Creative Commons FUD

It was meant to happen sooner or later. Creative Commons is now a target of Fear, Uncertainty and Doubt (FUD). The Register has this interesting comment on a panel debate discussing CC licences. According to the report, the ex-chairman of the British Phonographic Industry (BPI), Fran Nevrkla, described CC licences as the product of “learned professors living in rarified luxurious environment supported by public funds”. He has obviously been to my office (note the tone of irony and bitterness in my typing). Emma Pike, the director of British Music Rights even recommended musicians to use Kazaa rather than Creative Commons. Somebody must be afraid. Mind you, this is the same Emma Pike who wrote this, where we are told that the only musicians who should ever consider CC are hobbyists, Gilberto Gil and David Byrne.

Something that bothers me about these types of attacks is that they are uninformed, and based on the assumption that there is something wrong with people who are willing to offer their work under different conditions to the same old proprietary model that only benefits a few lucky creators. I think that some of these industry-types are truly baffled by those who do not want to live their lifestyle an continue to accept the myths about the struggling writer and the garage band that will be affected if we don't have more IP protection.

Update on GPL case

The case reported two days ago about the GPL has been settled, and Fortinet has agreed to comply with the GPL. This means that Fortinet's software will be distributed with the GPL, the standard terms of agreement will be changed, and the source code will be offered upon request for the cost of distribution.

A victory for the good guys (or a victory for the godless communist anarchists, depending on your point of view).

DVD protection ruled illegal in France

The Paris Court of Appeals has ruled against the copy protection mechanisms included in DVDs, called Content Scrambling System (CSS). Not too long ago the same mechanism was being enforced in American and Norwegian courts, and now they are declaring that the technology is a bit dodgy. The case was brought by a French man who wanted to transfer his copy of Mulholland Drive into VHS format to watch with his mother (I will not make any wise comments about how unwise it is to watch a David Lynch movie with your parents). He was not able to do it because of the copy protection built-in the DVD, so he brought a case against Les Films Alain Sarde and Studio Canal. The court apparently has ruled that copy-protection is incompatible with private copying rights. The court also found that the labeling on the DVD is inadequate, as those with copy-protection have small CP letters, and this might confuse consumers.

It is quite refreshing that we are getting a number of progressive rulings on intellectual property around the world. Is it possible that courts are finally understanding that copyright owners have been getting all of the protection that they want for far too long? James Boyle has an excellent article in FT.com deconstructing the stupidity of some IP protection. Copyright industries have gone unchallenged for too long. Viva la Revolución!

GPL granted an injunction in Germany

German courts continue to give credence to the GPL. A software company called Fortinet developed several security products, including firewall and anti-virus software. This was supposed to run on something they called "FortiOS", which they claimed was their own operating system. The problem is that this operating system was actually largely based on the Linux kernel, which is licensed through the GPL. Not only did they do this, but they tried to hide this fact through encryption. GPL-violations.org sent a cease-and-desist letter, but Fortinet failed to sign it. Free Software advocates then asked for an injunction against Fortinet in the Munich district court, where they have obtained a preliminary injunction banning Fortinet from further distribution of the offending software until they are in compliance with the GPL.

This is welcome news, and continues to erode the arguments of those who think that the GPL is not valid (usually made by Microsoft and its minions). I am also struck by how the German courts are so willing to embrace the GPL, as they have done before. I remember being in a conference where a German professor assured me and the audience that a German court would never find the GPL enforceable.

Enter the virtual economy

Sony is about to open Station Exchange, a shop for virtual goods in Everquest, one of its most popular online computer games. The idea behind the website is that users will have a sanctioned site where users can exchange their game goods. For example, if you buy a level 50 character, or a Flaming Sword of Justice™™, then you can do it with the certainty that you will indeed receive the items and will not be subject to a scam, which apparently happens in "unsanctioned" auction sites. Online auction sites are filled with the sale of virtual items that are only available to players that have put a lot of time and effort in obtaining them. These cost money, and there is a real-life economy of virtual goods and characters. The real reason for this new site is that Sony has realised that there is money to be made here, and they want a piece of the action.

There is little doubt that the virtual economy is growing. According to Terra Nova, the virtual economy is worth between $4 billion and $7 billion USD, equivalent to the economy of Namibia or Jamaica, depending on which figure you take. I must admit that I am extremely skeptical about these figures, so I will reserve my comments until there is a more thorough study conducted. Regardless of my doubts, the value of the virtual economy is significant.

Google and more privacy threats?

When did Google join the Dark Side? It is difficult to say. One could argue that they took the first step with GMail, but I think that it happened when it became the de-facto internet search engine and obliterated its competition. Now Google has a new service that should send shivers down privacy advocates' spines. You can now login to Google and keep track of your searches. I don't know about you, but I will never sign up to something like that because I think that my web searches say too much about me. Yes, I have lots of searches on Anime and computer games and the such, but my preoccupation is much more basic than worries about typecasting and geek stereotypes. Internet searches would record anything: your shopping patterns, how much time you spend researching about a subject, your tastes, preferences, likes and dislikes, who are you keeping an eye out for, political and sexual preferences, bittorrent searches and the like. Too much power, and I cannot trust Google anymore not to sell that information to data miners.

Nigerian scams go glurge

This is probably not a Nigerian scam, but I don't know how else to call it. I received it yesterday, and was struck by the change of tactics from scam writers. People are now better informed and will instantly be suspicious of any offer from dodgy bank officials from Ouagadougou, or former Baath-Party politicos from Iraq looking to deposit Saddam's gold in your account. This new scam I think is playing to the glurge gallery (Glurge is the term used by Snopes to refer to sickly-sugary emails that are sweetly disgusting, like the Alaska one). This email plays on religious feelings in a strong way:

Hello,
My name is Mrs.Jennifer Wilson I am a dying woman who have decided to
donate what I have to you/ church. I am 59 years old and was diagnosed
for cancer about 2 years ago,immediately after the death of my husband, who
had left me everything he worked for.
I have been touched by God to donate from what I have inherited from my
late husband to you for the good work of God,rather than allow my
relatives to use my husband's hard earned funds ungodly.Please
pray,that the good Lord forgive me my sins.I have asked God to forgive me and i
believe he has because He is a merciful God. I will be going in for an
operation,and i pray that i survive the operation.
I have decided to WILL/donate the sum of $1,500,000 (One million five
hundred thousand dollars) to you for the good work of the lord, and to
help the motherless,less privileged and also for the assistance of the widows.
At the moment I cannot take any telephone calls, due to the fact that
my relatives are around me and i have been restricted by my doctor from
taking telephone calls.presently,my WILL have been adjusted and my
lawyer has been notified.
I wish you all the best and may the good Lord bless you abundantly, and
please use the funds well and always extend the good work to others.
Contact me through this email address jenniferwilson59@rushpost.com if you
are interested,so that i can feed you with the information on how to
claim the funds of($1,500,000.00).I know I have never met you but I have
been directed to do this by God,and i hope you act sincerely.
NB: I will appreciate your utmost confidentiality in this matter until
the task is accomplished,as I don't want anything that will Jeopardize
my last wish, due to the fact that i do not want relatives or family members
standing in the way of my last wish.

Regards,
Jennifer Wilson

I think that I need an Alka-Seltzer now.

WIPO Seminar on Copyright and Internet Intermediaries

Colleagues Charlotte Waelde and Lilian Edwards were the keynote speakers at WIPO's Seminar on Copyright and Internet Intermediaries. The preliminary reports from the seminar are quite interesting. For example, EDRI-Gram has a comprehensive review of the proceedings (not online yet at the time of writing this), but it has a very good write-up about what my two colleagues did (congratulations Lilian and Charlotte). The report says:

The opening keynote speeches by Lilian Edwards and Charlotte Waelde from the AHRB Research Centre in Intellectual Property and Technology of the University of Edinburgh provided the audience with an excellent overview of all the issues related to provider liability for content provided or shared by their customers. Edwards started with the problematic definition of 'service provider', which now also includes online auctions, search engines, RSS feeds, blogs, chat-rooms and price comparison sites. In the period leading up to the year 2000 governments were hesitant to regulate liability, fearing it would disturb the nascent market. But after 2000 the market was mature enough and governments and the entertainment industry were dissatisfied about the lack of self-regulatory solutions. The EU E-commerce directive from 2000 then forced a compromise by distinguishing in possible liability for hosting third party content and no liability for mere conduit and temporary caching. Charlotte Waelde analysed the jurisprudence of the different court cases against producers of P2P software, both in the US and in the Netherlands. She concluded that it is crucial for the liability question in P2P cases to determine whether the ISP is somehow authorising the infringement, or whether an ISP is entitled to presume that facilities will be used in accordance with the law.

Very interesting stuff, I can't wait to hear more about the meeting.

P2P activism, boycott music and DVD sales

This is a call to arms to all of those who have ever downloaded content from the internet not to buy any music or movies during the last week of April (25-30 April). The intended outcome is to demonstrate that music downloaders are a powerful buying force, and that if they decide to boycott the music industry, this will be felt in some way or another. I am not sure how they are intending to measure the effect of the campaign, but I am supporting them. So, wait until may to buy your new DVD.

Virtual Worlds, New Worlds?

(N.Y. Times article, you know what to do). This article deals with the making of Tho Fan, a new language created specifically for the computer game Jade Empire. The language joins Klingon and Elvish (sorry, Quenya, Sindarin and Telarin) as one of the growing number of invented languages created to give fiction more depth. It is interesting that language is so important to lend credit and depth to a story; possibly because language often shapes how we think and how we explain the world around us.

To me this is just another example of the cultural significance that computer games are acquiring in modern society. There can be little doubt now that games are now an art form, as worthy of scholarly interest as movies, theatre and dance. Games are increaingly displaying sophisticated storylines, character design, interactivity and complexity. I would even say that games have a greater potential than many other art forms. For example, in film and theatre you are presented with sealed stories that you must accept as given. With games, you are often the protagonist, and you may actually write your own story as you go along. Better AI and more complex gaming options allow gamers can choose how a story or a character develops. Then, there are huge virtual worlds in the shape of MMORPGs where users can interact with people from around the world (or from the closest server).

Does this have anything to do with the law? It could. To me, the most interesting thing about games, and particularly about MMORPGs, is that they are a large experiment on regulation and law-making. How do people deal with a vast new online world where they can do what they please? Do players revert to the basest human impulses and descend into anarchy? Does altruism exist in virtual worlds? How do players regulate their actions? Do they rely merely on the game makers to act as law-makers? Are there different social norms that affect virtual players? Does the architecture of the game determine the behaviour of the world?

Mixed reaction to Creative Archive

The advertisement of the Creative Archive has raised a bit of a stink amongst certain circles. There are some neutral reports, like this one in Wired, or the one in The Guardian. The CC-UK list has given the licence a lukewarm reception, with downright negative vibes coming from the Friends of the Creative Archive list. Others have concerns that the licence is not compatible with Creative Commons (one may want to ask "so what?"). Others have concerns about the No-Endorsement clause.

I am slightly concerned about the snipes from the Creative Commons orthodoxy about a new licence model. Why should the BBC follow the CC model if it doesn't fit? To me it is much better to have loads of content released under an open licence, whatever that licence may be. I do not believe that all free and open source software should use the GPL, or the BSD licence; one of the great things about open source is that you can choose your licence. I am afraid that the open access and creative movement may be moving towards the monopoly of Creative Commons and the use (and abuse) of McLicences. Compatibility is nice, but complaining about breaking with CC orthodox belief is just silly.

Good reading on open source

There are several links that I want to highlight about open source software in general. First there is the ongoing "A history of Free and Open Source by Peter H. Salus, who is serialising the book in Groklaw. Here is the introduction. Then there is a good article about the SCO case by Groklaw's Pam Jones. Then (courtesy of Anne-Kathrin Kuehnel), there is this online book in Spanish called "Software libre; técnicamente viable, económicamente sostenible y socialmente justo" by Jordi Mas i Hernández. Looks like a good introduction, but it is a bit basic for those already familiar with the subject.

P2P traffic unaffected by suits

There have been claims by the music industry that suing users works, and that there has been a decrease in P2P use. This is not supported by the facts. According to a new study, P2P network traffic rivals normal web browsing, and the P2P traffic in North America has been unaffected by the suits. Moreover, there appears to have been an increase as the publicity brings more people to see what the news are talking about.

This is deliciously ironic. The RIAA and the MPAA are actually increasing file sharing. Priceless.

Creative Archive Licence, a blow to Creative Commons?

The Creative Archive Licence(CAL) is now online. This is an open licence from the BBC, the BFI, the Open University and Channel 4, and it covers a large amount of works owned by those four institutions which are offered for the purpose of reuse and adaptation, in other words, they empower the mix culture.

CAL is a very nicely drafted licence. It emanated from the fact that the BBC was not able to use Creative Commons licences in order to release their footage because they needed a licence that was jurisdiction specific (or more precisely, jurisdictions specific). I am told that this is because the BBC has a duty to provide content to licence-fee payers, but it actually makes money from international licensing of its archive (yes, I remember seeing Dr. Who in Spanish). Nevertheless, the CAL is heavily influenced by the Creative Commons licences - CC allows their licences to be modified without their consent, but they cannot call themselves "Creative Commons".

The licence allows reuse and remix by letting users copy, share, create derivative works and copy and share them on any platform and in any media. The licence has 5 elements (instead of CC's 4 elements). CAL allows the copy and reuse as long as it is not distributed for commercial purposes, it is distributed under the same licence, the author is credited, there is no endorsement or derogatory treatment, and it is only shared in the UK. These two last elements are the novel ones in CAL, particularly because CC licences are not territorial (but offer choice of law clauses), and this one is very territorial.

What I like particularly about CAL is that it really thinks hard about some elements that Creative Commons does not go into, and this is the pesky problem of non-commercial abuse. This has been eloquently expressed by Bill Thompson, both in his column and in a recent panel meeting in Edinburgh. This is particularly important for public works, which could be abused by using them to promote all sorts of purposes that may go against the public interest. The example is always used of the BNP using works distributed with a CC licence. While I agree that dealing with the moral element is an important advance in open licensing, my concern is that this adds a rather problematic subjective element to the licence because it states that the work cannot be used if it brings the owner's reputation into disrepute. This is clear if the BNP uses my photograph to warn about the swarm of Costa Rican academics invading Britain, but it may not be so clear in other circumstances. What if the owner doesn't have a sense of humour, and the work is used in a comedy setting?

Nevertheless, this is a very good step, and it shows that customisation of licences is the way to go. Trying to get everyone in the creative industries to choose the same licence is like herding cats.

IBM continues its good work with software patents

(NY Times link, remember to use Bugmenot). IBM is opening up its intellectual property. Yes, this is similar to the much publicised legally binding promise of non-enforcement issued last January, but it goes further, and it provides a serious philosophical shift about how companies should use their intellectual property. IBM is prepared to rethink the way in which it does business by making sure that basic technologies and standards are kept open, so that the entire industry can innovate at a faster rate.

I think that industries are finally realising that they cannot continue as they have been. The rise of the patent troll has generated understanding in big corporations that there is something rotten in the patent system, but it must be said that they are complaining and blaming firms for using the system as it exists. We have been told time and time again that innovation will only take place if there is an incentive to innovate, namely a patent monopoly right. However, it is becoming clear that innovation takes place in different ways, even when people share or give away some of their intellectual property. If this is the case, then the traditional justifications for intellectual property must be wrong, and we need to revise the whole premise that stronger protection is needed across the board.

This is highly inflammatory stuff in some circles. I am subscribed to a patent news list, and the writer is almost foaming at the mouth at the prospect of software patent reform in the United States, calling IBM hypocrites because they have profited from the filing of patents. That they may be, but they may still be right. Patent lawyers (and patent trolls) are the ones who are set to lose the most from treform of he current environment of software patenting in the United States, and Europe should take notice.

It is all about the content

The internet is all about the content. This seems like a bleeding obvious statement, but it is amazing how little understood this is. Content is difficult to create. Sitting every morning looking for today's post is in fact a bit difficult, and I guess that it would be incredibly easy just not to bother and not write any opinions whatsoever, just links. But this is not what blogging is about, I think. The whole point about the internet is that people interact, share ideas and opinions, find useful information and use it and reuse it for their own benefit.

So, content is what people are looking for, and this is why Google has become so important. We want content (text, pictures, opinions, news, poetry, song lyrics), and the search engines help us to get it. IT is becoming increasingly obvious that content also needs to be free of charge, people will be less likely to pay for content when there is so much free one out there. So who pays for all the content? Is it just hobbyist academics? Is it just well-intentioned people who like to share ideas? When you really look at the internet, you realise that it is the largest socialist experiment in history. In strict capitalist terms of markets, costs and rewards, it should not work. Why would people give-up their free-time to provide content?

I don't know, ask millions of bloggers around the world. I guess that there is the hope that there is somebody out there reading.

Another software patent article in Linux Insider

This is a dreadful article by yet another software patent lawyer in Linux Insider. It praises software patents American style, without shame, just like that, as if the system in the U.S. was not broken! Only a software patent lawyer can state such idiocy and claim that the system in the United States is fostering innovation. A cursory glance at the software landscape shows that small and medium software companies are suffering from submarine patents, and afraid that they may be infringing a patent that protects basic ideas. The amount of bad patents out there is staggering, which has been made more evident by the rise of the internet.

An example of a bad software patent is Test.com's patent, which is held over test and exams performed through the internet. This is so broad and obvious that I cannot even begin to comprehend how it was awarded.

WTO Dispute over online gambling

There has now been a result in a WTO dispute between Antigua and Barbuda and the United States regarding restrictions to online gambling. The two Caribbean countries brought the dispute against the United States because they claimed that its restrictions towards online gambling included in three pieces of legislation (the Wire Act, the Travel Act and the Illegal Gambling Business Act) went against their obligations in the General Agreement on Trade in Services (GATS). The case was also brought against legislations that regulate online gambling that exist in 8 different states (Colorado, Louisiana, Massachusetts, Minnesota, New Jersey, New York, South Dakota and Utah). It was argued that the United States could not impose blanket prohibitions against online gambling because it did allow distance-betting under some circumstances, and that the prohibitions established discrimination for foreign suppliers of services.

This is a very complex case that shows just why the international dispute settlement is so important for international trade. In the first instance of the dispute, the panel ruled against the United States. The Appellate Body has produced a ruling that is more favourable to the U.S. than the previous one, but it has still considered that the three federal acts mentioned are in violation of the country's responsibilities in GATS, and has recommended that the U.S. should take steps to comply with these. It seems like the legislation will have to be amended in some way. As this article points out, it is unlikely that the ruling will do anything to stop online gambling, the existing legislation is difficult to enforce.

The important question is, are Antigua and Barbuda in the song Kokomo?

BILETA 2005

I have just returned from sunny Belfast, where this year's BILETA Conference was held (BILETA is the British and Irish Legal, Education and Technology Association). I must say that this was an excellent conference, very good quality of papers all around, with enough discussion in most of the sessions. I particularly enjoyed a paper about blogs from Prof. Tang Hang Wu (picture attached). The conference kept the promise of being exceptionally critical. Next year's conference will be in Malta. Nice.

The Chewbacca Defense lives on

Johnnie Cochran died last week. He may be better known as one of the defense attorneys in the OJ simpson trial, but he has a much larger claim to internet fame: he is the inspiration for the Chewbacca Defense, which is used (and abused) in internet forums (and universitites) around the world every single day. The Chewie Defense is a logical fallacy that consists of confusing your audience with inconsistent, complicated and irrelevant facts to make them agree with what you are saying, even if it doesn't have anything to do with the argument being put forward.

This was first introduced in a South Park episode in which Chef decides to sue Alannis Morisette's music company for using a song he composed 10 years earlier called "Stinky Britches". The copyright infringmenment case is clear and the music company is obviously going to lose. But then Johnnie Cochran takes the stage and delivers his famous Chewbacca defense.

Ladies and gentlemen of the supposed jury, Chef's attorney would certainly want you to believe that his client wrote "Stinky Britches" ten years ago. And they make a good case. Hell, I almost felt pity myself!
But ladies and gentlemen of this supposed jury, I have one final thing I want you to consider: Ladies and gentlemen this [pointing to a picture of Chewbacca] is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk, but Chewbacca lives on the planet Endor. Now, think about that. That does not make sense! Why would a Wookiee—an eight foot tall Wookiee—want to live on Endor with a bunch of two foot tall Ewoks? That does not make sense!
But more important, you have to ask yourself, what does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense!
Look at me, I'm a lawyer defending a major record company, and I'm talkin' about Chewbacca. Does that make sense? Ladies and gentlemen, I am not making any sense. None of this makes sense!
And so you have to remember, when you're in that jury room deliberating and conjugating the Emancipation Proclamation... does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense.
If Chewbacca lives on Endor, you must acquit! The defense rests.

Needless to say, this argument sways the jury and Chef is found guilty of harrasing the music industry, but everything is solved when Cochran takes pity on Chef and uses the Chewie Defense to get him off.

The internet has given rise to a new host of logical fallacies. There is the Argumentum ad Google: something must be right/good/popoular because it produces a lot of search results in Google.

Sue them out of business

This is an interesting bit in the BBC technology section, which tells us that the lawsuits against the largest spammer in the world are actually working. Many companies, including Microsoft, have sued Scott Richter, the Spam King, and he is under so much pressure that he has had to declare bankruptcy.

This is all good and well, but then why am I still receiving spam?

Lessig visits Edinburgh

Professor Lessig gave a lecture yesterday as part of a panel organised by the AHRB Centre for the Edinburgh Science Festival. Yours Truly had the pleasure of participating in the panel, well, actually I just sat there and gazed at the brilliant, entertaining and slick presentation. Lessig has created his own style of using powerpoint slides, it is quite an amazing thing.

The event served to launch the Creative Commons Scotland project. Comments are welcome.

April's Fools: The Aftermath

Another April's Fools has come and gone. What is the verdict? Some good jokes out there, some sophisticated ones, some simply surreal. The most widely circulated is Google Gulp, where the search engine goes into the soft drink market. Then we have a useful item that tells us that technology companies are performing 18% more April's Fools gags than last year. In other news, Cory issues a DMCA takedown notice against the makers of the BoringBoring blog for trade mark infringement. Then, the Bush twins are being sent to Iraq (about time too).

My favourite? The one from EFF's Effector, where we are informed that Acacia has sued the makers of World of Warcraft for infringement of their Troll patent. The claim was strongly rebutted by Leet Hax0r, Blizzard Legal Overlord.

The unstoppable rise of open access journals

The Directory of Open Access Journals (DOAJ) now has more than 1500 peer-reviewed open access journals. This is an impressive number, which is a great witness as to the vibrancy and power of the open access ideals. The main success of OA is that it empowers authors, who will usually get ot keep their copyright. It encourages the reuse of articles, and does away with the ludicrous economics of traditional academic publishing.

If open access keeps going at this pace, traditional publishers may start to find that they cannot continue pricing journals in the same way. After all, we academics do all the work for them!