Free Software, again

It seems like Free Software advocates are actively criticising Creative Commons after Stallman has decreed that CC does not meet with the FS seal of approval. The criticisms seem to be centered on three main points: CC is not centered on ethical principles; some of the licences are not entirely free (in the Free Software sense), and the uncertainties caused by a wide range of licences covering different freedoms. This article by Benjamin Mako Hill follows those same lines. Creative Commons is attacked because it does not offer the certainty of Free Software and is not based on the strict ethical principles that FS is based upon.

I think that the problem here is that Free Software advocates should realise that there is a very basic difference between software code and creative works. There cannot be any doubt any more that open source development and the Free Software movement have produced some amazing results, and that many of those results are awe-inspiring and should be applauded. The availability of millions of lines of code within the software community allows many developers around the world to tinker and modify software to produce a different result. But software code writing is in itself a very communal experience, where the sharing of code is a good in itself because it can be used by other developers to produce new software in a much easier way. This does not take place in creative works. If I write a poem, another poet does not need to look at my poem and copy lines from it to write his own work. If I take a picture, another photographer does not need to look at my picture in order to take his own picture. Yes, there are remix elements in culture that enhance and enrich existing works, but this is only part of the protection awarded by Creative Commons.

In my opinion, Creative Commons serves to fill a legal gap. Everybody connected to the internet can be a publisher. The staggering growth of blogs, moblogs, personal websites, wikis and open access journals have created a legal void, people need to find an easy way to publish those works. Some people are happy to just slap a © symbol and it solves their copyright issues, but it is nice to have a set of ready-made licences that can be used to share the work under certain conditions.

There is also a basic difference in the rights required. Free Software is very useful in the reuse of software code. But the reuse of creative works is less important. What is vital is to have access to the work, and the licences reflect this difference.

Another sticking point with FS defenders is the existence of licences that do not provide freedoms to the entire world, such as the much maligned Developing Nations licence. I do not understand those criticisms. What is wrong with providing a licence that will hopefully help more works being used in developing countries? Some developers may want to exploit their work in developed countries, but they may not have a market in developing nations. A licence that recognsies such a situation and provides more flexibilities should be applauded, not criticised.

Where are the suits?

I have been waiting for a full-scale patent war over open source to take place in the near future. Yet, the war has not broken, other than the issuing of cease-and-desist letters to some open source projects, the war has failed to surface.

I have been reading this very good article by Heather Meeker, who I criticised before for another article on software patents. She makes an interesting point as to why there has not been an open source patent suit yet. While I agree with many of her points, I am not so sure that open source is truly free from patent infringement suits. It is true that litigation is expensive, but with so many ludicrous low-quality software patents out there, it is just a matter of time until some company decides to test the waters and enforce a patent in court against an OSS project.

Free as in Free Beer, and as in Free Speech

This is the story of Vores Øl (Our Beer), the world's first open source beer. The beer is distributed using an Attribution-Share Alike Creative Commons licence. The recipe produces a 6% energetic beer (it uses Guarana), and according to the makers, it is very tasty and they have drank all of it. The people at Creative Commons have decided to try brewing their own version, but with some remixing taking place as the beer was not coming out as planned (they have removed the Guarana beans, is nothing sacred any more?).

Any chance of getting some OSS beer sent to Edinburgh? All this talk of beer has made me thirsty.

Network Law

This is an image taken from a discussion about emergent networks, terrorism and open source (it does make sense after you've read it). However, I found it interesting because it follows some research that I have been conducting regarding the application of complex network topology to the law. This graphic displays an emerging online community. Each dot is a node, in the community context it is an individual. There are super-nodes, or hubs; which are the nodes that have the larger number of connections and hold the community together. This core of nodes is joined by less connected active nodes, and then an ever-decreasing number of connected nodes until we reach the lurker, the individual dot that does not have active links.

What does it have to do with the law? This model describes all sorts of communities, from online fora to P2P networks, passing through child pornography circles and online gambling. One of the results of complex networks is that they tend to be very difficult to attack, which has all sorts of consequences to law enforcement online. If you wanted to bring down a child pornography network, you could spend a lot of time picking individual nodes without bringing down the entire network. However, if you knew who the hubs were, then the network could be attacked in an easier manner. Pick out the hubs, and the network may follow.

I think that this explains the tactics against P2P networks. There seems to be a concerted effort from the copyright industry to eonforce rights against individual users. It is my theory that they may want to provoke a collapse of P2P networks by picking out the hubs.

Halliburton loses software patent case

[First seen here] This is a new case from the High Court of England and Wales (Patent Court). The case is Halliburton Energy Services, Inc. v Smith International. The litigation involved two different types of technology, a cone drill to dig for gas and oil, and a software simulation program used to design the bits.

Halliburton sued Smith International because it claimed that it had patents in both the drill and the software to design it (patent EP1117894), and that Smith had been using similar software (called IDEAS) to produce similar results. Smith International questioned the validity of the patents.

The patent has a long description of drills and drill bits, which I did not read. The interesting part is the algorithm description of the software. It seems way too detailed, nothing like some of the general software patents that have plagued the industry. If I have ever seen a software patent that encompasses and fulfils the definition of "technical effect", this is it. I cannot see any situation in which this could be claimed to be a broad and damaging patent, and unless one is into creating software for simulating drill bits, there is no reason to worry. Judge Pomfrey seemed to agree, as there appears to be no question about the obviousness of the patent. It is not obvious.

The problem for Haliburton was that it was considered that the patent application had inadequate disclosure. For those unfamiliar with patent law, one of the (alleged) points of having a patent system is that the applicant will disclose enough information so that the patent can be worked once it expires. Pomfrey mentions the fact that in very technical subjects, the threshold of disclosure is much higher. Therefore, the stated disclosure in this case was not sufficient.

This is quite an interesting result. A valid computer implemented invention struck down for disclosure. Sweet irony?

French Phishing

I have just received my first phishing email in French. Here it is:

Monsieur/Madame le possesseur de carte de crédit MasterCard,

Nous sommes désolés de vous informer que nous avons dû bloquer temporairement l'accès à votre carte de crédit pour avoir été avisés qu'il avait été compromis par des personnes inconnues. Nous avons remarqué certaines activités concernant votre carte de crédit qui indiquaient le fait que des personnes inconnues pourraient avoir accès ou contrôler votre compte.

Pour réaccéder à votre carte de crédit, nous devons vérifier votre identité. Veuillez, s'il vous plaît, introduire les données personnelles dans le formulaire ci-dessous afin de pouvoir réaccéder à votre carte de crédit.

Nom :
Prénom :
Numéro de carte de credit :
Épingle (pin):
Date d'expiration :
Code de Sécurité (cvv2) :

Veuillez prendre connaissance du fait que, jusqu'à ce qu'on ne vérifie votre identité, l'accès à votre carte de crédit sera bloqué et nous ne serons plus sûrs que les transactions effectuées découlent en sécurité ou qu'elles soient faites par des personnes autorisées ou pas. Nous vous remercions pour l'attention accordée concernant ce problème.Nous vous prions de comprendre que c'est une mesure de sécurité prise pour protéger vous et votre carte de crédit.

Nous nous excusons pour les possibles ennuis.
MasterCard, Département de Sécurité

What a work of art.

The War on Piracy

From the same people who brought us the War on Terror, and who has successfully continued to wage the War on Drugs, here comes the War on Piracy.

The Commerce Secretary of the United States, Carlos Gutierrez, is appointing the new anti-piracy tsar in the United States. He commented that: "Intellectual-property theft is a major problem around the world. We believe that it is costing U.S. businesses about $250 billion in lost sales". Two inaccuracies in one sentence. Theft is the first one (don't even get me started on that) and then the assumption that a pirated copy of something is immediately to be considered a lost sale.

Still, there is no doubt that actual commercial piracy is a problem, and that it needs to be tackled, but I doubt that this is the way to do it. A simple solution? Raise living standards, so that people may actually be able to afford your products. Just a suggestion from the utopian brigade.

Open Source water

A light story for Sunday. I met some of the people involved during the OSS 2005 Conference, led by Roland Alton-Scheidl. They are also involved with Creative Commons Austria, and have decided to release open source water.

The water comes from a source in Dornbirn, Austria, that has been exploited since 1616 for non-commercial purposes. The water can be drawn if it is not goign to be sold. The clever people in CC-Austria have designed the bottles and protected them with a CC licence, and then they are placing water from the source, and giving it away at events. Because the water comes from a non-commercial source, it is truly open source.

I am afraid that I didn't try the water, the bottles that they had was for display purposes only.

RSS implementation by Microsoft

This is an excellent article in PC Magazine (how can that co-exist with Dvorak's now infamous article?). Microsoft is planning to implement RSS support into their future version of Internet Explorer and Windows (Windows Vista, formerly known as Longhorn). The point of the article is that this could very well kill the many RSS clients and applications used at the moment, just like Internet Explorer annihilated Netscape.

At a time when Microsoft has been accused of anti-competitive practices, it seems that the balance is going to be difficult to be kept. The inclusion of RSS into Windows will probably mean that RSS will become mainstream and that the blogging revolution will continue. Aggregation will be the next step in web design, with Explorer and Outlook playing the key role to make it available everywhere. But I still feel uneasy about the fact that this will spell doom for the early RSS developers, those who made sure that aggregation works here and now. Microsoft just bets on the winner technology and takes it over.

Legal downloads triple in 2005

The International Federation of Phonographic Industries (IFPI) has released data announcing that music downloads from licensed providers (that sounds better than legal downloads, doesn't it?) has trippled in 2005. According to the site:

Single track downloads in the US, the UK, Germany and France have risen to 180 million in the first half of 2005 compared to 157 million for the whole of 2004. This is more than three times the 57 million downloads of the first half of 2004.

This is good news for the industry as a whole, and serves to ensure that the music industry will not disappear. However, I find it telling that the IFPI feels the need to add to their press release some of their usual rants against "illegal" music downloads. When will they learn that the market has moved on?

Ranking universities by web presence

Many of us are familiar with university rankings. There is a new index that ranks universities by their web presence. This index is achieved by a combination of factors. The first is the size, the actual amount of files in each university. Then there is the impact, which is the amount of incoming links. Then they measure rich files, the amount of downloadable files (such as handouts, presentations and others).

The results are extremely interesting, and perhaps not very surprising. The top university is MIT. The first non-American university is Cambridge, ranked at 20, beating Oxford, ranked 27. The University of Edinburgh is the 4th European university, ranked 48 overall. The top Asian university is the University of Tokyo, at 50. The top Latin American one is UNAM (Universidad Autónoma de México) ranked 108 overall. My old alma mater, Universidad de Costa Rica, is ranked 912 (well, at least they are ranked).

I think that these ranking tell us quite a lot. For example, universities should be making more efforts to keep good websites, filled with useful and downloadable information. One way of making information accessible online is by hosting open access journals, online databases and online repositories. Information breeds links, and links breed prestige.

Another point is the obvious dominance by universities in developed countries. Latin America and Africa only have 27 universities listed. Is this the digital divide at work?

Worst. Article. Ever.

This is perhaps the worst researched column that I have ever read. It is so wrong that it is difficult to choose from many of the statements. Here are some choice pickings:

First, Creative Commons is similar to a license.

No, it IS a licence. A set of licences to be more precise.

You sign up with the group and post a message saying that your material is protected or covered by Creative Commons. This means that others have certain rights to reuse the material under a variety of provisos, mostly as long as the reuse is not for commercial purposes. Why not commercial purposes?

I am guessing that he did not research at all, and did not discover that there is actually a licence that allows commercial uses.

In fact, the suggestion is dangerous, because if someone were sued by the Creative Commons folks over normal fair use and Creative Commons won the suit, then we'd all pay the price, as fair use would be eroded further.

Creative Commons is not a party to the licence.

There's another thing that bugs me about Creative Commons. When you see its licenses the wording will say something like "Creative Commons License: Public domain."

This is not a licence, the CC-PD is a public domain dedication.

That's what's bothersome. Creative Commons trying to insert itself as another layer into a system that already protects content developers like me to an extreme. I mean my grandkids will own all my writing exclusively until 75 years after I'm dead, unless I sell all the rights to someone else. What more do I want from copyright?

This is more nonsense that confuses Creative Commons. It fails to understand that CC is just a licensing scheme, and that it is just another way of using copyright. It does not attempt to force Mr. Dvorak to give away his copyright, or choose the licence.

There is now a discussion in Slashdot on the subject. There is also a discussion in PCMag's forum, where Mr. Dvorak wrote "I do have the problem of writing more than I read -- a hazard of the job. That said I'll read the Lessig tome. Is it online under a Creative Commons license? :) ". I felt really well by providing links to Free Culture and Code v2.

FS v CC again

More developments in the growing war between Creative Commons and Free Software.

There has been an interesting debate in the iCommons list and other lists. The growing animosity between the FS and CC camps have come to a boil at the Copyright 2005 conference, where Richard Stallman launched a fierce attack against Creative Commons. Then, we have had communication directly from Stallman to the iCommons list, stating that the rift that I have been charting for a while is now official. Am I a prophet of doom? Am I the Nostradamus of our time? Not really, the signs were already there (although my last name rhymes with Nostradamus).

I must say that I find the growing "FS v CC" discourse futile. Both movements are different, have different goals and are directed towards different audiences. In my opinion, one of the main strengths of CC is that it is a strong attempt to make the mainstream aware of the debate regarding freedoms, openness and balance in IP. To me it is useless to pontificate and preach to a converted techno-elite about the evils of proprietary models, while the large number of users doesn't care and cannot be bothered to become informed about the debate.

I believe that OSS and CC are really good in realizing that the battle must be won in the middle. The geeks are convinced of the problems of an imbalanced IP system, but can we convince my mother to use non-proprietary models?

The way to do it is through education and by making people aware of the different licences and about the basic concepts present in copyright. This cannot be done by adopting the stance of the fanatic. Zeal will convince a few, but if we care about free culture and open standards, we must be prepared to make some compromises to the mainstream. Otherwise, we are just another small group of inward-looking technophiles, irrelevant in the grand scheme of things.

The Software Patent debate goes on

It has been more than a week since the Commission text of the Directive on Computer Implemented Inventions was defeated 648 to 14 votes, proving that the Commission's dodgy strategies have failed. This is already old news in the Blogoshpere, but as I missed the entire round of posts the first time around, but I thought that I would have a second look at what has happened now that the dust is settling and as there has been some time to reflect on what is taking place.

The scrapping of the Commission text is good news, as it was the closest proposal to the American system that we have had so far. It also proves that their tactics to try to circumvent the democratic institutions of the European Union by passing an unpopular directive by stealth have seriously backfired on them. What is bad news is that we now find that the patenting system in Europe is going to have to follow the flawed and often contradictory practices of the last few years. We will have to live with the many broad and obvious patents being awarded in Europe, and this is not a good thing. We do need a directive, but we will not get one in the near future.

I have spoken with a couple of people who are in favour of software patents, and they seem to be happy with the result. This bothers me.

OSS goes corporate

I am back from my conference spree in Italy, and I have brought back a good number of ideas. The OSS 2005 was particularly interesting, and I was struck by the presence of many industry representatives, and particularly by the presence of people from the Business Software Alliance, Microsoft and the European Patent Office. Does this mean that OSS has gone mainstream? It seems to me that the worries by some FS activists may be coming to fruition, and OSS is in danger of being hijacked by corporate and commercial interests. The implication that Microsoft and the BSA might join the open source bandwagon could spell trouble.

Another interesting development from the conference was the presence of some public administration types who talked about the public push towards adopting open source. This worried me because in some cases, there is a considerable amount of public expenditure into supporting FLOSS models. I don't think that it is appropriate for government to put their weight behind a specific model of software development.

As for the conference itself, I thoroughly enjoyed it. Although this was not a legal conference, there were a number of papers that were extremely interesting. I was surprised by the width and depth of research in Open Source Software, particularly with regards to the success of the business model and the organisational and strategic aspects of OSS projects.

The quality of the actual papers was very high, although the actual presentations often left considerable room for improvement. People must understand that PowerPoint is a tool, and that droning with a boring voice will send people to sleep.

Here is a list of some papers that I liked:

• Measuring Success of Open Source Projects Using Web Search Engines, D. Weiss.
• Fun and Software Development, B. Luthiger.
• Evolution of volunteer participation in libre software projects: evidence from Debian, G. Robles et al.
  
• Open Source software, intrinsic motivations and profit-oriented firms. Do not firms practise what they preach? A. Bonaccorsi and C. Rossi.

SCRIPT-ed June issue

I have finally been able to get the June issue of SCRIPT-ed bug free. This issue was delayed because the website has been moved to a different server. The contents of this issue are:

Editorial
- HUGO Ethics Committee: Ten Years On, Ruth Chadwick.

Special feature
- Workshop: Intellectual Property Rights Issues of Digital Publishing - Presence and Perspectives, Introduction by Burkhard Schafer.

Peer-reviewed articles
- The Protection of Traditional Knowledge Related to Genetic Resources, Marko Berglund.
- The Protection of Expressions of Folklore Through the Bill of Rights in South Africa, ES Nwauche.

Analysis
- Legal Challenges to Open Source Licences, Andrés Guadamuz González.
- Should There Be an Obligation of Disclosure of Origin of Genetic Resources in Patent Applications? – Learning Lessons from Developing Countries, Graeme Laurie.

Book Reviews
- The Digital Sublime: Myth, Power, and Cyberspace by Vincent Mosco, Reviewed by Jun Gu.
- Media, Technology and Copyright: Integrating Law and Economics by Michael A. Einhorn, Reviewed by Christopher T. Marsden.

OSS 2005 Conference

I am at the OSS 2005 Conference in Genova, Italy. Internet connection is a bit sketchy, so I will not be able to blog this fully.

I don't see any other lawyers present, so I am getting a bit nervous. I am going to be presenting this paper, which is very small comment on some of the latest legal developments. Unfortunately, it came out after last week's vote on the CII Directive, so it is already outdated. The conference is extremely interesting so far. It is mostly a developer conference, which is really interesting because will be getting a better idea of the problems faced by the people in the trenches.

Italy

I am in Italy for two weeks for the ICABR and OSS 2005 conferences.

G8 protests in Edinburgh

What an amazing day yesterday. This is actually related to Technology Law, as some of the solutions to the problems of poverty can be found with technology and with policy solutions, particularly with regards to IP protection of technology and the access to knowledge in developing countries. This is my favourte picture from yesterday:

The police were out in force. These horses look bored, but cool in their sunglasses. Oops, sorry, they are not sunglasses, they are anti-riot goggles. Easy to confuse.

Libre Commons

Interesting new set of licences from some of the people at Loca Records. I like seeing new licences and ways of thinking, so congratulations to the drafters.

I do have some problems with the licences though. The licence is described as "non-legal licenses that will operate in the shared space that can non-bureaucratically and non-instrumentally be formed resisting law, the intellectual property regime and state violence." Fine, but if they are not really licences, then what are they? In the Creative Friends mailing list some of the proponents have called it an anti-licence, someone else called it apseudo-licence. What does it mean? The licences are supposed to be a political and social movement that does not rely on the "law or legal fictions". Fair enough, but why call it a licence? It is not a licence, it is a manifesto, a declaration or a pamphlet.

I am also confused by the objectives and the target audience. It seems to me that the target audience is a certain type of well-educated political activist that can understand the intricacies of the language, and therefore the target is not the mainstream. Such exercises strike me as slightly elitist, but we will see how it pans out.

Open Source in league with al-Qaeda

A man in Utah knows who is to blame for all the evils of this world. It's not Osama Bin Laden, it's not North Korea, it's not even George W. Bush. The blame lies at the feet of the open source movement. Yes, those evil people at Groklaw, Slashdot and Sourceforge are guilty for everything, from WMDs to the fall of the dollar and the decline of American civilization. The U.S. is losing the War on Terror^TM because open source has placed large chunks of American technology in the hands of terrorists. You can read the entire thing here. Some choice claims:

40. Among other things, the OSS advocates the dismantling of all intellectual property laws that restrict the trade in free software, including the overthrow of the US patent system, intellectual property laws, and the overthrow of the European Union attempts to create a patent system to protect the intellectual property rights of individuals, and computer technology companies.

43. As a result of these activities, a large portion of US technology has been unwittingly placed into the hands of various groups around the world, including Al-Queda, and other groups who sponsor international terrorism.

44. As a result of these activities, a large portion of US technology has been unwittingly placed into the hands of various groups around the world, including radical governments and groups who sponsor and have used the technology in support of the creation of weapons of mass murder and mass destruction designed to murder American Citizens and their families.

46. The beheading and murder of United States Citizens in Iraq, Saudi Arabia, and other countries have been videotaped, converted to MPEG and other images for viewing on the public Internet through the use of OSS and Linux software and computer technology developed and purloined by Linux and OSS members and illegally exported from the United States.

I am not sure what they smoke over there in Utah (according to Merkey, it's not peyote), but this guy must be on something.

Parliament report on Open Source

(via David M. Berry). This is a report on OSS by the Parliamentary Office of Science and Technology, which is charged with offering a balanced view on key policy issues. The report is well-balanced and measured, and it comes out very strongly in favour of open source, and it even mentions the software patent debate, while calling them software patents and not computer implemented inventions, which is a good step.

The report concludes with the following remarks:

• Acceptance of open source software is increasing in both the public and private sector. The Office of Government Commerce report states that it is a viable and credible alternative to proprietary software for infrastructure and for most desktop users.
• The government'’s OSS policy promotes a ‘level playing field’ in which OSS solutions should be considered alongside proprietary ones in IT procurements.
• It is increasingly acknowledged that there is a role for both open source and proprietary approaches and that a combination of both approaches stimulates creativity and innovation.

This is a very welcome development, and it should help to bring forward the availability and viability of OSS as a valuable businness model.