The DRM debate

Lessig has made some comments about DRM in his blog, particularly about Sun's project to create some open DRM formats with their Open Media Commons Project. Seems like Karl-Friedrich Lenz was right all along about this specific point. I tend to agree that it should be possible to build some DRM systems that protect copyright exceptions in some way or another. I have also argued that there is considerable room for a wide definition of DRM that includes all sorts of digital rights management.

Then there is this interesting article about the folly of some technical protection strategies from the industry. The fact is that restrictive TPMs have never stopped widespread piracy, they only annoy and affect fair dealing provisions.

CFP reminder

Just a reminder that the deadline for the Call for Papers for the VI Computer Law World Conference to take place in Edinburgh this September is this Friday! You only have to send a small abstract.

The zombie clause

(via Oren Bracha) Nobody reads what they sign, this seems to be demonstrably true. But this is not only true of click-wrap agreements, it also happens with printed materials. A video store in Austin TX presented their customers with a receipt that includes the clause "I hereby surrender my soul for all eternity to the clerks at the I LUV VIDEO and will become part of their legion of Zombies".



Grr... Argh!

When batteries run out...

(Thanks to Burkhard for the link)

Stealing Wifi

Can people "steal" wifi? A man in Illinois has been fined $250 USD and given a one year suspended sentence for sitting in his car at 2 AM and accessing an open Wifi network belonging to a charity.

This poses several interesting legal questions . Many legal systems now have criminal offences to deal with hacking, generally construed as some form of "unauthorised access" to a computer network (see the UK's Computer Misuse Act). Is accessing an open network the same as unauthorised access? In crowded residential areas you can view several networks, often some of them are open. What if I access someone's by mistake? I have heard stories of people who did this. Can there be an offence then?

March 2006 issue of SCRIPT-ed live

The new issue of SCRIPT-ed is now online. In this issue:

Editorials:
- Adebambo Adewopo, "Protection and Administration of Folklore in Nigeria".
- Johanna Gibson, "The Gowers Review of Intellectual Property – A Valuable Affair.

Special Feature:
- Roger Brownsword, "Neither East Nor West, Is Mid-West Best?"

Peer-reviewed articles:
- Miranda Mowbray, "Implementing Pseudonymity".
- Molly Ann Torsen, "Beyond Oil on Canvas: New Media and Presentation Formats Challenge International Copyright Law’s Ability to Protect the Interests of the Contemporary Artist".

Analysis :
- Mark J Taylor, "Data Protection: Too Personal to protect?"

Book Reviews:
- Soft Law in Governance and Regulation: An Interdisciplinary Analysis, Ulrika Mörth (ed). Reviewed by Catherine Lyall.
- Modern Intellectual Property Law, Catherine Colston and Kirsty Middleton. Reviewed by Joseph Savirimuthu.

The politics of access to knowledge

Different reports are coming from the meeting earlier this week on the polictics of IPRs, organised by the Trans Atlantic Consumer Dialogue (TACD). You can browse several reports from Patenting Lives, Axel H Horns and IP Watch. The meeting had quite an amazing number of experts brought together, and it seems like the discussion was lively and engaging.

Measuring CC popularity

Christian Ahlert from Open Business has posted a very useful tool online. This is a web applet that checks the links to a specific licence from Yahoo! and displays the results. Creative Commons Scotland only has 3,074 links to the licences, while England and Wales version 2.0 licence has 69,320. The generic licence is still the most popular. Version 2.0 licences get 7,332,000 links, while version 2.5 get 3,771,100 links.

As far as I can tell, the most popular jurisdiction is Germany, with 375,552. It also seems to me that the most popular licences are still the most restrictive ones. BY-NC-SA and BY-NC-ND.

Downloaders buy more music

A study commissioned by the Canadian Recording Industry Association has been made public, and Michael Geist has found some interesting facts on it. Apparently, those who download the most are those who buy the most music. We already knew this, but it is nice to see more hard evidence for the fact. The study has a breakdown of the source of music on people's hard drives (this does not include other music people may have). The sources are:

• Ripped from own CDs (36.4%)
• P2P downloads (32.6%)
• "Legal" downloads (20.1%)
• Shared from friends (8.8%)
• Downloads from artist's sites(5.6%)
• Other sources (2.9%)
  

Quite a damning report in my opinion. More evidence to show that P2P will not bring the music industry to its knees.

The Economist on open source

(thanks to Nicolas Jondet for the link) This is a good article in The Economist about open source business models. The article goes through everything open, from source code to biotechnology, interviewing key experts. The article states that:

"Perhaps that is why open source is taking up a permanent place as a facet of modern business. As open source begins to look more corporate, corporations themselves are looking to adopt and adapt more open-source practices."

Good read.

Vanity Wikipedia

I was looking at the Wikipedia entry for the Open Rights Group, and I was surprised at how many people have entries on Wikipedia. I'm not implying that the people listed do not deserve entries, but reading so many interesting bios got me thinking as to how many people are entering their own personal details into the free encyclopedia. Is there any qualification of who should be listed? What qualifies a person for Wikipedia fame? Do you just post your own small blurb with links? Is it ethical to list yourself on Wikipedia? Can you just get a friend to create your entry?

A licence or a contract?

I have been involved in an argument on a mailing list with regards to the legal nature of copyleft licences such as the GPL. This is a bit of a pet peeve of mine (and talking to other lawyers, it seems like I'm not alone in this). This is the fact that in Free Software circles there is a mantra stating that "the GPL is a license, not a contract". An example of this can be found here. I must admit that this artificial distinction drives me up the wall. As far as I can see, Eben Moglen is the one person who came up with this distinction. He explains it like this:

"The word 'license' has, and has had for hundreds of years, a specific technical meaning in the law of property. A license is a unilateral permission to use someone else's property. The traditional example given in the first-year law school Property course is an invitation to come to dinner at my house. If, when you cross my threshold, I sue you for trespass, you plead my 'license,' that is, my unilateral permission to enter on and use my property.
A contract, on the other hand, is an exchange of obligations, either of promises for promises or of promises of future performance for present performance or payment. The idea that 'licenses' to use patents or copyrights must be contracts is an artifact of twentieth-century practice, in which licensors offered an exchange of promises with users: 'We will give you a copy of our copyrighted work,' in essence, 'if you pay us and promise to enter into certain obligations concerning the work.' With respect to software, those obligations by users include promises not to decompile or reverse-engineer the software, and not to transfer the software. "

The problem with this interpretation is that despite protestations to the contrary about the practice being an "artifact of twentieth-century practice", a licence is still a contract if it fulfils contract formation requirements. The above quote rests on a specific view of contract formation. Contracts require offer, acceptance and in some places consideration (reciprocity). The error in Moglen's explanation is that he is assuming that a contract can only be formed with consideration, which is not the case in a large number of countries of the world that have civil or mixed legal systems (Scotland for example). Contracts in those countries do not require a promise of payment, as specified by Moglen, which then allows unilateral promises and licences. To assume that American contract law applies everywhere seems a bit odd.

Why would anyone want to make a distinction between a contract and a licence? There are some useful procedural reasons to identify a copyright licence in some jurisdictions. For example, there may be different legal effects if a contract is a licence, or sale of goods, or sale of services. But those three are still contracts!

As far as I can tell, Moglen declares that he has a problem with the global variability of contract law. He says in an interview with Kathy Bowrey (thanks to David Berry for the link): "This is the very reason why I have resisted contractualisation completely because contract law is totally non uniform around the world." With all due respect to Prof. Moglen, it is not up to him to decide if contract law applies to a licence, it is up to the courts. I find a part of the interview very telling. Here Moglen says:

"So all that I do is bring an infringement action. It is the defendant'’s responsibility to prove license and the only credible license for the defendant to plead is my license, because code is not otherwise available except under that license."

That is a dangerous position! Firstly, how do you prove that the user is under a licence other than by contractual law principles? Secondly, this argument would seem to suggest that any user of copyright works can be taken to court, and only then they can prove that they actually had a licence to use the work. Imagine the same paragraph above being said by Bill Gates and not by Eben Moglen, and you will get why this is such a dangerous position! As a colleague pointed out to me, according to this view, all use is a priori infringement until proven otherwise.

Update on Dutch CC case

Professor Bernt Hugenholtz has distributed a translation of the Dutch CC case, very useful for those of us who have never been to the Netherlands (unless you count transfers at Schiphol Airport). The relevant text reads:

“All four photos that were taken from www.flickr.com were made by Curry and posted by him on that website. In principle, Curry owns the copyright in the four photos, and the photos, by posting them on that website, are subject to the [Creative Commons] License. Therefore Audax should observe the conditions that control the use by third parties of the photos as stated in the License. The Court understands that Audax was misled by the notice ‘This photo is public’ (and therefore did not take note of the conditions of the License). However, it may be expected from a professional party like Audax that it conduct a thorough and precise examination before publishing in Weekend photos originating from the internet. Had it conducted such an investigation, Audax would have clicked on the symbol accompyinying the notice ‘some rights reserved’ and encountered the (short version of) the License. In case of doubt as to the applicability and the contents of the License, it should have requested authorization for publication from the copyright holder of the photos (Curry). Audax has failed to perform such a detailed investigation, and has assumed too easily thet publication of the photos was allowed. Audax has not observed the conditions stated in the License […]. The claim […] will therefore be allowed; defendants will be enjoined from publishing all photos that [Curry] has published on www.flickr.com, unless this occurs in accordance with the conditions of the License.”

The relevant part seems to be that the court held the browse-wrap element of the licence, as well as the "human readable code", the Commons deed that explains the terms and conditions of the licence is easy-to-read format.

Online gold farming

(Via Terra Nova). There has been a lot of talk in online gaming circles about the gold farming phenomenon. Gold farming is the use of "virtual sweatshops" in which gamers from developing countries spend hours earning in-game currency, rare items or virtual property in order to sell it in exchange of real life currency. At first it was believed that gold farming was a myth, but it has become a fact, with sites like IGC4X selling gold for various games. Ebay is also full of people selling in-game goods.

The article in Terranova has an interesting link about the people who do gold farming. It is interesting to read that some of the people employed in virtual sweatshops do not find their occupation that bad. One could argue that they are being paid to play, but that is besides the point.

What about the law? Many games forbid gold farming in their user agreements, and some may even claim ownership over the intellectual property created in game. One could argue that this is just another example of free market economy. If a gamer wants something bad enough, he/she will pay real money for it. Who loses in the transaction? Some other games have recognized the value and sell upgrades within the game, or even high-level characters, such as the case of Ultima Online.

EDonkey server shut down

Last weeks there were reports that police in Belgium had shut down an EDonkey server called Razorback. This server did not hold actual infringing material, it held contact data of people using the EDonkey network. As the P2P weblog suggests, this has no bearing whatsoever on the service, as new protocols do not rely on indexing servers, but on dynamic indexes downloaded every time the user connects.

The shutting down of one server does nothing to the actual network, which begs the question of why do they bother in the first place.

Creative Commons enforced in court

The first case (as far as I'm aware) enforcing a Creative Commons licence has come out in the Netherlands. The case involves famous podcaster Adam Curry, who had a number of pictures in Flickr under an Attribution-NonCommercial-Share Alike licence. Some of the pictures were taken by Weekend, a Dutch tabloid, and placed in the cover. Curry sued over infringement of the non-commercial and attribution elements of the licence, and apparently has obtained €€1000.

An interesting case that proves that CC licences are enforceable in court.

Changes in media consumption patterns

Two unrelated stories indicate that there may be a large shift in the way in which we consume media, which could have implications for policy (if only policy was informed by empirical evidence). The first is that 2005 saw a drop in movie attendance, despite being a year that saw plenty of blockbusters released, such as Revenge of the Sith, The Island, King Kong and War of the Worlds. It is difficult to ascertain the reasons behind the drop - one could argue that it is only caused by the fact that the movies released last year were not that good. One could also argue that people are happy waiting for movies to be released on DVD and watch them in their increasingly impressive home theatres.

Another interesting news item is that according to the BBC, people spend more time surfing the internet than watching TV. This shift is understandable due to increased broadband and better and more varied content online. TV ratings now should start taking into account that many people will prefer to watch entire series on DVD or to download them. Series such as Lost and Galactica are now offered for download in iTunes, and one can even watch the next episode of The IT Crowd online right after the show.

Is traditional media dead?

The wild and wacky world of chain letters

A new chain email has been making the rounds recently, it is a message that claims that MSN is about to charge for their email service, and links to a story on the BBC website. The problem is that the story is five years old, and dates from an outdated idea by some MSN suit. Many people have been forwarding the email, the problem is that it is not true.

I love chain letters, but unfortunately, I don't get it anymore. From the early days of the Internet I used to get the best emails. There were the messages about sick children that had managed to get an organisation to pay money if you clicked on certain link or sent an email, like the famous variation of the Jessica Mydek email. And who could forget that great guy Bill Gates, who promised to pay people $1,000 dollars for forwarding a letter?

You may not be surprised to learn that I stopped receiving chain mails after I started debunking them to my friends. Nobody likes a smartarse.

Report clears GPL of securities threat

The Software Freedom Law Centre (SFLC) has produced its first white paper, which deals with the potential threat to developers who distributes software under the GPL. The alleged threat comes from a securities legislation called the Sarbanes-Oxley Act 2002, which establishes criminal sanctions to corporate board members who fail to fulfill some of their responsibilities with regards to auditing, quality control and accounting. What does the GPL have to do with corporate securities legislation? The allegation from GPL critics is that using the GPL creates a threat of widespread license violation (it's free after all), and this should be reported to the securities regulator in the United States (the SEC) and to shareholders.

The paper goes into some detail about why they think this is just more FUD against the GPL, but the main argument is that the Sarbanes-Oxley Act only applies to large corporations, and that GPL litigation has been minimal in recent years, so the risk is not there.

The SFLC seems like an interesting team, and I'm sure that we can expect more from them in the future.

Google Drive

Google is set to roll out another service for its users that takes advantage of its seemingly unlimited storage and processing power. GDrive is a service that will allow users to store their files online in Google's servers, where they can access them from anywhere on the Internet. The convenience of this is not to be overstated, you could have backups of all your files, as well as being able to have the same files at work and at home.

As with many other Google services, GDrive is likely to be targeted by privacy advocates, worried about the potential abuse or misuse of the personal information stored.

Napster blames Microsoft

Napster has come out criticising Microsoft Media Player for their inability to catch up with leader iTunes in the music download market. iTunes has 80% market share despite Napster's instant name recognition. Apparently, Napster has been plagued with problems with Microsoft Media's DRM. It is an axiom of digital rights management providers that their services should be easy to use and transparent. Any failure in that, and customers may be turned off by it.

This does not fare well for Microsoft, who are planning to compete with Apple by releasing the Origami, a small PC that can play music files.

DRM down under

(via Boing Boing). A new report from the Australian Standing Committee on Legal and Constitutional Affairs regarding copyright and technical protection measures has come out. It seems like the report is very much in favour of consumers and calls for balance in IP policy with regards to the use of restrictive technologies to protect copyright. It is refreshing that we now see a number of policy papers calling for balance in IP. It is possible that the pendulum has swung as far as it will go in favour of publishers, and it will swing back in favour of users.

Charging to browse

(Via Michael Geist's blog). Sometimes I sort of wish news like these were false. The main Australian copyright collecting agency is requesting Australian schools to pay for browsing the web. They argue that it is analogous to making photocopies, and therefore they should pay their members for the benefit.

Trying to dissect the idiocy of this policy is a wasted point. The mind process that produces such a view of the world is so alien to me that I don't even know where to begin. I am guessing that there are several assumptions here that are so wrong that they should not even warrant discussion:

1. Students only browse Australian sites.
   
2. Authors of Australian sites are members of the collecting agency.
3. Those sites require royalties in order to survive.
4. A click equals a sale.

One day I'm going to start charging people who read my stuff, seems like I'm the only one who writes for pleasure.