Virgin Media Phorm Webwise Adverts [Updated: See Post No. 1, 77, 102 & 797]

[SMHarman]

Originally Posted by GuestUK

So, to clarify from the reports that I've read - Carphone Warehouse is going for opt-in, BT is establishing a proper opt-out (not just the fake cookie "pretend opt-out" used for press), but Virgin Media is standing ground of having a fully unescapable system? Or am I mistaken (please)

VM has gone quiet on this. VM's logo has been removed from the Phorm site which could mean VM is quietly backing away from this as BB is their cashcow revenue stream and the new C level team would not want to be seen damaging that.

---------- Post added at 09:19 ---------- Previous post was at 09:18 ----------

Originally Posted by popper

mark
Ohh Yuck bright green, , plain black with bold is far better,see....

It was St Pattys day.

---------- Post added at 09:24 ---------- Previous post was at 09:19 ----------

Originally Posted by daemon

There is still a route of action which we can follow. There have been a number of posts to this thread suggesting the use of Firefox and Adblock Plus. If we adopt the use of these technologies en-masse then we deny Phorm their source of revenue by not following links to targeted advertisements.

Does that deny revenue? I don't know how their model works with advertisers, is it click through which means it will deny or is it per serving. With what you detail above, the ad is still served, it is just not visible as you have blocked the final display. The advertiser pays for the serving, the viewer never sees it and Phorm takes their cut.

[AlexanderHanff]

Since I was quoted here I thought I should register and share another important point most people are missing.

IF you "Opt In" to Phorm you could be criminally liable under RIPA, see below for a more detailed analysis of this which I posted on El Reg comments last week:

By accepting the Terms and Conditions and giving your ISP permission to intercept your communications you may actually be opening yourself up to criminal liability under RIPA.

As mentioned a multitude of times, consent is required from all parties for the interception of communication; by communicating with someone else with the knowledge that there is going to be an interception without the consent of the other party(ies) you could be deemed as complicit. All sort of cans of worms could be opened such as aiding and abetting; conspiracy and entrapment.

You could also be opening yourself up to Copyright Infringement offences such as Secondary Infringement and Vicarious Infringement. BT et al should be reminded that Copyright Infringement becomes a criminal offence where commercial gain and profit are involved; and since this is a profit based system (the ISPs get a cut of the advertising revenue) it seems to fall under criminal copyright law.

I am not aware of any case law in the UK which covers these points explicitly (but that doesn't mean it doesn't exist) however, there is case law elsewhere in the world. If I remember correctly there has been at least one case lost see:

Kelly v. Arriba Soft Corporation (336 F.3d 811(CA9 2003))

http://netcopyrightlaw.com/pdf/kelly...nt03182004.pdf

It should be noted that even in the case of Perfect 10 vs Google (which was originally judged in favour of the Plaintiff (Perfect 10) and then overturned on appeal) Google only managed to get the the ruling overturned on Fair Use arguments. Fair Use arguments don't work in the Phorm situation because there are differences. Google Images only created a derivative works in the form of a thumbnail which then linked directly back to the websites they came from. Phorm is copying the entire page using an illegal wire tap, so I don't think they could use the same arguments of Fair Use.

See also:

http://www.jurpc.de/aufsatz/20020029.htm (in German sorry)

which basically covers the situation regarding caching of websites in Europe with regards copyright law and reinforces that it is actually Copyright Infringement under European Law.

See also:

http://www.archive.org/iathreads/pos....php?id=119669

The above stemmed around Archive.Org (aka WayBackMachine) and the courts accepted that the Plaintiff had a case for the court to hear with regards breach of contract, based on the Terms and Conditions she had on her website which were breached by Archive.Org when they cached her pages.

Obviously Archive.Org settled out of court so no judgement was ever received, but they did acknowledge the infringement in their press release.

My advice to website owners who do not wish to have their pages intercepted and copied by Phorm systems (or indeed any other such systems) would be to add some Terms and Conditions to your website explicitly refusing the right to copy the pages and would then be covered under copyright law, contract law and RIPA as I understand it. If the Home Office want to try and throw around the implied consent argument, then it cuts both ways. Phorm accessing the website are bound by your Terms and Conditions through the same implied consent and would therefore be in breach of contract should such terms as "Phorm may not access or copy this website under any circumstances" appear in those terms. So potentially, a lot of popular forums could make a boat load of money from suing ISPs and Phorm for Copyright Infringement and Breach of Contract and even possibly bring criminal charges since the infringement is being used for commercial and financial gain.

Even if there is a slightest chance that my statements above are correct, they are reason enough alone, not to allow the interception of your communications.

So in the words of Nancy Reagan "Just say No!" [to Phorm]

Do you really want to take the chance? Do you honestly think BT wouldn't use you as a scapegoat in criminal proceedings?

[SMHarman]

Originally Posted by popper

an AC on
http://www.theregister.co.uk/2008/03...egal/comments/

posted a generic web notice, will cableforum be placing something like this here?

"
New section added to my website's Legal Notices

By Anonymous Coward
Posted Tuesday 18th March 2008 10:23 GMT
After taking a little bit of advice, I've added the following to my website's legal notices page. Takes any doubt out of me giving any implied permission to profile.

"Profiling.
With the exception of recognised search engines as part of their standard service in directing Users to their first page on this Website, We give no permission, implied or explicit, to any service seeking to intercept or profile any internet traffic between this Website and any Users.

Any service seeking to intercept such traffic without prior written authorisation from Us shall be deemed to be making an unlawful interception."

You have to remember a bot is not intercepting. It is requesting just like a user does. If it is not an authenticated user then it will only be able to view the public pages. Phorm will view all traffic, even the authenticated stuff.

---------- Post added at 09:34 ---------- Previous post was at 09:28 ----------

Originally Posted by AlexanderHanff

So in the words of Nancy Reagan "Just say No!" [to Phorm][/I][/B]

Welcome, also Zammo and all the rest of the kids from Grange Hill.
http://www.archive.org/details/Funny...lJustSayNoSong

[AlexanderHanff]

Originally Posted by SMHarman

You have to remember a bot is not intercepting. It is requesting just like a user does. If it is not an authenticated user then it will only be able to view the public pages. Phorm will view all traffic, even the authenticated stuff.

In the same breath by "requesting" authenticated data the Phorm software could be seen as "hacking" the site it is requesting the authenticated data from by masquerading as an authenticated users. This leaves concerns under Computer Misuse Act and probably the tort of Trespass to Chattels.

Alexander Hanff

[EDIT]
Thanks for the welcome and the nostalgic reference to Grange Hill who I believe were all high as kites the day they met Nancy?

[ceedee]

Originally Posted by daemon

As Virgin Media have contracted with Phorm I think we can assume that monitoring equipment is in place and we have little chance of changing that fact.

That's a bit of a leap, daemon. All VM's recent public statements suggest that adopting Phorm is still under review.

There is still a route of action which we can follow. There have been a number of posts to this thread suggesting the use of Firefox and Adblock Plus. If we adopt the use of these technologies en-masse then we deny Phorm their source of revenue by not following links to targeted advertisements.

IF VM decide to go ahead with Phorm, then that's one course of action.
But it won't have much of an effect unless the majority of VM's broadband users can be reached and persuaded to do the same -- you and I are a drop in the ocean! And of course, reducing the value of the adverts may force Phorm to exploit more of your data to stay solvent!
Alternatively we could deliberately seek out Phorm-placed ads and click on every one!

But the adverts themselves (although the primary motivating factor) aren't the real problem with Phorm, as Tim BL pointed out yesterday: it's the ground-breaking, clickstream monitoring that should be our focus.

So, do something proactive, install Firefox and the Adblock Plus and Adblock Filterset.G updater plugins and send a message to Virgin Media and Phorm that users are prepared to deny them revenue from our surfing.

Sorry but VM and Phorm will not get your message: I doubt they'll even notice that you're not seeing ads.

Sign the petition, educate other VM users (and those of BT Retail + TT), write letters of complaint to the ISPs and your MP: cause a fuss now!

[SMHarman]

Originally Posted by AlexanderHanff

In the same breath by "requesting" authenticated data the Phorm software could be seen as "hacking" the site it is requesting the authenticated data from by masquerading as an authenticated users. This leaves concerns under Computer Misuse Act and probably the tort of Trespass to Chattels.

Alexander Hanff

Oh, don't get me wrong I'm not agreeing with any of this, just the wording to the addendum to T&C is not the most elegant. A bot can only do as much as any other internet user which by implecation you allow access to the site, in fact, a bot abiding by the rules can be steered clear of places you don't want it to go /img, /mail /cgibin etc. A hacker can target those.

[AlexanderHanff]

Originally Posted by SMHarman

Oh, don't get me wrong I'm not agreeing with any of this, just the wording to the addendum to T&C is not the most elegant. A bot can only do as much as any other internet user which by implecation you allow access to the site, in fact, a bot abiding by the rules can be steered clear of places you don't want it to go /img, /mail /cgibin etc. A hacker can target those.

Yes I agree, my post was not a criticism. This is why I haven't posted a set of default terms yet on http://denyphorm.blogspot.com/ because I want to make sure the terms are legally "elegant".

Alexander Hanff

[popper]

"just the wording to the addendum to T&C is not the most elegant"
hence my something like this

BTW Alexander, did you read florences linked post one page back
#1352

i didnt get around to posting it on your blog
http://denyphorm.blogspot.com/

what do you make of SMHarman's points post i bumped yesturday
#1346
the Page 7 Para 7 part being the most interesting.

exporting my data, dont think so matty, send that DPA Notice and remove that exporting right TODAY if you havent already.

[lucevans]

I have got the domain webwise.com listed in the domain block access list in my router, and until now any attempt to load the page www.webwise.com results in a time-out and page not found in my browser.
As of this morning, this page now loads and dumps a session cookie on my hard drive. I've checked the domain blocking list and webwise.com is still there. How is this happening? I'm not a particularly techie person: am I missing something here? Or have Phorm been changing servers quietly in the background to try and stay ahead of things like the dephormation plug-in (which I can't use as I don't use Firefox).
A quick check of my router log confirms that the block rule for webwise.com is not being broken when this page loads, but if I try to visit a page from another domain in my block list (e.g. www.phorm.com), it's blocked and the log reflects this.
Help!

EDIT: Okay...this is weird...webwise.com is now blocked again, but I didn't change anything! It was definitely accessible for 10-15 minutes.

[AlexanderHanff]

Originally Posted by popper

"just the wording to the addendum to T&C is not the most elegant"
hence my something like this

BTW Alexander, did you read florences linked post one page back
#1352

i didnt get around to posting it on your blog
http://denyphorm.blogspot.com/

what do you make of SMHarman's points post i bumped yesturday
#1346
the Page 7 Para 7 part being the most interesting.

exporting my data, dont think so matty, send that DPA Notice and remove that exporting right TODAY if you havent already.

I haven't read the /. article yet I have it on my list of things to read before the end of the day. But as regards SMH's reference, yes it is rather scarey especially when you look at the registration info that Phorm have used with ICO under DPA as a Data Controller and when you look at the Phorm patent.

Interestingly enough Phorm now have a London address registered and showing on the London Stock Exchange's website. I am presuming it is just one of those fake offices where a company answers the phones and receives/forwards mail. I would never suggest that antisocial behaviour is an option for dealing with Phorm, but I wouldn't shed any tears if a picture was posted with a huge anti Phorm slogan spray painted onto the front of their UK registered office.

Alexander Hanff

[popper]

strange, is this a compulsive gamblers thing?

does anyone here understand the markets and can explain this shorting thing?.

http://www.iii.co.uk/investment/deta...ail&id=3960173
2100 : 2075 (-7.07%)
johnny arrowmaker
Subject Shorters heaven - ;-)
Message

So now it starts - bear stearns, northern rock et al need to make some money urgently - brokers looking for a way to recoup major losses, so this one looks good.

Tacky product that hardly any consumers want, that may be illegal on a number of fronts, relatively high unit share price.

Management and executive who are blind to the problems ahead, but are keen to spend their ultimate bosses' investment.

Also, it appears that the criminal fraternity can't wait for this product - put them in touch with all of the people in the country interested in valuables and investments x, y and z. Way to go - if a break in occurs as a direct result of the involvement of phorm, does that make phorm legally liable?

So the recommendation to you all is buy, buy, buy. Make no mistake, the shorters will play the opposite game. Game will shortly be on!!

"

[kt88man]

Maybe 'johnny arrowmaker' is a ramper.

Rampers - people who own the share and talk the price up to dump it and make a fast profit.

Shorters - people who have promised to provide the shares to someone else at a future date, and are talking the price down to get it cheaper and make a bigger cut.

He raises an interesting point in his 4th paragraph though...

[Barkotron]

Shorting is if you think prices are going to go down: you sell a bunch of shares you don't actually own at a high price, in the hope that by the time it comes to settle up, you can buy them at a much cheaper price, and pocket the difference. I've never managed to work out if you have to borrow them off someone somehow, or if you can just sell stuff you haven't bought yet. I think there might be a legal distinction here.

E.G. (I think - anyone who actually knows for certain how this works please chip in) - Phorm shares are at 2200p. You think that by the end of the day they'll be at 1500p, so you agree a deal to sell, say 10,000 shares to someone for 2200 and arrange to settle up at 5pm. At, say, 4.50pm, they've gone down to 1600, so you buy 10,000 at 1600 and pass them on to the person who's given you 2200 for them when that purchase falls due. This then gets you a nice little profit of £60,000.

Of course, if the share price rises between the time you make the deal and the time you have to settle up, then you've lost out: in the example above, if the shares go up to 2500 by 4.50pm, you've lost £30,000.

It's a weird way of doing things - it was illegal here at one point, although I'm not sure if it still is. I'm guessing it's not.

[Slim at UN]

News in from BBC

http://news.bbc.co.uk/1/hi/technology/7301379.stm

Slim

[manxminx]

Hia Slim, where you been, that's yesterdays news! Try to keep up, there's a good chap.