Time to be mildly optimistic about IP policy?

This week the IP and Technology blogosphere has been set aflame by the report from the BBC stating that copyright terms for sound recordings will be left as they are. From IPKat to Copyfight, everyone seems to find this is a delightful outcome to the Gowers Review of Intellectual Property (see the submission from IP academics on this topic).

I find this latest development quite remarkable, as I am sensing a turn of the tide, a swing of the pendulum, a change of wind (select your cliché), with regards to IP policy in Europe. From the report on the database right, to the defeat of the Computer Implemented Inventions Directive, I believe that policy-makers in Europe are becoming more attuned to the copyfighter argument against unchecked expansion of intellectual property rights. We could be faced for the first time to a policy body actually refusing to listen the the considerable rhetorical weight andcelebrity appeal of those intellectual giants, Mick Hucknall, Bono and Sir Cliff Richard (please note the heavy ironic tone).

While many of us have been in the sceptical bandwagon for the duration of the present century, it is quite nice to see that politicians may be catching on.

Gifts for geeks

(via Lilian Edwards) What do you give to a geek who has everything? Why not try ideas from the Open Source Gift Guide? From tools for building your own robot,through Ubuntu distros, to a device that will turn your iPod into the loudest player in the world, you can have a look at the very innovative gift ideas for those who hate Microsoft, Apple and all things proprietary.

My favourites? It's a toss-up between Free Beer and the MAKE Warranty Voider. I also loved the PortableApps Suite. I'm installing it into my iPod!

Copyright is socialism?

Mick Hucknall, of Simply Red fame, has written an unintentionally comical apology of copyright extension for sound recordings. Mr Hucknall tells us that copyright fulfills socialist ideals because anyone can create something and obtain a property right over their creation. It seems like 50 years of profits are not enough for some musicians, so they want to extend this protection to 95 years. Mr Hucknall reminds us that opposing such move is "retrogressive and misconceived". He says that "Copyright is not a monopoly restricting the free flow of ideas. Allowing valuable sound recordings to pass into the public domain does not create a public asset: it represents a massive destruction of UK wealth, and a significant loss to the UK taxpayer as exploitation moves offshore or into the grey market." This is quite indicative that the article is all about profits and not about socialism, or distribution of wealth. Indeed, it is all about tax returns and the ability to squeeze profits for a bit longer.

Needless to say, I believe that many of the underlying assumptions in this article are wrong. Firstly, there seems to be an unsupported claim that longer copyright periods will serve as an incentive to creators. There is no evidence whatsoever that this is the case. On the contrary, when was the last time that you met a struggling musician who expressed their desire not to record a new song because of limited copyright extension terms? Secondly, the argument that extending copyright terms for sound recordings will have an effect on the government's coffers is also not supported by evidence. Thirdly, Mr. Hucknall claims that copyright is the sole economic foundation of the knowledge economy. It seems like this person has never heard of user generated content, Wikipedia, blogs, podcasting and all sort of content that does not rest on copyright.

The problem here is that some people seem to continue to be enamoured in their entrenched idea that copyright owners are somehow special people, and that the rest of us should consider ourselves lucky if we are granted the right to purchase content produced in the short head. However, the knowledge economy actually rests on the short tail, that vast majority of people who have found out that the creative process is not only a monopoly of a few writers and musicians. We are all copyright owners, and we are not all interested in earning profits from our works.

The Guardian has published a couple of replies to Mr Hucknall here and here. Andrew Brown's reply is particularly well-written.

The Internet is NOT for porn

Common sense tells us that the Internet is for porn, but latest research does not reflect this. A report from Berkley statistician Philip B. Stark on behalf of the U.S. Department of Justice indicates that only 1% of websites searchable by Google are porn, and that search engine filters manage to block 87-98% of sexually explicit content.

The report comes from the trial stage of the case American Civil Liberties Union vs Gonzalez (formerly ACLU v Reno and ACLU v Ashcroft), which is underway. The case was brought by the ACLU against the U.S. Department of Justice to declare the Children Online Protection Act (COPA) unconstitutional because it violates freedom of speech. The report will not help the case by the DoJ, as it is clear that filters are working, and little children are not always exposed to porn the moment they log into their computer.

Another online libel and ISP liability case

The Californian Supreme Court has ruled on the case of Barrett v Rosenthal. The case was brought by two doctors who operated a website that exposed health frauds. The defendant is one Ilena Rosenthal, who hosts an online forum and discussion group. The two plaintiffs alleged that Rosenthal and others committed libel by maliciously distributing defamatory statements in emails and forum posts. The defendant claimed that the posts were protected by freedom of speech, but also that some of these boards are part of the "Wild West" of the Internet, where it is impossible to exercise any editorial or policing.

One of the important parts of the ruling is that it revisits the famous ISP liability case Zeran v AOL. Distributors and ISPs have for long been awarded some form of immunity from liability for libel and defamation, mostly based on the fact that the sheer volume of information that passes through servers makes all form of editorial oversight impossible.

What is novel about this case is that Rosenthal is not an ISP in the traditional sense, but an individual who administers a forum. The question then is whether individuals are to be awarded immunity. Rosenthal won the case in first instance and in appeal. The Court of Appeals went as far as to consider that there is no operational difference between individuals and ISPs. The California Supreme Court has rejected this line of thought by making a clear distinction between individuals and large enterprises. They argue:

"Individual Internet “users” like Rosenthal, however, are situated differently from institutional service providers with regard to some of the principal policy considerations discussed by the Zeran court and reflected in the Congressional Record. In particular, individuals do not face the massive volume of third-party postings that providers encounter. Self-regulation is a far less challenging enterprise for them. Furthermore, service providers, no matter how active or passive a role they take in screening the content posted by users of their services, typically bear less responsibility for that content than do the users. Users are more likely than service providers to actively engage in malicious propagation of defamatory or other offensive material."

However, while there seems to be a distinction between individuals and ISPs, the California Supreme Court had to conclude that the language in the legilegislation does not make a distinction, and therefore even idnividuals would be awarded blanket immunity. They however recommend the plaintiffs should not pursue the intermediary, but to sue the publisher of the defamatory Internet publication.

Microsoft splitting open source community

We have already written about the agreement between Microsoft and Novell, in which the open source developer has obtained a patent infringement "get out of jail free" card from the Redmond company. As expected, this has now created several replies from the free and open source community.

Firstly, Samba developers have requested Novell to reconsider because they think that this is a tactic that will separate commercial and non-commercial users of open source software, and therefore will balkanise the community. They say:

"The patent agreement struck between Novell and Microsoft is a divisive agreement. It deals with users and creators of free software differently depending on their "commercial" versus "non-commercial" status, and deals with them differently depending on whether they obtained their free software directly from Novell or from someone else. The goals of the Free Software community and the GNU GPL allow for no such distinctions."

And piling on the pressure on Novell, Eben Moglen has now stated that GPL v3 will be redrafted in order to make clear that this agreement will be in violation of the GPL. Moglen says that "GPL version 3 will be adjusted so the effect of the current deal is that Microsoft will by giving away access to the very patents Microsoft is trying to assert."

I think that this is further evidence of the widening split in the Free and Open Source movement. GPL v3 is becoming more and more restrictive, up to the point where it seems clear that its definition of "free" is anything but. Microsoft seems to be playing the split quite well, much like a predator picking the slower wildebeest from the pack (or dare I say, picking the weakest gnu?)

My main concern is that some of the language being used is redolent of the Cold War/War on Terror Manichaean rhetoric of "us versus them". Read this statement from Moglen, then exchange the word Microsoft with "Soviet Union" or "Iran", and you will see what I mean:

"I would not be advancing the course of discussions if I made any statement about who we are talking to here in specific terms. I will only say that it is my experience that Microsoft has never been in any hurry to identify itself as in direct negotiation with the free world.... In general, it is better at this point to say that all lines of communication that I think are necessary in order to resolve this situation peacefully are open, that we have not been unable to reach any parties that we thought it would be prudent or productive to talk to."

Da, comrade.

Microsoft's grand DRM plan to take over the world

(Cue organ music and evil laughter). The first Zune players have now been released in the United States. Microsoft's answer to the iPod has been controversial from the start, not only because it follows on Microsoft's well and tested method of coming late into a market and using its comprehensive weight to grind its competitors into submission. However, they may be taking on more than they can chew with iPod, which seems to have considerable brand recognition and general zeitgeist. The Zune is offered in three colours (including the ugliest brown in the world, I mean, what where they thinking?).

Most interesting has been Zune's DRM strategy, which is incompatible with Microsoft's own PlaysforSure TPM format. It seems like Microsoft wants to create two separate markets, one for third party stores and devices, such as Yahoo! Music, Napster, Creative and Philips; and the other market for its own players, software, store and devices. This includes a strategy to bring together Zune, Windows Vista and XBox as the next generation of entertainment environment for the digital consumer, all locked in a nice and tidy technically protected zone handled and controlled by Microsoft.

Where is the store? Zune has its own Zune Marketplace (read iTunes rip-off), but it seems to me that the overall strategy will be to bring all marketplaces together, such as Xbox Live's Marketplace, as it already allows people to download games, upgrades, and will soon offer movies and video shows. Add to this equation Windows Vista, and you start seeing how Microsoft expects to lock its customers into Xbox-playing, Zune-listening, Vista-using robots. And I don't even want to mention the wireless sharing feature, which will expire after three plays or three days.

I'll keep my iPod, thank you very much.

Survey on privacy expectations of bloggers

Karen Mc Cullagh has requested that I publicise this survey on privacy expectations of bloggers. If you blog, click on the link and take the survey. Karen says:

What this study is about…?

I'm conducting an online survey to explore the privacy attitudes and expectations of bloggers as part of my PhD research, which is sponsored by the ESRC and Office of the Information Commissioner, UK.

If you participate you will be asked to answer questions anonymously about your blogging practices (i.e. what kind of information you write about on your Blogger, Bebo, Myspace, LiveJournal, Xanga, Facebook, Friendster etc.) and your expectations of privacy when publishing online.

What will happen your answers...?

All answers will be stored and analysed on a confidential basis.

The responses will be used to inform academic and policy discussions on blogging practices and attitudes towards privacy.

Link to the survey:

Please take part in the survey: http://www.ccsr.ac.uk/privacysurvey/

Finally, could you please encourage other bloggers to participate in the study.

It takes less than 5 minutes to complete the survey!

Further information:

For further information on my research please visit

http://www.ccsr.ac.uk/staff/km.htm

Many thanks,

Karen

GPL wins case in the United States

The GPL does not contravene American antitrust law, according to the Seventh Circuit Court of Appeals. The appeal case is Wallace v IBM, Red Hat and Novell, in which one Mr Daniel Wallace claimed that he would like to compete against the Linux operating system by selling derivatives or writing an operating system from scratch, but that this was not possible because Linux is offered for free. According to Mr Wallace, the GPL is part of a conspiracy because it makes software free forever, and it is impossible to compete against free products. Someone should have explained to Mr Wallace that free is not free as in beer, but free as in freedom.

Mr Wallace lost the case in the first instance because he could not prove that he had suffered an antitrust injury. The Seventh Circuit Court of Appeals did not buy Mr Wallace's arguments either. Judge Easterbrook delivered an excellent decision, which is worthy of reproduction:

"Software that is not maintained and improved eventually becomes obsolete, and the lack of reward may reduce the resources devoted to maintenance and improvement of Linux and other open-source projects. If that occurs, however, then proprietary software will enter or gain market share. People willingly pay for quality software even when they can get free (but imperfect) substitutes. Open Office is a free, open-source suite of word processor, spreadsheet and presentation software, but the proprietary Microsoft Office has many more users. Gimp is a free, open-source image editor, but the proprietary Adobe Photoshop enjoys the lion’s share of the market. Likewise there is a flourishing market in legal treatises and other materials, plus reference databases such as LEXIS and Westlaw, even though courts give away their work (this opinion, for example, is not covered by copyright and may be downloaded from the court’s web site and copied without charge). And so it is with operating systems. Many more people use Microsoft Windows, Apple OS X, or Sun Solaris than use Linux. IBM, which includes Linux with servers, sells mainframes and supercomputers that run proprietary operating systems. The number of proprietary operating systems is growing, not shrinking, so competition in this market continues quite apart from the fact that the GPL ensures the future availability of Linux and other Unix offshoots."

Hear, hear! This lays to rest one more FUD attack on the GPL. Let's hope that SCO v IBM will finally produce the desired result.

UK denies Denial of Service attacks

(via Out-Law) The Police And Justice Act 2006 has been passed yesterday. This new Act contains criminal sanctions for those who access a computer with the intent of impairing its operation, to prevent or hinder access to any program or data held on it, or to impair the operation of any program or data.

This is obviously intended to attack the implementation of technological attacks to a computer in order to criple it, and includes Denial of Service attcks, because they will hinder the operation of an internet server.

10 years of the WCT

I'll be attending a symposium next Friday at Case Western Reserve Law School in Cleveland entitled "The 1996 WIPO Copyright Treaties: 10 Years Later". There will be a webcast of the event for those interested.

Copyright industry exaggerates piracy

According to an article from Oz, the Australian Institute of Criminology will soon publish research that warns that piracy figures quoted by software, movie and music industries are absurd, inflated, and what they call "self-serving hyperbole". Really? Colour me surprised! A quote from the yet unpublished report says:

"It is inappropriate for courts and policy-makers to accept at face value currently unsubstantiated statistics. Either these statistics must be withdrawn, or the purveyors of these statistics must supply valid and transparent substantiation."

Very well said. I often criticise piracy reports that seem to equate each pirated copy to a lost sale, when no amount of research has ever proven this to be the case.

Defending your reputation online

As we spend more and more time online, we are (wittingly and unwittingly) leaving behind vast amounts of personal information. Dodgy poems, bad pictures, posts in the Pokémon forum, that Céline Dion fan website... you may have several things rattling online of which you're not particularly proud. Personally, I do not find this too problematic (after all, I have a picture of a llama in my weblog, my embarrassment threshold is rather high). However, employers, education authorities and members of the public are increasingly practicing background Googling before meeting someone (come on, admit that you've entered people's names into Google as well). What if your future employer or your next date finds your picture dressed like a Klingon? Could you live with the shame?

Reputation defender is here to help. The company promises to pursue internet service providers and web designers in order to remove embarrasing material through "proprietary" methods. They will also provide a monthly reputation report.

Now, if only I could remove some of my earlier journal articles from circulation...

Microsoft waives patent enforcement against SuSE

(Thanks to Amy Terry Sheehan for link) Microsoft and Novell have signed an agreement by which the software giant will not assert its software patent rights for technology that can be used in SuSE Linux distributions. The agreement also provides Microsoft users with the possibility of obtaining support for dual-boot systems that contain both operating systems.

As a person who has both SuSE Linux and Windows in his laptop, I think that this is great news. There is going to be further incentive for corporate enterprises to adopt Linux without fear of SCO-like litigation for potential patent infringement. This agreement also recognises that there is a growing number of people who are more than willing to bypass all of the ideological baggage involved with open source, and take the pragmatic approach of using whatever works and is easier to use. I believe that this is further evidence that Microsoft has changed its tactic with regards to open source software, and that the relationship with large parts of the community have been thawing.

However, I'm still a bit concerned about what Microsoft is getting out of this agreement. It's clear that this is very good news for Novell, but what's in it for Bill Gates? (cue eerie conspiracy music)

Criminal Enforcement Directive Workshop

Free Public Workshop - 13 November 2006

The first in a series of free public workshops is to be held Monday, 13 November 2006, 6pm (followed by drinks).

Criminal Enforcement Directive and Patent Law
Let the Punishment Fit the Crime?

The workshop will be held in the seminar room of the Queen Mary Intellectual Property Research Institute, at the Centre for Commercial Law Studies, Queen Mary University of London , Charterhouse Square (map).

The first in the series will examine the proposed European Directive on criminal measures aimed at ensuring the enforcement of intellectual property rights (Criminal Enforcement Directive). This workshop will look at the possible implications of the Directive specifically in the field of patentable technologies and patent practice.

Expert Panellists

Gwilym Roberts, Partner, Kilburn & Strode Patent Attorneys

Julian Heathcote Hobbins, Senior Legal Counsel, FAST (Federation Against Software Theft)

Phillip Johnson , Barrister and DTI Legal Adviser to the UK Patent Office

(Chair Johanna Gibson , Director of Patenting Lives Network, Queen Mary)

The meeting is free and open to the public, but places are limited, so please register by email to Johanna Gibson.

Details of forthcoming workshops will be announced on this website and the Patenting Lives Blog.

More on Aerotel's ruling

I've finished reading Aerotel v Telco Holdings, and I have to say that I have been impressed with a lot of the excellent reasoning displayed by Lord Justice Jacob in the ruling. I have selected some quotes:

"[...] despite the fact that such patents have been granted for some time in the US, it is far from certain that they have been what Sellars and Yeatman would have called a "Good Thing." The patent system is there to provide a research and investment incentive but it has a price. That price (what economists call "transaction costs") is paid in a host of ways: the costs of patenting, the impediment to competition, the compliance cost of ensuring non-infringement, the cost of uncertainty, litigation costs and so on. There is, so far as we know, no really hard empirical data showing that the liberalisation of what is patentable in the USA has resulted in a greater rate of innovation or investment in the excluded categories. Innovation in computer programs, for instance, proceeded at an immense speed for years before anyone thought of granting patents for them as such. There is evidence, in the shape of the mass of US litigation about the excluded categories, that they have produced much uncertainty. If the encouragement of patenting and of patent litigation as industries in themselves were a purpose of the patent system, then the case for construing the categories narrowly (and indeed for removing them) is made out. But not otherwise.

In our opinion, therefore, the court must approach the categories without bias in favour of or against exclusion. All that is clear is that there was a positive intention and policy to exclude the categories concerned from being regarded as patentable inventions. We must simply try to make sense of them using the language of the Convention."

In one of the most interesting parts of the ruling, Jacob J asks the EPO Board of Appeals for clarification with regards to their application of Article 52 of the European Patent Convention. This has been commented as a non-decision, but I completely disagree. It is clearly a decision because the ruling already talks about Macrossan's patent application. What is done here is to ask for clarification, although it is not the time and place to do it. Jacob J asks based on opinions by the parties and the British Comptroller of Patents:

"(1) What is the correct approach to adopt in determining whether an invention relates to subject matter that is excluded under Article 52?
(2) How should those elements of a claim that relate to excluded subject matter be treated when assessing whether an invention is novel and inventive under Articles 54 and 56?
(3) And specifically:
(a) Is an operative computer program loaded onto a medium such as a chip or hard drive of a computer excluded by Art.52(2) unless it produces a technical effect, if so what is meant by 'technical effect'?
(b) What are the key characteristics of the method of doing business exclusion?"

I would very much like to know the answer to those questions as well.

YouTube blues

"If you upload a video to YouTube you are a legitimate target for legal action in the same way the music industry is suing MP3 users [...] Most of the clips uploaded to the site will be infringing copyright in some way."

That is an inaccurate statement. While most of the TV and movie clips loaded to YouTube are infringing, it's not true that users are legitimate targets for legal action. Users will NOT be sued by the TV and movie industries, at least in the near future. Who made such a ridiculous statement? Well, according to Metro and the Evening Standard, I did! My first misquote, I feel like an important career step has been reached.

In other news, YouTube has been sued by Universal Tube and Rollerform Equipment Corp; proud holders of the domain name utube.com. The problem for the tube manufacturer is that millions of people log into their site while looking for YouTube, which knocks down the servers. The suite then is one of trade mark confusion, not one of copyright infringement.

After all, the Internets is a series of tubes...