Attacking OSS

For those who think that software patents are not a threat to open source, read this interesting article on Patently-O about a patent suit against RedHat. The dispute is generated by US Patent 6,101,502, a patent for an " Object model mapping and runtime engine for employing relational database with object oriented software". The abstract reads:

A mapping between an object model and a relational database is generated to facilitate access to the relational database. The object model can be created from database schema or database schema can be created from the object model. Further, the mapping can be automatically generated. The Database schema, object model and mapping are employed to provide interface objects that are utilized by a runtime engine to facilitate access to the relational database by object oriented software applications.

Who writes this stuff? Anyway, RedHat is one of the big players, so it is a good target for patent trolls, but it is still a bad sign for open source in general.

The White Man's Burden

The iCommons summit was an incredible event, but I wanted to point out something that kept bothering me in a couple of sessions, particularly the panel about the international role of Creative Commons.

I am perfectly aware that the lack of specialised knowledge of intellectual property from representatives of developing countries in international organisations is a big problem, and that it may induce some of those countries to comply easily with the tremendous pressure by developed nations and industry lobbyists. This is masterfully expanded in the great book "Information Feudalism" by Peter Drahos . However, I'm getting a bit tired of going to meetings where NGOs stress time and time again the perceived ignorance and naivité of those poor developing countries in extremely condescending and even patronising tones. I recognise that many of these people are well-meaning and commited to their ideals, and that their work does indeed help to alleviate some of the lack of education in this area. However, some of the rhetoric sounds like us poor brown people cannot figure things out on our own, and that we need the sophisticated and knowledgable white folk to enlighten us and bring us out of our ignorance.

This is not only condescending, it borders on insulting. We are not all naïve and stupid natives. Some of us have figured things out on our own without the intervention of the NGOs. Not only that, the debate is often framed as clearly “Us vs Them”, where all the bad guys come from developed countries, while the good guys are the Nice White People and selected allies from the developing world (hopefully singers, artists, and other members of the digerati cultural elites). This helpfully ignores that we have our own share of home-grown bad guys. I know a lot of very well-informed, intelligent people who think that free trade agreements are the best thing that could ever happen to developing countries. I also have met representatives at WIPO who really think that more IP protection is good, not out of ignorance, but out of pragmatism and inner conviction.

I’m not biting the hand that assists, the support is greatly apreciated. But please don’t provide assistance and then gloat at a meeting full of people from developing countries and insult us to our face by implying that we are nothing without the help of the Nice White Person.

If the NGOs really want to help, they should try listening and communicating a bit more, but not only with the cool elites from developing countries. We are rather more diverse than that.

Summit winding down

We are almost done, the last session is upon us. There are three declarations that will be distributed (and hopefully signed on). I will read them in detail and blog about them later on. All I have to say is that this has been ana amazing meeting, full of energy and even some interesting points made in some sessions. The final picture will show just how a diverse group this is.

Day 3 keynote session

International role of Creative Commons with Cory Doctorow, Jimmy Wales, James Love, Glen Otis Brown and Nhlanhla Mabaso.

Cory Doctorow: WIPO development agenda, the experience of EFF at WIPO. There should be a stronger institutional representation of Creative Commons at WIPO level, as at the moment it has been silent. Cory mentioned the many different activism options at WIPO, little things can make a big difference: note taking, blogging, providing information for national delegations. Praise for informed and active national delegations like Brazil and India.

Jimmy Wales: Wikipedia in developing countries. Wales specified the multi-language approach, only one third of articles are in English, and there are many languages represented. Wales is now one of the voices of "what the internet thinks". He talked about the international aspects of interest for Wikipedia, particularly Chinese articles. Wikipedia is social innovation, not technical.

Nhlanhla Mabaso: excellent points about technology in developing countries, and how mobile phones are the technological innovation of choice in the developing world (I thoroughly agree).
Social hardship can provide new oportunities and new ideas on how to solve the problems faced by developing countries, from Linux server clusters to open technologies. There is some nervousness of authors and creators about licensing with CC, but they can be overcome with education. Technical solutions are taken for granted in developing countries.

Glen Otis Brown (Google): CC and Google are "birds of a feather" to abuse a very commonly used phrase around this ocnference. He described several new projects at Google with CC relevance, and some tools that are even distributed under CC licences. He talked about Ad-sense, is it commercial use? Can it help people make money from CC content?

James Love: CC is just part of a larger movement, the Access to Knowledge movement that encompasses FLOSS, access to medicines, open access, patent reform, etc. He stressed that WE are not a bunch of communists. FTA's and drug companies, trying to get the industry on board is another way of working towards access to medicine.

Reviewed llamas

Blogs reviewed in scholarly journals? I did not think it was possible for anyone to take us seriously, but the latest issue of the excellent Journal of Intellectual Property & Practice (2006 1(7):493-494) has a review by Toby Headdon of three IP blogs: Lessig Blog, Patently-O and yours truly. I have not read the review, but I received a blurb from colleagues, and I must really thank Toby for the kind and encouraging words. Risking infringement, the first paragraph reads:

I have not quite figured out the connection between technology and llamas but it is syntactically pleasing. In spite of almost daily postings by Andrés Guadamuz González (e-commerce lecturer at the University of Edinburgh), this blog site, by its own admission, appears to attract very few comments: ‘I'm ranked 37,346 (in the "Insignificant Microbe" category)’, we are informed. Quite frankly, it doesn't deserve to be. This blog site is laced with wit and is all the more entertaining for it—take, for example, the comment on the intent of pro-software patent lobbyists to propose another attempt to pass the ill-fated directive on computer-implemented inventions: ‘Wonderful thing democracy. If you don't like the result, try and try again.’

Thanks again to Toby for the very flattering review, I promise to use more pictures in the future. I'm trying to think of something witty to say... alas, it's not happening. I blame the Brazilian caipirinhas.

Commons in art, science, and culture

The most impressive panel in my opinion: Niva Elkin-Koren, James Boyle, John Willbanks and Jenny Toomey.

James Boyle is clear-headed and acute as usual, warning of the dangers present in the commons movement. The first danger is that we should not become the "lost leaders", that having hours and hours of low-quality 50 seconds MP3s is NOT what the movement is all about, that would be a disaster, a failure. The movement must be about freeing and generating quality content as an alternative to the people who believe that creativity comes only from the very few. The second danger is the ideological encroachment of the movement in telling people that "our freedom" is the only and bestest freedom, mostly ideologically driven. I gathered certain pragmatic outlook, which I certainly like.

John Willbanks describing the open science movement. It seems from the talk that the Science Commons project has been moving from patents and into databases and publishing (i.e. copyright works). New project called "neurocommons" on data held on databases. Highlight of the presentation: coding bacteria that display the Flying Spaghetti Monster, and a DNA centrifuge ($79.99, ages 10+).

Niva Elkin-Koren: Following her excellent paper "A Skeptical View of a Worthy pursuit", she is providing a much needed opportunity to pause and ponder some of the problems in the licensing scheme. Complexity of licences, interoperability and the generation of content islands that cannot be mixed. The problems are mostly with the practice. Creative works are not simply commodities, words should be shared and exchanged, these are the actual principles behind the philosophy of the movement, but this is not stated in the movement. CC can bring copyright to all of us, it brings copyright to the forefront and available to the masses. CC is the leader, it should make sure that it makes a statement for the open and non-profit arena. CC should act as a social contract rather than a mere licence.

This session alone was worth the ticket (had I paid a ticket to get in, which I didn't).

First day impressions

(picture courtesy of Ariel Vercelli)
I'm still here after the first day, a bit worse for wear from jet-lag and a dodgy stomach, but still going. So many different highlights to the first day! Perhaps I should just paint a picture of what the place feels like.

As I mentioned yesterday, there are people of all races, ages, social backgrounds and hair-styles walking around. From bright pink to experienced gray, there are 300 people in the place literally from all over the world. Lawyers, artists, academics, scientists, hackers, musicians, writers, coders, NGOs, international organisations, lobbyists, industry. Did I mention the lawyers?

Nevertheless, I think that I still miss the nice coziness from last year, this event may have gotten too big. The very important discussions, such as the new version of the licences, have been rushed because of the time pressure. I think that future events may want to leave more time for the policy sessions.

Anyway, there has been a lack of hard content, but the atmosphere is amazing.

I need to get some Guarana drinks.

Policy workshops

Quite a good start to the policy discussions, there is too much to write, so I'll be rather brief.

WIPO discussion: Contentious session indeed! There was a good presentation from Richard Owens, but then some cutting comments from James Boyle, James Love and Cory Doctorow.
The problem is of course the WIPO Broadcast Treaty, which has been talked as an extremely difficult treaty for CC, particularly with regards to webcast issues. Richard Owens has promised to look into this, there are several problems and they know about them, the solution could be to have a treaty that applies only to broadcasts, and not webcasts.

FTAs: Good input from Claudio (Chile) and Oscar (Peru) about the problems generated by Free Trade Agreements, which go beyond existing treaty responsibilities such as the WCT and TRIPs. Exceptions have been eroded considerably to mirror US legislation and economic model.

Chilean proposal for WIPO development agenda: Create a permanent domain for "alternative" IP aspects. WIPO should look at the public domain as well (manage?) Evidence-based policy (where have I heard this before? Oh yes, here). Open licensing is still copyright, so why leave it out of WIPO framework?

Version 3.0
This is what it will have:

• No Endorsement clause.
  
• Right to prepare derivative works/adaptations
• U.S. licence.
  
• A true international Generic licence will have the language from international treaties (Berne, WCT).
  
• DRM debate: The new draft will have a longer anti-technical protection measures clause to comply with Debian "free" requirements. Cory spoke against DRM, it is very difficult issue with the new draft and many leads said that the new clause is just way too long and a rather complicated solution as structured. A better definition of DRM is really needed.
• Moral right of intgrity: This is a contentious issue because the moral right is dealt with in four different ways around the world. There is no sure way of dealing with this, perhaps creating a new element would be an option. James Boyle has suggested that we should just have a generic clause stating that "this licence does not affect your moral rights". Works for me.
  

Summit begins with a bang

Opening Session: Very good opening session. The highlights for me were Joi Ito, who has been speaking on the many different technical things in which we can make sure that Creative Commons works from a business perspective. Gilberto Gil has amazed the audience with a pasionate speech about the importance of CC as a tool to grant the widest possible content to the widest amount of people, and has obtained the loudest ovation of the day.

The international affiliates session: This was actually quite heated workshop. We had presentations from Mia Garlick, Mike Linksvayer, Heather Ford and Christianne Henckel. They tried to explain the changes on the international structure of the movement. iCommons is a new brand for promoting the movement, International Creative Commons deals with new licences, and the Creative Commons brand will remain, but if I understood it correctly, the name will remain for the United States, while all international affiliates will have to use the iCommons brand. This created a bit of problems.

Session on Collecting Societies: The meatiest legal session, as there have been several conflicts already between CC and collecting agencies in Spain and Australia. Could there be some technical solutions? Perhaps some click-wrap opt-in option for users where people in automated colledcting agencies could highlight if something is under a CC licence. Maybe not. There will be a complete drafting report on this subject. Ther have been several meetings between some naitonal CC leads and local collecting societies to keep them informed of the movement, and that we are not a "threat".

Live from Rio

The meeting has started, we are gathered in the impressively posh Marriot Hotel in Ipanema. I measure poshness by how many times I politely get asked what I'm doing (three times before getting to the venue). I guess that it's just because I look like I don't belong, but it could also be the fact that i've decided to go very casual.

Anyway, this seems like a U.N. meeting, or at least what the U.N. would look like if everyone wore t-shirts and carried laptops. Everyone seems to be here, Geist, Lessig, Ito, Dotorow and Wales.

The speeches have started, so I better get going. More later.

Brazil, Brazil

I will be away to Rio de Janeiro to attend the second Creative Commons summit, or more accurately, the iCommons summit, as it is actually an international gathering to discuss the Creative Commons movement, and what a gathering it promises to be! As with last year's gathering in Harvard, I will be reporting directly on the impressive programme, wireless permitting of course.

When moral rights go wrong

I am becoming rather ambivalent about moral rights, which goes against my Civil Law upbringing. I believe that moral right of attribution is a good thing, but that the moral right of integrity can be difficult to apply, and when it is it may prove more trouble than it's worth.

This is an excellent article in the New Yorker on the issue of the eccentric Stephen Joyce, grandson of the famous Irish writer of the same surname. It seems like Stephen has been wielding his moral rights as a weapon since the 1980's, threatening to sue critics that he disagrees with. He has also been using this tool to get invited to Joyce panels, conferences and symposia (without paying fees of course).

Now an academic is fighting Stephen's lock on the estate with the help of Larry Lessig. Carol Loeb Shloss is arguing for fair use in research and scholarship, and in my opinion she has a good case.

This offers the interesting legal opportunity to review just how much power do estates hold. For those interested in this issue, there is an excellent article by Matthew Rimmer in a previous issue of SCRIPT-ed on this very same topic.

Help Microsoft, get smacked for it

In a week were we have seen the two sides of Bill Gates exposed by the press ad nauseam, it is refreshing to see Microsoft do some of the stupid things why we love them for. The Beta version of the long-awaited/feared/loathed Windows Vista has been released to testers, with Microsoft sending large numbers of DVD-ROM discs to beta testers, or having them wait long times for downloading. A couple of enterprising guys decided to help out Microsoft and set-up a Windows Vista torrent, so that the effort of downloading the large files could be distributed and shared across the network. But that won't do, how dare these people share a microsoft product without permission? Enter Microsoft's lawyers:

"Microsoft has received information that the domain listed above, which appears to be on servers under your control, is offering unlicensed copies of, or is engaged in other unauthorized activities relating to copyrighted works published by Microsoft."

It seems to me like a boiler-plate take-down notice. , but what is more worrying is that this is not something done by hackers, crackers and/or pirates, it was done by members of the Windows beta-testing community willing to help Microsoft with the new operating system. Their statement says it all, really:

"As long-standing members of the Windows community, we would have much rather worked with Microsoft directly on this matter than to have circumvented established protocol. We have plenty of Windows Vista Feedback to share - and our feedback list gets longer by the day. We want to encourage all Microsoft Windows users to obtain the software through safe and trusted distribution channels."

*SIGH!*

June 2006 Issue of SCRIPT-ed online

The June issue of SCRIPT-ed, the Journal of Law and Technology, is now online. In this issue:

Editorial:
- Open Letter to the Gowers Review of Intellectual Property. AHRC Research Centre for Studies in Intellectual Property and Technology Law and IP Academics.

Special Feature :
- The Intellectual Property Incentive: Not So Natural As To Warrant Strong Exclusivity. Shubha Ghosh

Peer-reviewed articles:
- Patent Remedies: Online Management of IP Services. Allan Gordon , Jim Adams , Alexis Barlow , Peter Duncan , John Huntley , Martin Jones.
- Copyright Failure and the Protection for Tables and Compilation. Dennis K W Khong.

Analysis:
- GNU General Public License v3: A Legal Analysis. Andrés Guadamuz González.
- The Mystery of Intellectual Capital: A Prospectus. David R Koepsell.

Book Reviews:
- Antitrust, Patents, and Copyright: EU and US Perspectives, by Francois Lévêque and Howard Shelanski (eds). Reviewed by Alex Cameron.
- Copyright, Mass Use and Exclusivity, by Mikko Huuskonen. Reviewed by Bengt Domeij.

iPods and ripping CDs

The British Phonographic Industry (BPI) gave us a nice gift last week to celebrate the International Day of the Beast (6/6/6) by announcing that we could rip music into our iPods. Yes, the widely popular practice of making copies of what you have purchased is still illegal, but the kind folks at the BPI have decided to allow us to continue making these copies. In their press statement they declare that making private copies goes against the "All Rights Reserved" nature of UK copyright law. Their representative states that "without specific authorisation,– any UK consumer who rips CDs they have bought in order to fill an iPod or other MP3 player is currently guilty of copyright infringement." However, they promise not to enforce their rights, saying that "if they copy their CDs for their own private use in order to move the music from format to format we will not pursue them."

How kind of them.

Anyway, this has become rather relevant to me because I'm now the proud owner of a shiny 60 GB black iPod just like the one pictured. I have started engaging in illegal activities no longer in fear that the police will break down my door and take my new iPod away. However, ripping an entire CD collection is hard work.

Software Patents: The story

Florian Müller, the founder of the NoSoftwarePatents.com campaign, has published his long-awaited testimonial of his role in the amazing story of the software patent war in Europe. The book is entitled "No Lobbyists As Such - The War over Software Patents in the European Union", and it is now available online for download under an Attribution-NonCommercial-NoDerivatives Creative Commons German licence. A perfect read for the long flight to Rio next week.

Net neutrality defeated in the US

I must admit that I have not been following the Net Neutrality campaign, mostly because I felt that it seemed like an American phenomenon, and also because I cannot explain it any better than a ninja.

The Communications Opportunity, Promotion and Enhancement Act (Cope Act) is a wide-ranging piece of legislation that deals with all sorts of telecommunications provisions ranging from VoIP to emergency services. A specific amendment to the bill was sought to include a net neutrality principle, which would enshrine it in American legislation.

Perhaps the markets will decide adequately, watch for ISP watch-dogs and switch if they violate neutrality. I cannot see this happening in Europe, but I'm often wrong about future predictions.

Piratebay back online

Pirate Bay, the Swedish-based bittorrent search engine, is back online after the raid this week to their servers, where Swedish police confiscated some index files. Pirate Bay is a tricky one for authorities because there are no copies of any shared files, the system apparently only contains links to tracker files where people can try to find other users who are sharing the desired file. Pirate Bay is now based in a server in the Netherlands.

What has been the result? Well, it seems like there are so many new users that the servers are slowing down. Seems like this action produces the opposite result, as usual. ARRR Matey!

OSS Conference 2nd day

Some interesting papers from the 2nd day:

- Institutional Entrepreneurs and the Bricolage of Intellectual Property Discourses
Ann Westenholz

- Open Source and e-Justice
Cuno Tarfusser

Unfortunately the papers are not available online, which is rather strange from an "open" conference. Why not release them under Creative Commons? I am participating in a workshop, and the proceedings are available online under CC. Now, this is proper open source ! I will be speaking on the GPL v3, if you are interested in this article the proceedings are here.

OSS conference highlights

Some very good papers at the conference, I've been enjoying the excellent scholarship on offer, although practically none of it is legal. Interdisciplinary conferences can be tiring and challenging, but you are always open to an entirely different way of thinking. Some papers I've particularly enjoyed:

- Evolution of Open Source Communities
Michael Weiss, Gabriella Moroiu, Ping Zhao

- Beyond Low-Hanging Fruit: Seeking the Next Generation in FLOSS Data Mining
Megan Conklin

- Impact Of OSS On Social Networks
Communication Networks in an Open Source Software Project
Jeffrey Roberts, Il-Horn Hann, Sandra Slaughter

- Impact Of Social Ties On Open Source Project Team Formation
Jungpil Hahn, Jae Yun Moon, Chen Zhang

- Social dynamics of free and open source team communications
James Howison, Keisuke Inoue, Kevin Crowston

Another great find has been FLOSSmole, a research tool that offers raw data on open source projects.

OSS 2006

I'm in the beautiful Lake Como in Italy for the Second Open Source Systems conference. Some very interesting papers already, and more to come.

I will be highlighting some of the best in the next days.

DRM in the news

The BBC has a certain journalistic style where they make everything sound reasonable, and always offer both sides of the story (read their global warming reports). Here they comment on the new report on DRM by the All Party Parliamentary Internet Group (APIG). The report to be released later today, apparently contains praise towards some limited use for DRM, but also strongly criticises rootkit-like technologies, telling the industry that they could be subject to criminal liability for the use of such technical protection measures.

It seems that one of the main solutions proposed is to have some form of labeling of digital media which will let consumers know what they can do with their works. Why? Because people are ripping their CDs and placing them in their iPods, which is certainly an infringement under current UK law because there is no right to make private copies.

I'm giving up and buying an iPod this week. Any recommendations?

Silly Saturday Strikes Back

This is an excellent online game, but quite addictive. Pierce your foe with well-placed arrows. Another addictive game is Plastic Martians.

Fuck - the ultimate legal SSRN paper

Ok, so I am a bit obsessed with SSRN ratings. What does it take to have a succesful paper on SSRN? My most popular paper has only 108 downloads. Now witness Fuck by Christopher Fairman (3203 downloads and counting). Yes, this is a paper about the legal implications of the F word. The abstract says:

This Article is as simple and provocative as its title suggests: it explores the legal implications of the word fuck. The intersection of the word fuck and the law is examined in four major areas: First Amendment, broadcast regulation, sexual harassment, and education. The legal implications from the use of fuck vary greatly with the context. To fully understand the legal power of fuck, the nonlegal sources of its power are tapped. Drawing upon the research of etymologists, linguists, lexicographers, psychoanalysts, and other social scientists, the visceral reaction to fuck can be explained by cultural taboo. Fuck is a taboo word. The taboo is so strong that it compels many to engage in self-censorship. This process of silence then enables small segments of the population to manipulate our rights under the guise of reflecting a greater community. Taboo is then institutionalized through law, yet at the same time is in tension with other identifiable legal rights. Understanding this relationship between law and taboo ultimately yields fuck jurisprudence.

Provocative? Gimmicky? You decide. Now I'm off to research scatological legal references.

Venezuela goes free software

The Venezuelan Parliament is going to start discussing the draft legislation called "Ley de Infogobierno", which will overhaul e-government and software procurement in the Venezuelan public sector. Although I am often sceptical about Chavez and his Venezuelan project, some aspects of the legislation are rather interesting. Here are some highlights.

• Open standards: As far as I know, this is the first time that open standards are made into law. The draft sets various principles, which include openness, standardisation, interoperability and transparency. Proprietary principles are out.
• Technological neutrality: The act encourages something called "progressive interpretation" of the law, which will encourage courts to interpret existing legislation in light of new technological development. This sets a standard of technological neutrality rarely found in Civil Law jurisdictions.
• Farewell paper: Information technologies will be the preferred for all of the archiving operations performed by the State, but this will be in keeping with cultural sensibilities.
• Technological sovereignty: As far as I can tell, the act establishes a policy of encouraging research and development to ensure a certain level of national technological autonomy. Venezuelan resources and expertise will be favoured wherever possible. Expensive foreign consultants are out.
• Free Software: the government will “guarantee” that the software it uses fulfils several conditions. These include value added, the right to access the software’s source code, freedom to use, freedom to modify and freedom to distribute modifications. Intriguingly enough, government software cannot have undisclosed access paths. Could this be the first legal rootkit prohibition?
  

Will embedding free software into legislation facilitate open source principles? I do not think so. Free and Open Source are organic phenomena, top-down approaches do not work well. Still, Venezuela seems to be at the forefront of “progressive” politics again. I think that this legislation goes further than anything Brazil has.

Unlocking IP Conference

The programme for the Unlocking IP Conference is now available online. This event will take place on Monday 10 - Tuesday 11 July 2006 at the University of New South Wales, Sydney.

The programme looks quite impressive: Michael Geist, Brian Fitzgerald, Peter Drahos, Graham Greenleaf, Kathy Bowrey, Kimberlee Weatherall, Nic Suzor, Andrew Christie, Emily Hudson and Janet Hope amongst many others, including yours truly.

If you are anywhere near Sydney for those dates, this is a highly recommended event.