on the platform prompted University forums last year and inspired an Undergraduate Senate discussion about race, the Eagle previously reported. In recent months, users have continued to write discriminatory comments in the the app around campus.

    • Chinese filmmaker claims victory in online film censorship lawsuit

      Beijing-based filmmaker Fan Popo, whose gay rights documentary was removed from Chinese video streaming websites, has claimed victory in a lawsuit over government censorship despite the courts ruling that regulators were not to blame.

      In its verdict released last week, Beijing’s No. 1 Intermediate People’s Court found censors had not ordered his documentary “Mama Rainbow” to be taken down from prominent streaming websites Youku, Tudou and 56.com.

    • Artists oppose Erdogan’s censorship

      Turkey welcomes private investors in the field of art and culture, but many artists feel oppressed by their government. Beyond censorship and commercial speculation, an alternative art scene offers some hope.

  • Privacy

  • Civil Rights

    • DOJ’s Equitable Sharing Program Takes $1.2 Billion Hit, Much To Dismay Of Asset Forfeiture-Abusing Law Enforcement Agencies

      Good news (of sorts) on the asset forfeiture front: the same budget bill that delivered us into the hands of CISA also helped “rob” the nation’s highwaymen of $1.2 billion in equitable sharing funds.

    • Federal judge: Drinking tea, shopping at a gardening store is probable cause for a SWAT raid on your home

      In April 2012, a Kansas SWAT team raided the home of Robert and Addie Harte, their 7-year-old daughter and their 13-year-old son. The couple, both former CIA analysts, awoke to pounding at the door. When Robert Harte answered, SWAT agents flooded the home. He was told to lie on the floor. When Addie Harte came out to see what was going on, she saw her husband on his stomach as SWAT cop stood over him with a gun. The family was then held at gunpoint for more than two hours while the police searched their home. Though they claimed to be looking for evidence of a major marijuana growing operation, they later stated that they knew within about 20 minutes that they wouldn’t find any such operation. So they switched to search for evidence of “personal use.” They found no evidence of any criminal activity.

    • Italian president reduces sentences in CIA kidnapping case

      Italy’s president has shaved two years off the sentence of a former CIA base chief convicted in absentia in the 2003 extraordinary rendition abduction of an Egyptian terror suspect.

      With the decree, announced Wednesday night by the presidential palace, President Sergio Mattarella reduced to seven from nine years Robert Seldon Lady’s sentence. Mattarella also wiped out the three-year sentence handed down by a Milan court to another US defendant convicted in absentia, Betnie Medero.

    • Former CIA chief’s rendition sentence reduced in Italy
    • Italian president offers pardons in CIA rendition convictions

      Italy has partially pardoned the former CIA Milan station chief Robert Seldon Lady who was convicted for his role in the kidnapping of an Egyptian Muslim cleric under the U.S. “extraordinary rendition” programme.

      Another U.S. citizen found guilty in the case, Betnie Medero, was also granted a pardon by Italian President Sergio Mattarella, his office said in a statement.

    • From the Shadows of the Cold War: the Rise of the CIA

      The longest running director of the CIA (1952-1961), Dulles helped coordinate extremely bloody coups throughout the world. Not surprisingly, he comes off as a nasty piece of work. He and his brother John Foster Dulles both worked with the prestigious Wall Street firm Sullivan and Cromwell, which made a fortune representing cartels that were part of the Nazi war machine (John Foster Dulles went on to become Eisenhower’s Secretary of State). The Dulles brothers were quite cozy with Nazi higher ups in the ’30s and remained staunch apologists for Hitler well into the the ’40s.

    • Sudanese security enjoys “good relations” with the CIA: NISS chief

      The director of Sudan’s National Intelligence and Security Services (NISS) Mohamed Atta said his agency maintains “good ties” with the US Central Intelligence Agency (CIA).

    • Trump praises Putin after being told he kills political opponents

      “I’m saying when you say a man has killed reporters, I’d like you to prove it”, Trump argued. But, in all fairness to Putin, you’re saying he killed people. In response, Trump said he appreciated “when people call you brilliant” and that “it’s always good, especially when the person heads up Russian Federation”.

      McCain’s comments come after Putin complimented Trump last week, and Trump responded it was an “honor” to receive the compliment. “Not a bad thing”, Trump said. The Committee to Protect Journalists reports Russian journalists experience intimidation and censorship.

      “I think I’ll win the Hispanic vote”, Trump told reporters after touring the bridge.

    • Russia can only use the United States as an excuse for so long

      Sergei Guriev, Russia’s most prominent free market economist, left Moscow in 2013 for Paris, in fear of his liberty. He had publicly supported dissidents, criticized the administration’s policies, was an active and committed liberal, in politics as in economics. He produced, earlier this year, a 21st century equivalent of Niccolo Machiavelli’s “The Prince”: a blueprint of how the modern autocrat rules, and remains.

      Unlike the Florentine, though, Guriev isn’t recommending a course of action, he’s describing it; and he doesn’t believe it will be good for the state, but ruinous. If, in this and other writings and interviews, he’s right about the nature of Russia’s governance, his country is in for a bad crash. And when Russia in its present condition crashes, the world will shake.

    • Why Russia Can Only Go Backward

      The Public Opinion Foundation conducted a survey this month asking Russians two questions: “What was the main event of the year in Russia?” and “What was the main global event of the year?”

      Noteworthy is that fully 40 percent of the respondents had trouble answering either question. And the most brutal political murder in modern Russia — the assassination of my father — did not even figure in the responses. State-controlled television hardly mentions it, with the exception of the first few days after the killing, when commentators spoke of him in contemptuous tones.

    • How Fox News’ Primetime Lineup Demonized Black Lives Matter In 2015

      In 2015, Fox News’ three primetime hosts engaged in a smear campaign against the Black Lives Matter movement, fearmongering about the alleged threat they pose to law and order and hyping racist canards aimed at discrediting the movement’s calls for justice.

      The Black Lives Matter movement — which emerged after the 2013 shooting death of black teenager Trayvon Martin — became a regular news fixture in 2015 following the high-profile deaths of several unarmed black civilians at the hands of police officers. The movement brought national attention to the issues of police brutality and racial disparities in criminal justice. One group associated with the movement introduced a set of concrete policy solutions, and the movement as a whole became a politically relevant force amid the 2016 presidential race.

    • WaPo Tallies Police Killings–but Holds Back Some of the Numbers That Count

      “The kind of incidents that have ignited protests…represent less than 4 percent of fatal police shootings”: That sure sounds like an attempt to play down the number, doesn’t it? Particularly since the write-up never presents the raw number for fatal police shootings of unarmed African-Americans in 2015—which is 37—or the more comprehensive number of all unarmed civilians shot and killed: 90. Those numbers can be found on a graphic that accompanied the story in the paper’s print edition, and in an interactive feature online–but are nowhere to be found in the Post‘s own article on its project. (“Just 9 percent of shootings involved an unarmed victim,” a sidebar accompanying the graphic began—that word “just” indicating that we should read that as “not so many.”)

      And the Post‘s “meanwhile,” juxtaposed against “incidents that have ignited protests,” implies that the categories that follow would not inspire protest: those killed “wielding weapons,” who were “suicidal or mentally troubled,” or who “ran when officers told them to halt.”

    • Egypt’s censorship authority raid Merit Publishing house in Cairo

      Egypt’s censorship authority raided and searched on Tuesday afternoon Merit Publishing house in downtown Cairo without providing any reason, owner Mohamed Hashem wrote on his Facebook page.

      Staff member Mohamed Zein, 23, was arrested during the raid then released a few hours later.

    • Egypt Raids 2 Major Independent Cultural Institutions In 2 Days

      Egyptian authorities have raided two pillars of the independent arts and culture scene in Cairo over the past 48 hours.

    • TSA Says It Will Stop Accepting Driver’s Licenses From Nine States

      The last time we took notice of the Transportation Security Administration (TSA), it was to inform you that the unpopular, expensive, and ineffectual outfit had decided it could force travelers on domestic airline flights to go through full-body scanners. Previously, TSA had allowed folks to submit instead to a full-body pat-down.

    • Who Needs A No-Fly List When You Can Just Ground 91 Million Citizens?

      For the residents of Alaska, California, Illinois, Missouri, New Jersey, New Mexico, South Carolina, Minnesota and Washington (along with American Samoa, Puerto Rico, Guam and the Virgin Islands), this means their ID cards are perfectly legal within those states, but only as long as they stay in those states. (And, apparently, never need to enter a government building — like, say, to acquire a new, compliant ID card).

    • Human Research Loopholes: Alive and Well

      In one of the darkest chapters in medical ethics, the United States government ran an experiment from the 1930s to the 1970s in which it withheld treatment and medical information from rural African-American men suffering from syphilis. The public uproar generated by the Tuskegee Syphilis Study eventually resulted in regulations restricting government-supported research testing on humans. These regulations are called the “Common Rule,” and they are right now up for their first full update.

      The Common Rule, also known as the “Federal Policy for the Protection of Human Subjects,” is supposed to affirmatively protect us from the abuses of the future. However, the proposed regulation is lousy with loopholes, including ones that could exempt tracking online behavior and experiments related to intelligence activities.

    • Hospital Refuses Pregnancy-Related Care Again Because of Religious Directives

      Today we filed a lawsuit challenging Dignity Health’s use of religious directives to deny basic reproductive health care to its patients. Filed on behalf of patient Rebecca Chamorro and Physicians for Reproductive Health, the suit argues that withholding pregnancy-related care for reasons other than medical considerations is illegal in California.

    • Sadistic Cops Make K-9 Maul Unarmed Suicidal Teen – Caught Planning and Celebrating It in Texts

      Months after the Herald-Tribune exposed the North Port Police Department for routinely commanding their K-9 dogs to attack people without provocation, the department has done nothing to address the problem. In fact, it defends its officers even in the most egregious cases, including the mutilation of unarmed juveniles.

    • Extended Interview: Remembering Haskell Wexler, 93, Legendary Cinematographer & Activist

      In Part 2 of our look at the life and work of Haskell Wexler, we air clips from “Rebel Citizen,” a new documentary about his life, and speak to the film’s director, Pamela Yates. Wexler is perhaps best known for his 1969 film, “Medium Cool,” which captures the upheaval surrounding the 1968 Democratic National Convention in Chicago. He won two Academy Awards for cinematography in “Who’s Afraid of Virginia Woolf?” and “Bound for Glory,” about folk singer Woody Guthrie. His documentaries tackled political issues including the Southern Freedom Riders of the 1960s, the U.S. government’s destabilization of Nicaragua, U.S. atrocities in Vietnam, and torture under the U.S.-backed junta in Brazil.

  • Internet/Net Neutrality

  • Intellectual Monopolies

    • Stupid Patent Of The Month: Microsoft’s Design Patent On A Slider

      For the first time ever, this month’s Stupid Patent of the Month is being awarded to a design patent. Microsoft recently sued Corel for, among other things, infringing its patent on a slider, D554,140, claiming that Corel Home Office has infringed Microsoft’s design.

    • Trademarks

      • Canada Too Has An Issue With Abitrary Applications Of Morality In Trademark Applications

        In our recent discussion about the delightfully vulgar filing by the Washington Redskins in an effort to point out the arbitrary application of morality by the government to trademark law, the point in the filing was driven home by just how many similarly vulgar and offensive terms the USPTO has been happy to sanctify with a valid trademark. Perhaps some of you out there thought that this was a uniquely American problem, something resulting from our overabundance of political correctness. It’s not. A case in Canada over the trademark application for “Lucky Bastard Vodka” shows this quite well. It also shows the inherent problem in trying to have a government institution apply morality to business in this way.

      • Saskatoon distillery fights feds over ‘scandalous’ trademark

        A Saskatoon company’s attempt to trademark its flagship vodka has turned into a four-year battle with the federal government over the definition of “bastard.”

        In 2011, LB Distillers applied to the Canadian Intellectual Property Office (CIPO) to register “Lucky Bastard vodka” as a trademark. About eight months later, the agency responsible for trademarks, patents and copyright replied.

        “The examiner came back and said it was immoral, scandalous and obscene, and that the general population of Canada would agree that it was an immoral name,” LB Distillers co-owner Cary Bowman said.

    • Copyrights

      • The DMCA Has Delivered Us Into The Hands Of The Proprietary Internet Of Disconnected Things

        The phrase “Internet of Things” suggests connection. The problem is there’s nothing financially motivating about interconnectedness. Manufacturers of connected devices would prefer homogeneity, which leads to actions like Philips’ which recently pushed a firmware update that locked competitors’ bulbs out of its Hue “smart” lighting fixtures. Sure, it rolled back the update and (mostly) allowed owners to use bulbs they had already purchased, but it was also suggested in the same quasi-apology that the company would rather limit the options available to its purchasers in the future, funneling them through its “friends of Hue” program.

      • Book Publisher Has No Idea How Google Works But Pretty Sure It Could End Piracy If It Tried

        Here’s the stupidest thing on piracy you’re going to read today. Or this month. Maybe even this whole holiday season. Rudy Shur, of Square One Publishers, has a problem with piracy, which he thinks is actually a problem with Google.

      • 50 Cent Files Stupid, Hypocritical Lawsuit Over Another Rapper’s ‘Theft’ Of His Song In A Mixtape

        I can see why 50 Cent and his lawyers might feel this lawsuit is a good idea: 50 Cent is in the middle of bankruptcy proceedings. On top of that, the rapper owes $7 million to the plaintiff in a sex tape lawsuit — one that also involves rival rap star, Rick Ross. (The woman in the sex tape is the mother of one of Ross’ children. 50 Cent can be heard taunting Ross in the recording.) 50 Cent is also engaged in a $75 million lawsuit against his former legal team, so there’s bills to be paid there as well.

        50 Cent’s lawsuit takes aim at the rap industry’s standard operating procedure: mixtapes. Rick Ross rapped over 50 Cent’s “In Da Club” in his latest mixtape, much as thousands of rappers have rapped over the beats of others on mixtapes since the early days of the genre. It’s an accepted — if quasi-illegal — practice. Everyone raps over everyone else’s beats on mixtapes, almost all of which are given away as promotional tools.

12.28.15

EPO a “European Institution Which Does Not Fall Under EU Law”

Posted in Europe, Patents at 6:45 pm by Dr. Roy Schestowitz

Petition regarding EPO

Summary: Highlighting a soon-to-end petition which bemoans the bizarre state of affairs at today’s EPO and its controversial impact on Europe

THE previous post focused on today’s talk which led us to the following petition [PDF], sent to us by several people almost simultaneously. We wish to bring it to the attention of EPO examiners and generally, as so many people are affected by the EPO, any EU citizen who is eager to take action to defend Europe’s interests and the interests of science and technology, not conglomerates like Microsoft. Watch what kinds of patents Microsoft is getting and using aggressively, based on this latest rant from the EFF (just published). To quote the EFF:

For the first time ever, this month’s Stupid Patent of the Month is being awarded to a design patent. Microsoft recently sued Corel for, among other things, infringing its patent on a slider, D554,140, claiming that Corel Home Office has infringed Microsoft’s design.

[...]
Microsoft’s patent claims against Corel are unsurprising in light of how much money is potentially at stake. If Corel is found to infringe even one of Microsoft’s design patents through even the smallest part of Corel Home Office, current Federal Circuit law entitles Microsoft to all of Corel’s profits for the entire product. Not the profits that can be attributed to the design. Not the value that the design adds to a product. All of the profit from Corel Home Office.

We previously wrote about the EPO’s special relationship with Microsoft, whereupon the EPO sent several threatening letters to me (all of them about Microsoft and the EPO). What are they so desperate to hide? They never withdrew these threats. █

Today’s Chaos Computer Club (CCC) Talk: EU Software and Business Method Patents: Call for Action

Posted in Europe, Patents, Videos at 6:18 pm by Dr. Roy Schestowitz

Summary: Today’s talk about software patents in Europe and a petition calling for action to stop these (again)

AS EPO examiners probably know by now, despite software patents (“as such,” as per Brimelow) not being legal in Europe, the EPO does occasionally entertain patent applications that pertain to software, even if it euphemistically names them CII to nymshift and add smoke to the debate. This can devastate famous European companies.

A CCC talk which was mentioned here over the weekend is now available for viewing online. It was presented earlier today and we were hoping to find a static file (Ogg/WebM preferable) as soon as possible in order to share information about software patents in Europe. EPO workers might wish to watch this in order to better understand how the management dodges the rules. The above video is from YouTube (the speaker has just sent it to us) and the MP4 version is already mirrored in the FFII’s Web site (1.1GB file in a heavily-patented multimedia format, ironically enough).

“A CCC talk which was mentioned here over the weekend is now available for viewing online.”“Henrion and colleagues are on at 32C3 now,” a reader wrote to us earlier, so some people were evidently streaming it live. This reader of ours tracked down the petition mentioned at the end of the talk. “It seems risky,” the reader said, as more people now realise that the EPO is out of control and UPC needs to be shunned. “According to the petitioner,” says the European Parliament’s Web site, “the European Patent Office is an international European institution which does not fall under EU law. He proposes that the EU contacts the EPO in order to conclude an interinstitutional agreement which would enable Members of the European Parliament to address parliamentary questions to the EPO and improve the parliamentary supervision of the EPO. The petitioner also asks the European Commission to harmonise national substantive patent law so that patent law becomes part of the acquis communautaire and the major differences which currently exist between the national patent law systems are removed. The EPO cannot deal with these differences, but has become the de facto harmoniser of patent law owing to its position as the provider of patents. According to the petitioner, the current situation is lacking a legislator and the development of patent law is concentrated in the hands of the executive and the judiciary. This is contrary to the separation of powers. The lack of balance between the powers means that it is difficult to respond to the fact that patent law affects areas other than that of EU policy, such as industrial policy, European standardisation and research policy. Moreover, the petitioner believes that the lack of harmonisation of substantive patent law weakens the negotiating position of the EU in matters relating to patent law with respect to third parties (WIPO, SPLT, TRIPS+, etc.).”

Incidentally, earlier today we found more articles about India rejecting software patents (for now…)

An article by RNA, who call themselves “Intellectual Property Attorneys” (it’s not hard to guess whose side they’re on), was published earlier today, around the same time of an article with the title “The Murky Waters Of Software Patents”.

“The one side isn’t “patent supporters” but mostly large corporations.”“India has announced a hold on plans to clarify the software patent process within the country,” wrote the reporter of the latter article, “a move that has both critics and supporters up in arms. In one camp, patent supporters argue that the investment in a new piece of software has to be protected both financially and by reputation against cheap imitators, while critics of software patents claim that software patents do nothing but lead to expensive litigation to fight infringement claims.”

The one side isn’t “patent supporters” but mostly large corporations. They’re not even Indian. They support not patents but software patents in India, which makes no sense for this economy that thrives in software and isn’t wealthy enough to withstand legal actions from aboard (mostly north America, obviously). That’s the kind of thing which UPC passage would enable, attracting all sorts of patent trolls and bring them to Europe with their software patents (that’s what trolls typically use for extortion purposes, where small companies are attractive targets that cannot afford legal battles and may quickly settle instead).

Learn from the mistakes of patent scope at the USPTO (whose official site is reportedly still not fully working today, based on IP Kat‘s comments, even 4 days after the outage). █

Links 28/12/2015: Corporate Media Associates Linux With N. Korea and Abuses, Linux 4.4 RC7 Released

Posted in News Roundup at 3:58 pm by Dr. Roy Schestowitz

GNOME bluefish

Contents

GNU/Linux

Free Software/Open Source

  • SaaS/Big Data

    • On the OpenStack Scene, Get Credentials to Get Hired

      As part of its efforts to grow the OpenStack talent pool and global community, the OpenStack Foundation has announced a new professional certification program that is meant to provide a baseline assessment of knowledge and be accessible to OpenStack professionals around the world. Some of the first steps in advancing the program are taking place now, and other companies are also advancing OpenStack certification plans. Here is a sampling of the educational opportunities.

  • Pseudo-/Semi-Open Source (Openwashing)

  • BSD

  • Licensing

    • What topped the GitHub charts in 2015

      It’s been a year of open-source projects. Both enterprises and startups have been releasing their code into the wild as a way to grow their capabilities. It’s not just the code that’s important; it’s the programmers and contributors that can get their hands on it, alter it, fix it, and make it better.

    • Best of Opensource.com: Law
    • Answer to a Frequently Asked Question

      Q: Which open source license is best?

      A: Unlike bilateral copyright licenses, which are negotiated between two parties and embody a truce between them for business purposes, multilateral copyright licenses — of which open source licenses are a kind — are “constitutions of communities”, as Eben Moglen and others have observed. They express the consensus of how a community chooses to collaborate. They also embody its ethical assumptions, even if they are not explicitly enumerated.

  • Openness/Sharing

  • Standards/Consortia

    • Switzerland Wants a Single, Universal Phone Charger by 2017

      Apple’s Lightning cable cartel be damned: Switzerland is moving forward with a plan for a single, universal phone charger across the country, standardizing phone chargers across the board. While the exact standard hasn’t been mentioned yet, it wouldn’t be hard to guess the standard: Micro USB, used across phone platforms, most especially Android, which has a gigantic chunk of the cell phone market worldwide.

Leftovers

  • Security

    • Security Researchers Offer Warnings About Hackable Railroads

      The well-being of critical infrastructure and transportation has long been the elephant in the room when it comes to cybersecurity: plenty of researchers have warned about the possibility of attacks on power-plants, the national grid, and, more recently, even the emergence of internet connected cars.

      Now, researchers are warning of the gaping holes in the security of railroad systems. On Sunday at Chaos Communication Congress, a security, arts and politics conference held annually in Hamburg, Germany, members of the SCADA StrangeLove collective presented a long list of problems with railroad systems that attackers could exploit.

    • DLL Hijacking Just Won’t Die

      To make a long and complicated story short, a bad guy who exploits this vulnerability places a malicious DLL into your browser’s Downloads folder, then waits. When you run an installer built by an earlier version of NSIS from that folder, the elevation prompt (assuming it runs at admin) shows the legitimate installer’s signature asking you for permission to run the installer. After you grant permission, the victim installer loads the malicious DLL which runs its malicious code with the installer’s permissions. And then it’s not your computer anymore.

    • CA Council to Improve Internet Certificate Security in 2016

      At the heart of much of the Internet’s security is the use of Secure Sockets Layer/Transport Layer Security (SSL/TLS), which provides encryption for data in motion. Certificate Authorities (CAs) are the trusted entities that issue TLS certificates, and as a group, the CAs are gearing up for big year in 2016, with multiple efforts designed to improve the security of the Internet.

    • Backspace Flaw Enables Linux Zero-Day Attack
    • Monday’s security updates

  • Environment/Energy/Wildlife

    • Thousands More Homes Face Flooding Threat

      Thousands of homes are being evacuated in York after “unprecedented” levels of rain caused the Foss and Ouse rivers to burst their banks and the city’s flood barrier to be lifted.

    • UK flooding: Government rejected warnings of high flood risk from own advisers

      Minsters were warned by the Government’s own climate change advisers that they needed to take action to protect the increasing number of homes at high risk of flooding – but rejected the advice.

      The decision not to develop a comprehensive strategy to address increased flood risk came in October just a few weeks before the flooding in Cumbria before Christmas and the most recent flooding in Lancashire and Yorkshire.

    • Why Engineers Can’t Stop Los Angeles’ Enormous Methane Leak

      One of the biggest environmental disasters in US history is happening right now, and you’ve probably never heard of it.

      An enormous amount of harmful methane gas is currently erupting from an energy facility in Aliso Canyon, California, at a startling rate of 110,000 pounds per hour. The gas, which carries with it the stench of rotting eggs, has led to the evacuation 1,700 homes so far. Many residents have already filed lawsuits against the company that owns the facility, the Southern California Gas Company.

  • Finance

  • PR/AstroTurf/Lobbying

    • Bill O’Reilly Had A Terrible 2015

      Numerous Journalists Took Apart O’Reilly’s Falklands War Tales. O’Reilly has repeatedly attempted to bolster his reporting credentials by claiming over the years that he reported “in the Falklands” during the 1982 Falklands War. A Mother Jones exposé, however, found that O’Reilly fabricated his reporting resume and his former colleagues said he was actually 1,200 miles away in Buenos Aires. O’Reilly also claimed to have reported on a 1982 Buenos Aires protest in which “many were killed,” but numerous journalists who reported from the scene and a historian disputed his story. Furthermore, O’Reilly claimed to have helped an injured CBS photographer during the protest, but his colleagues have no recollection of that incident.

  • Censorship

    • True or false, decide through self-censorship, says minister

      He said self-censorship was important to see that the information they received and believed were valid and not detrimental and disruptive to harmony in society and country.

    • Public should practice self-censorship on social media, says minister

      Communications and Multimedia Minister Datuk Seri Dr Salleh Said Keruak today called on the people to use their power of self-censorship to reject or accept any information posted on the social media.

      He said self-censorship was important to see that the information they received and believed were valid and not detrimental and disruptive to harmony in society and country.

      “The important thing is, we should not be confused between news and views. Views are people’s own and not necessarily accurate and our views could differ from each other’s. But news contain facts, the veracity of which are verified before being disseminated.

    • Anonymous Attacks Asia Pacific Telecommunity website to protest Internet censorship

      The global hacktivist group, Anonymous has now turned its eyes to the varying degrees of censorship being practised in Asia. The Asia Pacific Telecommunity website (apt.int) has not only been hacked by members of the Anonymous hacker collective, and they also have got entry to the site’s admin panel (running Drupal), and also have been able to get their hands on a database dump.

    • Anonymous Hacks Asia Pacific Telecommunity Against Internet Censorship in Asia

      Anonymous hacker collective has attacked the official website of Asia Pacific telecommunity and defaced it in protest against growing plans for internet censorship in Asia.

      The hackers gained access of the website’s admin panel (running Drupal) and from there, leaked all the data stored on the website along with defacing the site with one of their own pages.

    • Court Orders Shutdown of Libgen, Bookfi and Sci-Hub

      A New York District Court has granted Elsevier’s request for a preliminary injunction against several sites that host academic publications without permission. As a result the site’s operators are now ordered to quit offering access to infringing content, while the associated registries must suspend their domain names.

    • Amidst censorship row, two “porn-coms” are releasing in India in January

      India’s 2016 film calendar will begin on a controversial note. Two Bollywood adult comedies starring the same actor are releasing within a week of each other in January. Both Maastizaade and Kya Kool Hain Hum 3 are releasing after facing considerable objections from India’s censor board.

    • The Splinternet: A New Era of Censorship, Surveillance, and Cyberwarfare

      For more than a decade, the internet has become a seemingly borderless land of free flowing information. It began as a not so open U.S. military data system decades ago, but it evolved over time into the public digital domain it has become.

    • On the Aggressive, Hilarious Theorizing in ‘Censorship Now!!’
    • Harvard Law Review Freaks Out, Sends Christmas Eve Threat Over Public Domain Citation Guide

      In the fall of 2014, we wrote about a plan by public documents guru Carl Malamud and law professor Chris Sprigman, to create a public domain book for legal citations (stay with me, this isn’t as boring as it sounds!). For decades, the “standard” for legal citations has been “the Bluebook” put out by Harvard Law Review, and technically owned by four top law schools. Harvard Law Review insists that this standard of how people can cite stuff in legal documents is covered by copyright. This seems nuts for a variety of reasons. A citation standard is just an method for how to cite stuff. That shouldn’t be copyrightable. But the issue has created ridiculous flare-ups over the years, with the fight between the Bluebook and the open source citation tool Zotero representing just one ridiculous example.

  • Privacy

    • Why ownCloud’s CEO isn’t worried about the death of Safe Harbor [Ed: Katherine Noyes should be smarter than that and not quote Microsoft propagandist Enderle]
    • Windows 10: Microsoft hits new low with ‘Upgrade Now’ or ‘Upgrade Tonight’ pop-up [Ed: how to push spyware]

      The latest pop-up message to consumers, outed on Reddit, removes the explicit option to opt out of the upgrade, instead offering two options: ‘Update Now’ or ‘Update Tonight’. Simply closing the box will make it go away (we’re still trying to ascertain for how long) but it seems that this is a deliberate attempt to prey on the less tech savvie.

    • The Tax Sleuth Who Took Down a Drug Lord

      “I’m not high-tech, but I’m like, ‘This isn’t that complicated. This is just some guy behind a computer,’” he recalled saying to himself. “In these technical investigations, people think they are too good to do the stupid old-school stuff. But I’m like, ‘Well, that stuff still works.’ ”

      Mr. Alford’s preferred tool was Google. He used the advanced search option to look for material posted within specific date ranges. That brought him, during the last weekend of May 2013, to a chat room posting made just before Silk Road had gone online, in early 2011, by someone with the screen name “altoid.”

    • China passes law requiring tech firms to hand over encryption keys

      Under the guise of counter-terrorism, the controversial law is the Chinese government’s attempt to curtail the activities of militants and political activists. China already faces criticism from around the world not only for the infamous Great Firewall of China, but also the blatant online surveillance and censorship that takes place. This latest move is one that will be view very suspiciously by foreign companies operating within China, or looking to do so.

    • New Chinese law takes aim at encryption

      A new law passed by China’s Parliament on Sunday requires technology companies to assist the government in decrypting content, a provision that the country maintains is modeled after Western law.

      A new law passed by China’s Parliament on Sunday requires technology companies to assist the government in decrypting content, a provision that the country maintains is modeled after Western law.

      ISPs and telecommunication companies must provide technical assistance to the government, including decrypting communications, for terrorism-related investigations, according to Xinhua, China’s official news agency.

    • China Using US Encryption Fight To Defend Its New Encryption Backdoor Mandate

      So, again, to all the politicians and lawmakers supporting backdooring encryption, what’s your response when China uses it to say that’s why they’re doing it as well?

    • Senator Richard Burr: Confused And Wrong On Encryption

      Right, except so far officials haven’t been able to show evidence of any of those cases actually using encryption. Similarly, law enforcement has failed to show that criminals using encryption have really been that much of a problem either. And that’s because it’s not a problem. Even in the (still mostly rare) cases where encryption is being used, criminals still reveal plenty of information that would allow law enforcement to track them down. It’s called doing basic detective work.

  • Civil Rights

  • Internet/Net Neutrality

    • India Tells Facebook To Shut Down Controversial Zero Rating Program ‘Free Basics’

      The Indian government has spent much of the last year trying to craft net neutrality rules, and had recently been fielding public comment on whether or not Facebook’s zero rating effort, Free Basics, violates net neutrality. As we’ve covered at length, Facebook’s been trying to corner the developing nation ad market with a zero rated program that offers free access to curated, Facebook approved content. Critics and Free Basic content partners alike haven’t been comfortable with giving Facebook that much control.

    • How the Internet of Things Limits Consumer Choice
    • Why India’s Net Neutrality Activists Hate Facebook

      Facebook Inc. Chairman Mark Zuckerberg made a personal appeal in one of India’s leading newspapers for the country to allow a free Internet service that has stirred controversy and invited questions from regulators.

      Facebook’s proposed Free Basics plan allows customers to access the social network and other services such as education, health care, and employment listings from their phones without a data plan. Yet activists say the program threatens the principles of net neutrality and could change pricing in India for access to different websites.

      The backlash in India centers on net neutrality, the principle that all Internet websites should be equally accessible. Critics accused the world’s largest social networking company of favoring a limited swath of the Internet and excluding rival services. And Facebook’s broader Internet.org initiative, including Free Basics, is seen as an effective way to draw more users onto a social network already used by over a billion people.

    • Facebook’s Zuckerberg: If You Oppose Our International Power Grab, You’re An Enemy Of The Poor

      Last week we noted that India had shut down Facebook’s Free Basics program, arguing the company’s plan for zero rating Facebook-approved content and services is effectively glorified collusion; an attempt to eventually corner global ad markets under the banner of altruism. The country has been trying to craft net neutrality rules, and has slowly realized that whatever neutrality looks like, Facebook deciding what content Indians get access to isn’t it.

    • Comcast Cap Blunder Highlights How Nobody Is Ensuring Broadband Meters Are Accurate

      For years now we’ve noted that while broadband ISPs rush toward broadband caps and usage overage fees, nobody is checking to confirm that ISP meters are accurate. The result has been user network hardware that reports usage dramatically different from an ISPs’ meters, or users who are billed for bandwidth usage even when the power is out or the modem is off. Not only have regulators historically failed to see the anti-innovation, anti-competitive impact of usage caps, you’d be hard pressed to find a single official that has even commented on the problem of inaccurate broadband usage meters.

  • Intellectual Monopolies

    • Copyrights

      • El Paquete Semanal: How Offline Piracy Flourishes in Cuba

        For more than a decade many Cubans have been pirating the latest entertainment without a proper connection to the Internet. Instead, they have built their own person-to-person distribution network to share a weekly package of pirated material: El Paquete Semanal.

Buying Panels and Paying the Media to Cement Personal Agenda: The Bill Gates Common Core Case Mirrors the Battistelli Unitary Patent Case

Posted in Bill Gates, Europe, Marketing, Patents at 7:02 am by Dr. Roy Schestowitz

Watch out and be prepared for the massive Unitary Patent PR campaign

Gates and media

Gates and media 2

Summary: A look at highly expensive lobbying for personal gain by Bill Gates in just one area (among many) and how this relates to EPO lobbying for the UPC, which basically helps make the rich even richer

BASED on the EPO’s spendings of nearly a million dollars for a US company to promote the Unitary Patent in the US, there is definitely something going on and we cannot help thinking of Gates’ promotion of Common Core, which he profits from (we no longer cover this, having written hundreds of articles on the subject). It’s all about Big Business, which is already treated more favourably than others at the EPO.

A few days ago we found this promotional EPO article that says: “Reflecting in statistics, the European Union is the second-largest overseas filer with the SIPO, accounting for 28% of foreign filings in 2014. In the same year, Chinese filers contributed more than 9% filed with EPO, mainly clustering around the sectors of digital communication, computer technology and telecommunications.”

“It’s all about Big Business, which is already treated more favourably than others at the EPO.”Well, actually, many of the filers are big businesses from China (some are government-connected and enjoy a fast lane at the EPO). Battistelli has been visiting China and posing a lot with Chinese officials recently, not because they have so much in common in terms of human rights but because Battistelli serves globalists, not Europeans. He serves the world’s billionaires, people like Bill Gates.

Incidentally, last night as we reorganised some old feeds we found alarming headlines from the past 2 years. In them, Bill Gates’ push of Common Core came under fire. Like the Unitary Patent in Europe, there’s a big PR campaign behind it. See articles (written by teachers) such as “An Audit of Bill Gates’ Common Core Spending” or “Bill Gates: An infographic”.

“It’s an information war.”Having essentially bribed the Seattle Times for favourable coverage before [1, 2] (like Adelson does right now in Las Vegas, despite getting caught), Bill Gates is doing it again. To quote some headlines, “Bill Gates funded the Seattle Times “Education Lab””, “Bill Gates funds the media then secretly meets with them” and “Bill Gates funds the media, including the Seattle Times’ Education Lab, then secretly meets with them”. He gives them marching orders like he did in the New York Times with his occasional visits. Gates also pays notable British press like the BBC and The Guardian in exchange for favourable coverage. It’s an information war. He is buying out the media and the front groups, making them incapable of resisting and rendering them just puppets catering for his agenda, masquerading as lots of interest groups of various different stakeholders. Here are some headlines from the aforementioned teachers’ blog:

A lot of the above reminds us of Battistelli and his precious Unitary Patents. He has an agenda to sell and obscene amounts of money are now being (mis)used for an unacceptable PR campaign. Who benefits? Certainly not the public.

Don’t believe anything that EPO management says, including whatever it may say about the Unitary Patent. Sadly, the EPO is now poisoning also the media and it sets up events that serve as Unitary Patent propaganda. █

12.27.15

Insensitivity at the EPO’s Management – Part IV: Criticism Regarding Patent Scope is Verboten

Posted in Europe, Patents at 12:17 pm by Dr. Roy Schestowitz

Battistelli’s commandment: thou shalt not question the management

EPO as god

Summary: The inability to (safely) scrutinise patent maximalism at the European Patent Office (EPO), where declining standards are exploited as desperate means geared towards meeting or beating quality-agnostic goals

SEVERAL countries in the world have rather ruthless patent policies. They would be willing to grant and protect/enforce patents on just about anything, under the wrong assumption that monopoly is virtuous and collectively beneficial. The EPO increasingly serves the big monopolies, even when they're not European. The EPO, as we showed in part II of this series, also starts supporting monopolies on cancer, not just on software/mathematics/logic (inherently inseparable). It’s incredibly misguided and controversial.

India is one of those very few countries that became widely known for rejecting patents on a lot of drugs, for the benefit of the collective health of Indian people (a very large population). India restricts patents in several other domains as well, e.g. software. Victory (for now [1, 2]) over software patents in India has been big in the Indian news sites today/yesterday, at least the English-speaking sites. Here are three new examples:

Europe’s EPO has been odd when it comes to software patents (“as such”) and increasingly when it comes to patents on life, as we noted here several times in recent months. Those inside the EPO who dare to speak out about it apparently suffer retribution. How do we know? Well, stay tuned for the remainder of this long series, which binds together several stories of several people who suffered the wrath of the EPO’s management. Under the Battistelli-led regime, more than ever before, staff is reduced to mere lemmings having to accept the systematic robbery of their basic rights, the abduction of the Office by brutes with mates in the industry, and the detrimental ‘public’ ‘service’ to Europe. This is effectively a coup d’etat and merely suggesting that it exists had become a punishable offence. If the EPO was a purely theist institution (not science in disguise), Battistelli would be its Mohammad or Jesus or Buddha or Moses. There is no room for questioning, however unscientific it may seem. █

Revolving Doors of High-Level EPO Management: Jacques Michel and the Questel Deal With the EPO

Posted in Europe, Patents at 11:43 am by Dr. Roy Schestowitz

Jacques Michel
Photo credit: Gao Lulin Foundation

Summary: A look at the old taboo, namely allegations of a conflict of interest involving the French for-profit Questel and the European Patent Office, where Jacques Michel held high positions before these two signed a lucrative contract to digitise about 67 million pages of patent collections

MOVING on to the next item on our busy EPO agenda (Christmas is an opportunity to keep abreast of the news whilst also coping with the ever-growing backlog), today we leave behind Europatis and move on to Questel. For those who missed what we wrote about Europatis, here it is in four consecutive parts:

  1. Jacques Michel (Former EPO VP1), Benoît Battistelli’s EPO, and the Leak of Internal Staff Data to Michel’s Private Venture
  2. Europatis: “Turnover of €211,800 and Zero Employees”
  3. Loose Data ‘Protection’ and Likely Privacy Infringements at the EPO: Here’s Who Gets Employees’ Internal Data
  4. Summary of the EPO-Europatis Series

Before Jacques Michel founded Europatis (we got hold of the corporate statutes of Europatis, a confirmation letter by a bank that the starting capital of €4000 had been duly deposited, and a shareholders’ resolution naming Jacques Michel as the general manager) he had done numerous things, including some time at IIPI, a career at the EPO, and a career at Questel.

“Jacques Michel migrated from Questel to the EPO.”Based on Questel’s own Web site, in 1989 “Questel [was] chosen by the European Patent Office (EPO) to develop its internal search system, EPOQUE.” Prior to that, in 1987, there was a “Cooperation between Derwent, INPI [French Patent Office], and Questel to open the Markush Darc service for structural searches in chemical patents.” 7 years earlier, in 1980, there was a “Cooperation with INPI (French Patent Office) and first patent online database, INPI-1 accessible to the public début de la co-opération avec l’Institut National de la Propriété Industrielle (INPI): very first step for Questel in the IP space.”

So Questel is yet another thing (like Team Battistelli) that migrated from INPI to the EPO. Jacques Michel migrated from Questel to the EPO.

“As to Jacques Michel’s previous endeavours, please turn to exhibit #1,” one reader told us, responding to our ongoing exploration regarding Michel’s extra-curricular (or extra-EPO) activities. A copy is included with fresh, improved quality, OCR information [PDF].

“According to Questel’s own Web site, EPOQUE dates back to 1989.”It is a Masters thesis by one Jiaji Ma, submitted in 1992 at the ENSSIB, the “École nationale supérieure des sciences de l’information et des bibliothèques” near the French city of Lyon, which translates to something like “National Superior School of Information Science and Libraries”.

“It was a different time and a very different EPO,” this well-informed reader said to us, “and the public actually got something of value out of all of the Questel wheeling and dealing. The Masters Thesis does seem to confirm how really “convenient” all this business was, but we still don’t know what exactly happened behind closed doors — governments may have been involved directly.

“I just found my copy of an “official” history of the EPO. On page 192 it is written that Jacques Michel was VP1 from 1987 to 2003. That means he would have been hired after the 1986 Questel deal, so in appearance everything was theoretically above board.”

“There is some uncertainty here, as causality is hard to concretely prove.”According to Questel’s own Web site, EPOQUE dates back to 1989. That’s when the EPO enters the picture, based on their “official” history.

There is some uncertainty here, as causality is hard to concretely prove. “But I was told many years ago the story of someone who got immediately sacked,” a reader told us, “when he dared raise that story. Unfortunately I never learned his name or the exact circumstances, and decades have passed, so proof is difficult.”

Our reader has read the thesis and interpreted it as follows:

Its title is “Pouvoirs Publics et Serveur Questel”, i.e., “Public authorities and the Questel Server”

In the 1970s, witnessing the rapid US developments in the database sector, the French government under Giscard d’Estaing wanted to develop its own national expertise in a field it perceived as being of strategic importance.

Questel was a result of this political will.

And Mr. Michel had a longtime association with Questel.

The thesis begins with the following interrogation on page 7:

French: 2. Une question centrale: quelles sont les relations entre les pouvoirs publics et Questel en France

English: 2. A central question: what is the relationship between public authorities and Questel in France?

On page 10:

Original: Questel a été créé sous l’impulsion de la politique nationale des pouvoirs publics. C’est un phénomène particulier à la France par rapport aux autres pays.

Translation: Questel was created as a result of a national policy of public authorities. It is a phenomenon peculiar to France which distinguishes it from other countries.

Original: De 1978 à 1982, les relations entre l’Etat, représenté par le Bnist puis la Midist, et Questel, représenté par Télésystèmes, s’inscrivent dans un “régime de régie intéressée” (voir fig. 1). C’est à dire un double régime: d’une part Questel est organisé comme une entreprise par la société Télésystèmes, une filiale d’une grande firme publique et d’autre part, elle se développe par les subventions de l’Etat. Son statut juridique est celui une entreprise privée, et son rôle est de fournir des services publics.

Translation: From 1978 to 1982, the relations between the State, as initially represented by Bnist and later by Midist, and Questel, as represented by Télésystèmes, are conducted within a “commercial public service regime” framework (see fig. 1). This means a dual regime: one the one hand Questel is organised as a commercial venture by the Télésystèmes corporation, a subsidiary of a large public corporation, and on the other hand, it develops itself through State subsidies. Its legal form is one of a private company, and its role is to supply public services.

An exact translation for the expression “régime de régie intéressée” isn’t obvious. It is something of an an oxymoron, with a whiff of that nearly proverbial concept of “privatised profits and socialised losses”…

Original: A l’issue de cette période, le serveur national Questel n’est qu’une des cinq divisions de la société Télésystèmes, mais une convention lie Questel et les pouvoirs publics. Avec cette convention, Questel reçoit des aides importantes: 23 MF en 1979, 19 MF en 1980, 24 MF en 1981 et 26 MF en 1982. Pendant cette période, Questel ne peut pas vivre sans subvention de l’Etat (voir le tableau 1 et 2). De plus, dépendant d’une société informatique et logiciel, l’activité de serveur national est l’occasion de développer un savoir-faire en ingénierie documentaire qui dégage pour Questel en 1981, 8 MF. [...]

Translation: At the outset of this period, the Questel national server is only one of five divisions of the Télésystèmes corporation, but an agreement binds Questel and the public authorities. With to this agreement, Questel receives significant financial assistance: 23 MF in 1979, 19 MF in 1980, 24 MF in 1981 and 26 MF in 1982. Questel couldn’t exist during this period without State subsidies (see tables 1 and 2). Moreover, as a part of a data processing and software house, the activity as national server allows it to develop a know-how in document and software engineering, which brought Questel 8 MF in 1981. [...]

According to the last row of table 1 on page 36, Questel received during its early years about 132 million Francs of public money overall.

But the first wave of austerity hit the first Mitterand government, in place since 1981, and Questel was essentially told it would have to learn to survive on its own — eventually.

Original: En même temps que l’achèvement de la convention, un plan d’entreprise de 4 ans est élaboré pour 1983-1986 au terme duquel Questel doit atteindre l’équilibre financier. Pendant cette période dans le cadre d’un cahier des charges, l’Etat apporte une aide forfaitaire et plafonnée. Une subvention globale de 40 MF est répartie pour moitié entre le Ministère de l’industrie [...], et le Ministère des PTT. La figure 2 suivante montre les relations entre pouvoirs publics et Questel durent cette période.

Translation: At the same time the agreement was completed, a 4-year business plan is developed for 1983-1986 time frame, at the end of which Questel should reach the break-even point. During that period the State provides a capped lump-sum subsidy according to a predefined specification. A global grant of 40 MF is supported evenly between the Department of Industry [...] and the department of Post and Telecommunications. Figure 2 shows the relationships between public authorities and Questel during that period.

Let’s meet Jacques Michel on page 39:

Original: Il faut indiquer que pendant cette période, il n’y a plus de subvention directe pour Questel, mais les aides indirectes de l’Etat existent encore: les produits du CNRS, comme Francis et Pascal, les produits de l’INPI, notamment les brevets et les marques, sont toujours diffusés sur Questel, ce qui constitue une aide administrative. Il y a également des aides du personnel: les directeurs de Questel sont quasiment tous venus des organismes publics. Prenons un exemple plus clair comme celui des titres de Jacques Michel dans les différentes périodes: il était chef du Bnist, de la Midist, puis directeur de Questel, actuellement il est chef [sic] de l’Office Européen des Brevets, et ces brevets sont commercialisés par Questel!

Translation: It should be stated that for this period, although there are no more direct grants for Questel, indirect aids from the State still exist: the Francis and Pascal [bibliography databases] of the CNRS [National Scientific Research Centre], and those of the INPI [French patent office], namely patent and trade-mark information, are still distributed through Questel, thus constituting assistance from public bodies. Let us also look at staffing assistance: practically all Questel directors come from public bodies. Let us take as case in point the titles held by Jacques Michel during the different periods: he was the chief of Bnist, of Midist, then became the director of Questel, and is now chief [sic] of the European Patent Office, whose patents are marketed by Questel!

Note the use of an exclamation mark at the end of the paragraph.

Michel was in fact VP of the former DG1, which in its former organisation was in charge of prior art search services at The Hague and Berlin. It subsumed the forerunner organisation called “Institut International des Brevets”, and thus remained vertically integrated with its own support and IT services. Michel may not have been the President of the EPO, but his position as VP1 wielded considerable power and influence.

Nowadays, DG1 is in charge of search and examination. Support services and IT are now the province of other DGs led by “virtuosos” of the likes of Željko Topić and Alberto Casado Cerviño.

Now, if you turn to p. 52-53, you see that something of a miracle occured…

Original: En 1986, Télésystèmes-Questel est retenu par l’Office Européen des Brevets pour la numérisation de ses brevets publiés en Europe depuis 1920, soit environ 67 millions de pages.

Translation: In 1986, Télésystèmes-Questel is retained by the European Patent Office for the digitisation of its patent [collections] published in Europe since 1920, representing about 67 million pages.

Isn’t in an amazing coincidence? Questel was still rather unprofitable and there comes suddenly this large contract… And Jacques Michel becomes VP of the very organisation which rescued Questel.

Nearly three decades later, the exact order in which these events occurred ago have become blurred. It was however common knowledge that whoever dared to voice at the EPO questions or opinions about that deal was essentially committing a career limiting move, with potentially immediate and prejudicial consequences.

But Questel’s existence was now secured.

Original: Dès 1986, Questel détient un tiers du marché mondial de l’information en ligne sur les brevets ce qui représente 25% des heures de connexion de Questel, et ce marché augmente de 10% par an. Questel est devenu un des premiers fournisseurs des informations en ligne sur les brevets dans le monde. D’après Jacques Michel, l’activité des brevets assure à Questel une notoriété, une crédibilité et une dimension internationale de premier plan (Infotecture, no. 133, 1986).

Translation: Questel owns in 1986 one third of the world market for online patent information, representing 25% of connection time, and this market grows by 10% per year. Questel became one of the lading leader of online patent information throughout the world. According to Jacques Michel, the patent-related activities provide Questel notoriety, credibility and a first-rate international stature (Infotecture, no. 133, 1986).

Not bad, ain’t it?

It’s OK for France or Europe to have an industrial policy. After all, the Americans have DARPA, NASA, Boeing, three armed services, etc. But is it the task of an international organisation with shared ownership? And did other member states have a say in this?

Could that be the reason why a later project involved other European partners in addition to the French one?

Original: Une plus grande coopération européenne apparaît en 1989. L’Office Européen des Brevets signe un contrat de 10 millions de DM avec trois sociétés: Télésystèmes Questel, Bertelsmann Computer Beratungsdienst (Allemagne) et Sarin (Italie) pour développer le projet EPOQUE qui permet de développer l’information sur les brevets et représente 24 million de documents avec une croissance de 800 000 par an.

Translation: A greater European cooperation project appears in 1989. The European Patent Office signs a 10 million DM contract with three different companies: Télésystèmes Questel, Bertelsmann Computer Beratungsdienst (Germany) and Sarin (Italy) for developing the EPOQUE project which permits the development of patent information and represents 24 million documents, with an annual growth of 800,000 documents.

Footnote: EPOQUE is the EPO’s workhorse worldwide patent database. It is for example used for the backend of the Espacenet service. It used to run under a heavily modified IBM mainframe database engine with roots extending back in the 1960s. The EPO has developed it’s own in-house, improved and up-to-date search engine from scratch. This project took a long time to come to fruition, but now license fees no longer must be paid.

The conclusion on p. 59:

Original: Notre analyse permet de faire comprendre que les relations entre pouvoirs publics et Questel sont très étroites.

Translation: Our analysis allows one to understand that the relationship between the public authorities and Questel is a very close one.

Whether that’s a fair analysis of the machinations or not, on the balance of probabilities it seems likely that Questel was almost bailed out by the non-French EPO after Michel had entered the EPO (a couple of years earlier he became VP1 at the EPO).

When Team Battistelli makes an argument about the independence of the boards and other such nonsense (as if sending them to a different country/city would somehow improve institutional independence or perception of integrity) people ought to ask themselves whether EPO management itself is as ethical and pure as it wishes to present itself, all while appointing family members to top positions under dubious circumstances [1, 2, 3, 4]. █

Battistelli’s Proposed Changes to Pensions “Difficult to Understand”, “Liable to Cause Instability”, Without Consultation or Justification

Posted in Europe, Patents at 10:05 am by Dr. Roy Schestowitz

The increasingly-greedy EPO proceeds to the next cutback and the rationale is disingenuous

Medical doctor for EPO

Summary: Legal opinion from Jordan Howells and Ludovica Moro tackles the latest proposal from the EPO’s management, putting forth their refutation of what’s often used as opportunistic ‘damage control’ (e.g. against negative/hostile media whenever there’s a major scandal or protest)

Pensions at the EPO have been the subject of recent changes. Having crushed basic rights of staff, the EPO’s management goes after pensions, too. Since pensions are often based on promises and subjected to changes for many decades, there is plenty of room there for gradual gouging. “Pensions have already been weakened and lowered in a variety of ways over the last years,” one reader told us before seeing the latest. “What did they come up with this time? It might be relevant in that it could constitute further proof that the EPO is being transformed into a plain “cash cow” for the member states. The problem is how to redirect the money from EPO coffers to the NPOs [national patent offices] and their governments.”

“Paying someone or compensating someone does not give one the right to break national laws.”Before the Administrative Council sessions someone sent us the following document. We decided not to publish it at the time, in part for ‘diplomatic’ reasons (the reaction of delegations). “The document was made available to EPO staff,” a reader told us, “and management has certainly seen it.” We have looked at it carefully and asked numerous people about it (people with whom we have secure communication channels). We have run this site for nearly a decade and as far as we know not even once was a source caught or even found to have spoken to us (my PGP key now appears to the right of each article I write), so whenever an opinion is needed we are able to get it (even from people within Microsoft) prior to publication.

Days ago we decided that given our possession of the legal opinion regarding the pension scheme’s amendment which was already voted on anyway, and given professional/legal profession privilege (which we suppose or interpret as meaning that the EPO cannot under any circumstance sniff out the document, which it already has anyway), there’s no longer any point to postponing the release, as text, of the 20-page document noting that the EPO’s amendments are weird at best and futile at the very least. Maybe the document is too long for one to actually bother reading, so we encourage people to read the conclusions part only (starts in page 19, where horizontal lines are representative of page breaks).

“Below are 20 pages compacted into a single Web page.”Putting the opinion out there would not necessarily help other international organisations, where the circumstances are rather unique. The only upside might be that we’ll have something to link to down the line whenever Team Battistelli raves about its “pensions”, as if that somehow justifies all the gross abuses against staff. Paying someone or compensating someone does not give one the right to break national laws.

Below are 20 pages compacted into a single Web page. This opinion has been given to help dissect changes that impact the lives of existing, former, and future staff of the EPO.

OPINION

RE: THE PROPOSED AMENDMENTS TO THE
PENSION SCHEME REGULATIONS
CA/93/15

TO THE STAFF UNION
OF THE
EUROPEAN PATENT OFFICE

1. INTRODUCTION

1.1 We have been instructed by the Staff Union of the European Patent Office (‘SUEPO’) to produce an opinion in respect of proposed amendments by the President of the European Patent Office (‘the President’) to the system of compensation for taxation on pensions of former EPO staff members.

1.2 The relevant circular is CA/93/15, dated 5th October 2015, which was submitted by the President to the Budget and Finance Committee (for opinion) and the Administrative Council (for decision). Since the initial instruction, it has emerged that the circular has been resubmitted after having been amended and as such, CA/93/15 Rev.1 must also be considered.

1.3 There have been a number of historical changes to the Pensions system at the EPO, with reviews taking place in 1977 and 1989 and changes being made in 2006 and 2008/09. More recently, in December 2014, the Administrative Council decided to reintroduce the former tax adjustment in lieu of the lump-sum payment as partial compensation for national taxation of pensions. The amendments relate specifically to Article 42 of the Pension Scheme Regulations and the relevant Implementing Rules. These amendments are described as having been introduced ‘as an immediate measure in view of the need to provide a timely solution to the practical deficiencies of the [partial compensation system]’.

1.4 The rationale for the current proposed amendments to the tax adjustment system is stated by the President as being to ‘better align the calculation method with the purpose of the system, while maintaining an adequate level of administrative efficiency.’ A majority of three quarters of the votes is necessary to effect the changes.

1.5 Both SUEPO and the Association of European Patent Office Pensioners produced commentaries on Document CA/93/15, in which they considered the proposed amendments from their respective positions.

2. BACKGROUND

2.1 The European Patent Office is an international organisation and as such, it enjoys a number of immunities from the laws of its host nations. However, Article 16(2) of the Protocol on Privileges and Immunities of the European Patent Organisation states that pensions do not fall within these immunities and as such, are subject to national income tax.

2.2 Article 42 of the Pensions Scheme Regulations of the Office provides for a tax adjustment payment to partly compensate staff members who joined the office before 1st January 2009 for national income tax levied on their pensions, those staff members having been ‘grandfathered’ through previous amendments. The amount of this compensation is calculated by reference to tables of equivalence which are established for each tax year and Member State by the International Service for Remunerations and Pensions (ISRP) – a service provider which deals with the six Co-ordinated Organisations and other international organisations. The tables of equivalence are based on information provided by national tax
authorities which state the theoretical national tax levied on pensions.

2.3 The rationale for making the further proposed amendments is stated as being to ‘better align the calculation method with the purpose of the system, while maintaining an adequate level of administrative efficiency’. Specifically, concern is expressed that the theoretical sum calculated may give rise to a discrepancy between the amount paid by the pensioner and the compensation paid by the EPO, such that this may constitute ‘additional income’. The proposal purports to aim both to mitigate the ‘undesired effects’ of the system whilst at the same time, maintaining its advantages and having regard to pensioners’ need for stability.

3. ACQUIRED RIGHTS

3.1. Whilst the position in respect of acquired rights is well rehearsed, the subject is worth considering briefly, before moving onto other areas of concern. The doctrine of acquired rights was developed by the ILOAT as a means of determining which terms of the relationship between staff members and their

employer may and may not unilaterally be amended by the organisation1. The relevant test was set out by the ILOAT in the leading case of Lindsey2 in which it said the following:

“The terms of appointment of international civil servants and, in particular, those of the officials of the Union, derive both from the stipulations of a strictly individual character in their contract of appointment and from Staff Regulations and Rules, which the contract of employment by reference incorporates. Owing, inter alia, to their increasing complexity, the conditions of service mainly appear not amongst the stipulations specifically set out in the contract of appointment but in the provisions of the above-mentioned Staff Regulations and Rules. The Staff Regulations and Rules contain in effect two types of provisions the nature of which differs according to the objects to which they are directed. It is necessary to distinguish, on the one hand provisions which appertain to the structure and functioning of the international civil service and the benefits of an impersonal nature and subject to variation, and, on the other hand, provisions which appertain to the individual terms and conditions of an official, in consideration of which he accepted appointment. Provisions of the first type are statutory in character and may be modified at any time in the interests of the service, subject, nevertheless, to the principle of non-retroactivity and to such limitations as the competent authority itself may place upon its powers to modify them. Conversely, provisions of the second type should to a large extent be assimilated to contractual stipulations. Hence, of the efficient functioning of the organization in the general interest of the international community requires that the latter type of provisions should not be frozen at the date of appointment and continue so for its entire duration, such provisions may be modified in respect of a serving official and without his consent but only in so far as modification does not adversely affect the balance of contractual obligations or infringe the essential terms in consideration of which the official accepted appointment.”

Emphasis added

_____
1 The equivalent concept at the World Bank is that of ‘fundamental and essential’ terms and conditions of employment as established in the leading case of de Merode, which was the first case of the World Bank Administrative Tribunal.
2 ILOAT case 61 Linsdey (1962)

3.2. In apply this doctrine, the ILOAT has drawn a distinction between the amendment of terms in respect of which staff members have acquired rights on the one hand, and the amendment of the method or ‘modalities’ which appertain to the performance or delivery of the term or condition to which the staff member has acquired a right. Where the proposed amendments relate to the modalities – that is to say, to those terms which are of an impersonal nature – then, it is often held that organisations may make amendments to them, although each case turns on its own merits. Aware of this, organisations often seek to make changes to the methodology, rather than attacking the right itself; one such example might be to amend the way in which a particular benefit is calculated or provided.

3.3. However, there would seem to be a considerable lacuna in the reasoning of the ILOAT and consequently, the case law, in the situation where the proposed amendments to the method or ‘modalities’ are so great that they might properly be said to amend the term itself. At what point are amendments to the methodology for calculating a benefit, or indeed, compensation, so great that they have the effect of upsetting the balance of contractual relations, or of amending the essential nature of a term, in consideration of which, an official accepted appointment? By way of a basic example, consider the situation where an education allowance is calculated prior to amendments and on that basis, provides for a sum of €100,000 to be paid to the staff member; but after the methodology for calculation is changed, the sum falls to €1,000. It is patently nonsensical to argue that this is merely a change to the modalities for calculation and therefore, that it does not infringe on the staff member’s acquired rights; on the contrary, the changes to the methodology are themselves the means by which the acquired right is taken away, albeit under the pretense of a mere amendment to the method for determining the sum of the education allowance. The reality is, that such a change has had the effect of changing – fundamentally – one of the key things in consideration of which a staff member accepted employment and in the process, has upset the balance of contractual relations between the organisation and the staff member.

3.4. The cases of Lamadie (No.2) and Kraanen3 clarify that the test is applied on an objective basis, that is to say, would the provisions under consideration induce the mind of an ordinary applicant, when he was considering joining an organisation, to accept that offer? This is as opposed to that of the Applicant in the case, viewed on a subjective basis.

3.5. Having regard to the example above, the argument to be brought by SUEPO in this instant case would be to address this lacuna. The pensions adjustment represents a significant portion of pensioners’ remuneration and, when compounded by the in-built delay in applying the adjustment and its now apparently circular application, which has the effect of further reducing the amount of the adjustment (cf. paragraph 7.7, below), one might argue that it is questionable whether the pensioner is getting the adjustment to which they are entitled at all.

3.6. It is undoubtedly of some concern that the proposed amendment set out in CA/93/15 came shortly after earlier changes in December 2014, for several piecemeal alterations made over the years may well be indicative of a creep towards more wholesale modification which, if they had been made at once, ‘might upset the balance of contractual obligations’ between the EPO and its Staff Members and thus have been frustrated by virtue of the doctrine of acquired rights.

4. CONSULTATION

4.1. The EPO enjoys functional immunity from legal suit; as a consequence, in the normal course of affairs, its staff members have no recourse to national courts4. For this reason, procedural regularity takes on particular significance in international organisations – a point that is made by Amerasinghe5. Adherence by the Organisation to its Regulations is fundamental to protecting the rights and interests of its staff members. As such, failures in respect of the consultative
_____
3 Lamadie (No.2) and Kraanen ILOAT Judgment No. 365 [1978] (IPI/EPO)
4 The importance of consultations, engaging with staff and providing access to a proper remember have been demonstrated by the lifting of the immunities of the EPO by the Dutch courts – a decision that was confirmed by the Court of Appeal.
5 Amerasinghe, C.F., The Law of the International Civil Service, 2nd Ed, OUP 1994 at page 366

process may amount to procedural irregularity giving rise to a cause of action in
itself.

4.2. Article 38 of the Service Regulations (November 2015) sets out provisions in respect of the General Consultative Committee. This Committee might properly be thought of as the main forum for participation by staff members in proposed changes to the terms and conditions of employment which affect them and their colleagues. Article ‘(1)’ states that:

“The General Consultative Committee shall consist of:

  • the President of the Office as Chairman. The President may delegate his chairmanship;
  • all full members of the Central Staff Committee and in their absence their alternates;
  • an equivalent number of full members appointed each year by the President of the Office and in their absence their alternates.”

4.3. Article 38(2) provides that:

“The General Consultative Committee shall, in addition to the specific tasks given to it by the Service Regulations, be consulted on:

  • any proposal to amend these Service Regulations or the Pension Scheme Regulations, any proposal to make implementing rules and, in general, except in cases of obvious urgency, any proposal which concerns the conditions of employment of the whole or part of the staff to whom these Service Regulations apply or the recipients of pensions;
  • any question of a general nature submitted to it by the President of the Office;
  • any question which the Staff Committee has asked to have examined in accordance with the provisions of Article 36 and which is submitted to it by the President of the Office.”

By virtue of Article 38 (1) and (2) it is clear that there is a duty incumbent upon the President of the Office to Consult with, inter alia, the Central Staff Committee in respect of the proposed amendments to the Pensions Scheme Regulations, the regulations having been drafted using the imperative ‘shall’. In this instant case, no argument can be made in respect of ‘obvious urgency’ which might negate such a duty, for the proposed changes do not arise from ‘something unforeseeable’6 as would be required on the reasoning of the ILOAT in Judgment 1061. Furthermore, one may take from Judgment 3395 (applying Judgment 2919) that when the requirement for consultation is engaged, it must be meaningful and conducted in good faith.

4.4. The logical and proper order for consultation would have been for the first document – CA/93/15 – to have been submitted to the GCC, after which, their opinions, proposals and amendments could be submitted to the Budget and Finance Committee (‘BFC’) for consultation “on all questions submitted to the Administrative Council in which the financial implications have to be taken into consideration” as is mandated by Article 6 of the Financial Regulations. Yet reference to the timeline of events in respect of this matter belies any claim that proper consultation has taken place, for the order has in fact been reversed. The BFC convened on 22nd October 2015, while the GCC was later ‘consulted’ for less than two hours on 23rd November 2015. As a consequence, the BFC was blind to any amendments that followed and further, the GCC was rendered incapable of considering any amendment which would have a financial implication, the BFC having already sat. Moreover, compounding the existing lack of meaningful consultation, a second incarnation of the document – CA/93/15 Rev.1 – was produced. This has not and will not now be considered by either of the GCC or the BFC. The inclusion of illustrative tables in the latter document demonstrates vividly the fundamental lack of understanding of how this proposal will work in practice: indeed, had they been included in the first paper, then this may well have given council members pause for thought, for the simplistic examples provided only serve to highlight the lack of actuarial modeling and the difficulties that will arise for pensioners trying to apply the proposed system. Further, the insertion at paragraph 15 of Part 1 states:
_____
6 ILOAT Judgment 1061

“As a result, the tax adjustment would be calculated on the basis of the pensioner’s actual income tax taking into account all sources of income, but it could not be higher than the theoretical amount determined as per the tables of equivalence.”

This addition is clearly directly contradictory to Article 42 (3) which states, inter alia, that:

“No account shall be taken of:

  • individual factors related to the personal circumstances or private means of a particular pensioner,
  • income other than that arising under these Regulations,
  • the income of the spouse or dependents of the pensioner.”

The additional paragraph 15, if it had been seen by the GCC, would surely have given rise to questions and concerns in respect of this apparent contradiction and flaw in logic in the way the system is to be operated.

4.5. Extraordinarily, it is clear that this proposal has been drawn up without any real consultation of the EPO Pensioners’ Association, which brings into question the validity of any consultation thus far. On 24th November, the Chairman of the Association was invited by the Office to a meeting on 30th November. The purpose of the meeting was not disclosed and two further requests for, notification of the purpose of the meeting, together with access to any papers for it, were ignored. Only at the start of the meeting was the Chairman informed that the purpose was to get the Association’s input on the revised document CA/93/15 Rev.1. It would seem that this was little more than a box-ticking sham consultation, in which the process has been engineered so as to stifle any meaningful feedback from those affected. This would, of course, be even more significant an issue in circumstances where there is an explicit agreement or undertaking by the President to consult the Association: indeed, such circumstances, if they did in fact apply, would appear to give rise to a case of procedural irregularity.

4.6. The importance of consultation with the Staff of the EPO is all the more pertinent given the recent historical tensions between the President of the Office and the Staff. Indeed, proper consultation is there as a means of ameliorating concerns about prospective changes and enabling the Office to achieve its stated aim of ‘maintaining the advantages of the current system…[whilst] bearing in mind the pensioners’ need for stability’. Yet actions speak louder than words and the course adopted by the Office suggests that this objective might more accurately be described as ‘lip service’, than a true statement of intent.

5. LACK OF DETAIL AND CLARITY

5.1. There is a significant lack of detail and clarity in the proposals. The frequent amendments to the pensions scheme regulations by the office in the past would seem to be demonstrative of a lack of genuine thought, consideration and consultation when it comes to making changes. This is all the more egregious for pensioners who, together with their families, should enjoy a certain level of stability, having worked and planned on the basis of the system that was in place. As the ILOAT put it in Judgment 3375 at Consideration 20:

“It is trite principle that an international organisation owes its staff members a general duty of care not to cause them undue hardships. Accordingly, the relations between an organisation and a staff member must be governed by good faith (see, for example, Judgments 2116, under 5, and 1526, under 3)”.

In this respect, it would seem that the Office is not exercising the requisite duty of care, which should be expected when dealing with reforms affecting staff, pensioners and their families.

5.2. Neither a comparative analysis nor detailed calculations have been carried out in order to study the impact of the amendments to the current system or the consequences which may flow from them. A simulation might quite reasonably be expected and should be carried out in parallel with the current system for at least one-year in order properly to consider the viability and desirability of the proposed reforms. Given that the main stated aim is to mitigate the undesired effect of

providing to some individuals a higher tax adjustment than the national income tax effectively paid – the implication being that this is an unjustified and unaffordable cost – the Office should provide evidence to quantify and justify the considerable additional costs that will be incurred in administering such a system, for it seems almost inevitable that these costs would vastly outweigh the alleged benefits. Indeed, it is striking that no information has been provided as to how many pensioners such overpayments are said to apply and further, that the very reason that such changes were not pursued in the past was exactly that which is missing from the proposal, namely, the costs associated with administering such proposals. The policy changes appear to be based on mere supposition and speculation rather than any evidence-based rationale.

5.3. Further, a pilot tax adjustment amendment would allow for the specific logistics to be worked out without adversely affecting the most vulnerable class of individuals with whom the office interacts. Precise sample calculations should be made on the amounts and incomes that will be taken into consideration to determine the adjustment; none of these issues are dealt with in CA/93/15 or CA/93/15 Rev.1.

5.4. Article 52 of the Pensions Regulations states in the imperative, that:

“Implementing Rules for giving effect to these Regulations shall be adopted by the Administrative Council acting on a proposal by the President of the Office and after consulting the General Advisory Committee.”

Yet the vagaries apparent in the proposals are supported only by the assertion of the Office7 that it will be – hitherto unnamed – ‘specialists’ who will determine the way in which the proposals are to be implemented, after they have been approved by the Council. Indeed, at the meeting with the Pensioners’ Association, the representatives of the Office were not able to answer a single question in respect of implementation – not even which entity has been tasked with the application of the amended system. In the absence of specific proposals and models, save for the very basic and simplistic examples provided in the paper, it may be possible to argue that the implementing provisions themselves are deficient and irregular.
_____
7 At the 30th November meeting with the Pensioners’ Association

5.5.
ILOAT Judgment 3324, which arises from a dispute at the World Customs Organization (‘WCO’), concerns a decision by the President not to implement a salary increase recommended by the Co-ordinating Committee on Remuneration of the system of Co-ordinated Organisations. Although that case concerns salaries and not pensions, the issues raised are, in many respects, analogous and it seems quite reasonable to apply the principles affirmed by the Tribunal in its judgment in case 3324, mutatis mutandis, to the case of pensions, for there is considerable cross-over in respect of the points in principle. Specifically, the Tribunal stated at Consideration 16:

“According to the case law recalled in detail in Judgments 1821 (under 7) and 1912 (under 13):

“The principles governing the limits on the discretion of international organisations to set adjustments in staff pay have been well established in a number of judgments. Those principles may be concisely stated as follows:

(a) An international organisation is free to choose a methodology, system or standard or reference for determining salary adjustments for its staff provided that it meets all other principles of international civil service law: Judgment 1682 [...] in 6;
(b) The chosen methodology must ensure that the results are “stable, foreseeable and clearly understood”: Judgments 1265 [...] in 27 and 1419 [...] in 30;
(c) Where the methodology refers to an external standard but grants discretion to the governing body to depart from that standard, the organisation has a duty to state proper reasons for such departure: Judgment 1682, again in 6;
(d) While the necessity of saving money may be one valid factor to be considered in adjusting salaries provided the method adopted is objective, stable and foreseeable (Judgment 1329 [...] in 21), the mere desire to save money at the staff’s expense is not by itself a valid reason for departing from an established standard of reference: Judgments 1682 in 7 and 990 [...] in 6.”

5.6. It could well be argued that if the above considerations apply to salary adjustments, it would be entirely illogical for the same considerations not to apply in the analogous case of tax adjustments, as in this instant case. Indeed, just like the salaries example, where the tax adjustment is concerned:

(a) The Organisation may choose the method for doing so, provided it complies with the provisions of international administrative law;
(b) It must be stable, foreseeable and clearly understood;
(c) It does, as a matter of fact, refer to an external standard (although prior to these proposed amendments, it would seem that there is no discretion to depart from it). Where there is a discretion, then there is a duty on the organisation to state proper reasons for such departure; and
(d) Whilst the purported necessity of saving money may be one valid factor in changing the tax adjustment provided the method adopted is objective, stable and foreseeable, the mere desire to save money at the staff’s expense is not, by itself, a valid reason for departing from the established standard of reference.

Indeed, it would seem that there is a quite apparent lack of objectivity, stability and foreseeability in the rather opaque and untested proposals that have been put forward by the President and so it may be possible to argue, analogously, by applying the principles set out above, to this instant case: the proposals fail on at least grounds ‘b’ and ‘d’. It is of note that in Judgment 3324, the Tribunal explicitly rejected the Organisation’s recourse to budgetary reasons and the world economic climate. Such arguments must surely be even less persuasive in the case of the EPO – a profit-making institution – which has a running budget of €2.05 billion, enjoys cash reserves of €2.0 billion (excluding the cash in the Reserve Fund), has a Reserve Fund of €6.5 billion with the major sub-fund relating to a ring-fenced provision for pensions and one other sub-fund containing in excess of €80 million set aside for the tax adjustment alone.

6. INTERACTION WITH NATIONAL TAXATION LAWS

6.1. In respect of the tax treatment of pensioners by the EPO and its interaction with national taxation rules, notwithstanding the lack of detail and clarity concerning exactly how the regulations are to be applied, it seems inevitable that if the changes are implemented, the situation will become considerably more complex, bureaucratic and uncertain. Moreover, further to the inevitable additional administrative and actuarial costs of running the system in the proposed way, it would seem logical that the lack of certainty and predictability will generate more legal challenges and complaints to the figures reached by the Office.

6.2. Individuals’ tax situations may be complex and many pensioners may have sources of income other than their EPO pensions which will impact on actual tax paid. Article 42(3) makes an explicit assertion, namely, that:

“No account shall be taken of:

  • individual factors related to the personal circumstances or private means of a particular pensioner,
  • income other than that arising under these Regulations,
  • the income of the spouse or dependent of the pensioner.”

However, in seeking to pay an adjustment based on the actual tax paid, where this differs from the theoretical amount, this must necessarily be based on individual factors related to the personal circumstances or income other than that arising from the EPO pension.

6.3. The elected governments of the Member States of the EPO often provide for the value of certain items to be deducted from income tax due. One such example is the provision in a country’s tax law which permits for deductions to be made for losses incurred. As such, if a pensioner sought to write off the value of losses suffered on an investment, for example, then the extent and impact of such losses is mitigated by enabling the pensioner to retain some of the tax due. Yet under the EPO’s proposal, the Office would effectively be benefiting from the losses incurred by the pensioner by using those losses – which are entirely unrelated to

the income from the EPO pension – as a means of reducing the amount of compensation paid.

6.4. It would seem impossible to separate the effect of unrelated tax deductions, from an assessment of actual tax due on a pensioner’s income from the EPO pension, without reference to the theoretical national tax which would have been levied on the pension, if such deductions had not been made – in other words – by applying the system that is currently in place. The proposal as it stands, then, would appear to be logically flawed and contradictory.

6.5. There are two ILOAT cases which specifically deal with the relationship of national taxation and the amount of compensation to be paid. The first – 2257 – was delivered on 16th July 2003 and deals with the overpayment of tax adjustment which was designed to compensate – in part – for taxation of the applicant’s pension in his home country. In that case, the Claimant specifically raised the argument that income from other sources caused his EPO pension to be taxed at a higher rate which was not taken into account in the calculation. The effect of this was that his tax adjustment amounted to approximately 27 per cent of the tax actually incurred on his EPO pension. The Tribunal confirmed the EPO’s arguments at the time in respect of the interpretation of Article 42(3), namely, that:

“only the complainant’s EPO pension income can be taken into account when calculating the tax adjustment. This means that the tax rate applied will assume that the complainant’s only income is his EPO pension income. While this method of calculating the complainant’s tax adjustment does in fact create a distinction between him and other EPO pensioners, for example, those whose EPO pensions constitute their whole income, or whose countries of residence impose a flat tax rate, a distinction does not always constitute discrimination. Distinctions between persons can be valid. A distinction will be invalid when it is based on an irrelevant characteristic. In this case, Switzerland’s decision to apply progressive taxation, in combination with the EPO’s method of calculating tax adjustments, while creating a distinction, does not constitute discrimination. There is no principle of international law which requires the EPO to ensure that all of its pensioners are treated the same vis-à-vis the taxes they pay in their home countries.”

6.6. The effect of this paragraph is that the pensioner must bear the burden of national tax laws, whether for better or worse, since the EPO may only consider the theoretical amount due. The way in which the proposed amendments are drafted does not change this. The language of Articles 42(2) and (3) appears to be not only logically internally irreconcilable, but also at odds with the EPOs own earlier, clearly stated position and the decision of the Tribunal in case 2257. Apply the proposals as best as possible, in light of the lack of clarity contained therein, the only reason why the actual income tax payable by the pensioner would be lower than the theoretical amount of taxation adjustment is the personal circumstances of the Applicant, such as, allowable deductions for losses – precisely those factors which have previously been held to be irrelevant.

6.7. The second case is Judgment 2911 which was delivered on 8th July 2010. The case concerns the payment of the tax adjustment and household allowance, and the treatment of pensioners where their circumstances have changed, in that instance, as a result of separation. The Complainant argued that the EPO should take into account the way he is treated under German tax law (i.e. as being legally separated and therefore not enjoying the tax relief enjoyed by married taxpayers) when calculating his tax adjustment, specifically, that using the table applicable to married couples was unlawful. The EPO again reiterated the point that a pensioner’s status under national taxation law is not relevant to the way it interprets the Pension Scheme Regulations and the Tribunal held in Consideration 7, that “under the Pension Scheme Regulations, the status of a pensioner under German tax law is irrelevant for the purpose of determining the tax adjustment”.

6.8. The EPO appears to want to ‘have its cake and to eat it’, but in doing so, it seems to have introduced illogicality, contradiction and inefficiency into the Pensions Scheme Regulations which have hitherto worked well and efficiently, such that they may now be unworkable.

7. CONTRARY TO THE EFFICIENT FUNCTIONING OF THE OFFICE

7.1. While cost-cutting is a fact of life for many institutions, the very substantial administrative and actuarial burden of pursing the proposed changes is such that not only is there no evidence that the amendments would deliver savings, but the situation may in fact be quite the opposite. Further and in any case, the ILOAT has held that hypothetical financial difficulties in the future do not provide justification for unilaterally departing from the system it had adopted8.

7.2. For the pensioners and their beneficiaries the new system will be a heavy administrative burden, in particular, in cases where the pensioner has incomes from other sources. The list of uncertain and unclear facts is long, but among others, pensioners are, of course, residing in different countries, and as such, it will be extremely difficult to find a common solution for the presentation of their yearly tax assessment without inflicting undue hardship and instability on these former staff members.

7.3. Each member state has a different national tax system and this will not contribute to the stability of the newly proposed tax adjustment amendment. The proposals do not provide any suggestion in this respect and it would seem that the administrative costs relating to the introduction of the proposed reform have been significantly underestimated. No details have been provided in respect of who will take care of the administrative difficulties in processing tax assessments from former staff members or their surviving beneficiaries residing in 38 different member states, provided in more than 20 different languages. Indeed, it does not appear from CA/93/15 that this point has been considered, let alone costed with the appropriate bureaucracy factored in.

7.4. For example, there are cases where two tax assessments relating to different years are issued in the same financial year and there are other cases where the tax assessment is finalised two or three years later, such as in the Netherlands, as
_____
8 ILOAT 3324 (2014) although it should be noted that this case may be distinguished on the basis that it concerned the non-application of existing rules and a recommendation, and not the amendment of regulations, as in this instant case.

allowed by the national law9, or even longer when the assessment is subject to a legal suit or an examination by the tax authorities. Furthermore, in the example relating to loss relief, this is often only realised and claimed back several years after the initial investment is made. It is, perhaps, regrettable in this regard that national taxation laws are considered to be ‘irrelevant’, for the amendments taken without consideration of the same may well lead to perverse effects in respect of the payment of tax adjustment such that some pensioners may not be able – by design – to comply with the requirements of the Pensions Scheme Regulations.

7.5. The amendments state, per Article 42(4), that a failure to provide the relevant tax returns may result in the pensioner’s right to the tax adjustment being extinguished. Incredibly, there is no time period specified, after which a pensioner would be deemed ‘non-compliant’, it appears unclear from the text whether the loss of the right to the adjustment will apply only to that year or permanently, and further, the requirement that the pensioner “refund any amounts unduly received” is left undefined. How is it possible to know whether sums have been unduly received, if no tax calculation is known? Who is to decide whether a sum has been unduly received and according to what criteria?

7.6. The introduction of the proposed amendments will leave all existing and future pensioners with a one or two-year gap in their income since the compensation will be paid only after evidence of the tax payment has been provided. The Office could continue to pay the tax compensation on a monthly basis and settle any difference with the amounts that it considers due at a later stage, as it does for the education allowance, for example. Indeed, education allowance and daily allowances are all paid in this way in order to avoid having to collect, manage and process complex individual data that are likely to lead to administrative overhead costs, higher than any sums gained.

7.7. Furthermore, it seems that no regard or consideration has been given to the apparent vicious circle that the proposed amendments will introduce. EPO pensions are not exempt from national taxation and for the same reason, nor are
_____
9 Dutch General Tax Law, Article 11, para 3 states that the establishment of the tax assessment expires three years after the date on which the tax amount is due.

any adjustments. As such, the tax adjustment will itself have to be declared as taxable income. This will result in the situation where the declaration of taxation to national authorities in a year is, by definition, not accurate, for the amount of the adjustment will not have been paid and accounted for; as such, the amount of the adjustment will, itself be inaccurate, for it will be based on a lower tax figure which does not include the adjustment. Then when it is paid (at the wrong rate, since it is based on a necessarily inaccurate tax declaration), it will result in a higher and inaccurate level of income for the following year which will, yet again, render any following tax declaration and consequently, the next adjustment figure, inaccurate. This may, for some pensioners, result in a substantial decrease in income.

7.8. It is also unclear why pensioners should be compelled to disclose their financial situation and tax paid to their former employer. This may raise data protection issues in most of the member states. The requirement to disclose each pensioners personal financial situation will indiscriminately hit all present and future pensioners, whilst the office will simply disregard those who actually receive a lower tax adjustment than they pay and so are of no interest to the Office.

8. CONCLUSION

8.1. In seeking to impose the proposed amendments, the Office – the former employer – would be seeking not only to pry into the personal affairs of the pensioner, but may in fact effectively be benefiting from his or her losses.

8.2. It seems clear from the proposals that they are difficult to understand, for they are lacking in clarity and detail, and are liable to cause instability. No proper consultation, assessment or analysis appears to have been carried out and no justification has been provided for departing for the existing, tried and tested system.

8.3. Furthermore, there is an inherent logical lacuna in the proposals which contradicts the previously stated position of the Office – one which has been upheld by judgments of the ILOAT. It is not possible, to take no account of personal

circumstances on the one hand, whilst effectively requiring disclosure of and benefitting from, the same on the other hand.

8.4. It would seem that a cogent argument can be made in resisting the proposed amendments. Those charged with approving the proposals should surely require a fully-costed actuarial assessment with a full impact assessment and account of how the administrative and cost burden will be dealt with; but also how such additional challenges can be justified. To do anything less would appear not only to be negligent on the part of those charged with approving the proposed changes, but also indicative of reckless disregard for how operating funds are spent.

If we can assist further or if you require clarification in respect of any of the points above, please do not hesitate to contact us.

Jordan Howells

Barrister
(England and Wales)

Ludovica Moro

Avvocato
(Italy)
European Qualified Lawyer
(England and Wales)

Monday, 14th December 2015

To emphasise 8.2 (above): “It seems clear from the proposals that they are difficult to understand, for they are lacking in clarity and detail, and are liable to cause instability. No proper consultation, assessment or analysis appears to have been carried out and no justification has been provided for departing for the existing, tried and tested system.” █

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