Downloading is not stealing

(via The House of Commons) A video parody from the University of Sidney's Law Revue that more accurately depicts the nuances in copyright infringement.

From the video:

Downloading movies is not stealing
Copyright is intangible property
Copyright is a chose in action
You would not depreciate your friend's chose in action
Downloading depreciates copyright
Somewhat
Downloading is against the Law
The (Civil) Law
But it's not like the cops will come
So Don't Do It.
Please.

Open source licences are contracts

Habitual readers may have noticed that one of the repetitive memes in this blog is that copyleft licences are contracts. In Jacobsen v Katzer, and American court has agreed.

The case involved Robert Jacobsen, an open source developer participating in an open source project called Java Model Railroad Interface (JMRI), which is a model train software released it under the Artistic License. Jacobsen received a letter demanding the licence fee payments from a company named Kamind Associates, owned by Matthew Katzer, which has obtained software patents over model rail road software (particularly U.S. patent 7,216,836). Jacobsen decided to pre-empt legal action and sued Katzer first, alleging that the patent is invalid on the grounds of obviousness and for failure to meet disclosure requirements. He later amended the complaint to include copyright infringement, as he claims that his software pre-dates Katzer's.

The current decision rules on a motion to dismiss by the defendants and on a motion for preliminary injunction from the plaintiff. The District Court granted some of the motions to dismiss, denied others and denied the claim for preliminary injunction. The important bit of the decision is the analysis of the copyright infringement claims. The Court has declared that because the software is released to the public online through an open source licence, there is a clear permission to use the software. The Artistic License is not a copyleft licence, it allows modification and the creation of derivatives, provided that those doing it insert prominent notices on each file, and perform one of the following:

"a) place your modifications in the Public Domain or otherwise make them Freely Available, such as by posting said modifications to Usenet or an equivalent medium, or placing the modifications on a major archive site such as ftp.uu.net, or by allowing the Copyright Holder to include your modifications in the Standard Version of the Package.
b) use the modified Package only within your corporation or organization.
c) rename any non-standard executables so the names do not conflict with standard executables, which must also be provided, and provide a separate manual page for each non-standard executable that clearly documents how it differs from the Standard Version.
d) make other distribution arrangements with the Copyright Holder."

The District Court has astutely understood that such restrictions are not copyright restrictions, they are contractual obligations. They claim:

"Based on the both the allegations in the amended complaint and the explicit language of the JMRI Project’s artistic license, the Court finds that Plaintiff has chosen to distribute his decoder definition files by granting the public a nonexclusive license to use, distribute and copy the files. The nonexclusive license is subject to various conditions, including the licensee’s proper attribution of the source of the subject files. However, implicit in a nonexclusive license is the promise not to sue for copyright infringement. [...] Therefore, under this reasoning, Plaintiff may have a claim against Defendants for breach the nonexclusive license agreement, but perhaps not a claim sounding in copyright. [...] However, merely finding that there was a license to use does not automatically preclude a claim for copyright infringement. [...] The condition that the user insert a prominent notice of attribution does not limit the scope of the license. Rather, Defendants’ alleged violation of the conditions of the license may have constituted a breach of the nonexclusive license, but does not create liability for copyright infringement where it would not otherwise exist."

Apologies if I go all geeky and unprofessional here, but ZOMG! The implications for this ruling are huge. The District Court alleges that there should be no presumption of a copyright infringement claim, and that such claim should be proven before the plaintiff can make its case. If they cannot provide evidence that such a claim may be successful in court, then the Jacobson can only rely on the contractual elements of the licence in order to seek redress; namely, the failure to place attribution notices is not enough to make a copyright claim, but a contractual one.

Interestingly, the District Court understood perfectly the trade-off in open source licences which rests at the very heart of the contract/licence dichotomy: if you comply with the licence, we will not sue you for copyright infringement. But, if you cannot sue for copyright infringement, then all you have is a claim for breach of contract.

I'm now off to smugly finish my coffee...

Update 1: OSS proponents are understandably upset by the ruling, but perhaps it would be better if open source acted as if they are contractual obligations instead of relying on the dogmatic mantra that contracts are licences.

Update 2: The paragraphs cited from the decision come from a section entitled "Plaintiff’s Claim Sounds in Contract, Not Copyright". By stating that the plaintiff does not have a copyright infringement case, but a breach of contract claim, I would believe that it is clear that the licence is indeed a contract (otherwise, you could not have a contractual case).

Australian teenager cracks porn filter

An Australian teenager took forty minutes to crack the pornography filter provided by the Australian government, according to news.com.au. This will hopefully blow up in John Howard's face, as he seems keen to be seen as taking tough action against the evils of the Internet.

A teenager interested in porn? Colour me surprised!

Attack of the killer technophobes

I have been meaning to to write about this column by Marina Hyde in The Guardian, but I wanted to keep some distance from it. While I welcome all sorts of articles that criticise technologies, I have been distraught by certain tone emerging in the supposedly more progressive sectors of the British media outlets, where we are seeing the type of Luddite claptrap exploited by the likes of the Daily Mail.

I have made my feeling about Second Life clear, but I resent those who protest against the entire technology based on a perceived attack on "the human soul" (whatever that is), or similarly fuzzy-sounding clichés. All new technologies are always met with fear by the gatekeepers of the time. I can imagine a hand-written pamphlet from the 1450's protesting at the disturbing moveable type printing press. The issue is that new technologies are usually neutral, and that the use given to the technology will often be that which reflects the society in which it develops. Virtual worlds are not disturbing per se, the way we use them could be. However, the opposite gushing mindless technophile adoration of all things Second Life should be met with similar scepticism.

I was similarly struck by a sudden urge to throw something at my digital receiver when I heard an interview by Luddite-In-Chief John Humphrys with Vint Cerf on Radio 4's Today program. It dawned on me that we are seeing a marked resurgence of technophobia in the British media, and that Hyde's piece is only a symptom of the general malaise. The interview centred around the topic of Internet regulation, and I have to applaud Cerf on masterfully dealing with the creeping paranoia displayed by Humphrys. The interviewer tried to make a point that perhaps Cerf should be feeling a bit responsible by the invention of the Internet, just like some of the scientists working on splitting the atom felt responsible by nuclear weapons (I won't even comment on the equating of the Internet with WMDs). Cerf's reply was that the Internet is more analogous to roads. Those who invented roads cannot be in any way held responsible for whatever is built around them. Cerf similarly made the brilliant point that the Internet is just a reflection of society, if we find disturbing things online, should we be concerned about the society that spawns them, or by the medium that distributes them?

I'm still trying to figure out why is it that some in the mainstream media hate Web 2.0 so much. YouTube is presented as the example of everything that is wrong with society, a place where hoodies make their threats, and happy-slappers rule the digital waves. To these people, the Internet as a whole is filled with filth, and "something should be done about it". Humphrys kept pleading for some form of far-reaching regulation, "where do we draw the line" he asked. The answer according to Cerf was simple. It can be done, it has been done. By China. You may have heard about the Great Firewall of China, right? That is one way of doing it. If you want to regulate the Internet, that is the only model that really works.

Vint Cerf is now one of my heroes.

RMI WIPO seminar

I have received this press release where yours truly will be speaking.

WIPO Seminar to Address Digital Rights Management Technologies

Geneva, August 27, 2007
MA/2007/30

The World Intellectual Property Organization (WIPO) is hosting a Seminar on Rights Management Information at its Geneva headquarters on September 17, 2007. Rights management information (RMI) consists of metadata used to identify digital content and owners of rights, and to express licensing information in digital form. The seminar will explore the relevance of RMI, survey emerging technologies and standards, and identify challenges affecting copyright owners, Internet users and intermediaries such as search engines. The seminar will also address crucial questions such as ownership, licensing and management of IP as well as the tools used to manage creative content and identify users and owners.

RMI is increasingly relevant and important to online content distribution. The technologies used to manage rights information have been improving in recent years through increased sophistication in metadata schemes and development of standards. For example, RMI can help users to customize their searches and engage in effective and flexible licensing agreements with right owners. Moreover, the rise of User Generated Content (UGC), the growth of new online licensing tools such as Creative Commons, and the growing popularity of blogging and social networking, offer a promising horizon for use of RMI in increasing copyright compliance while providing users greater functionality and flexibility to access and use content.

The program and information on the seminar, which will be in English, are available at http://www.wipo.int/meetings/en/2007/sem_cr_ge/. The event is free of charge and open to the general public. For registration, please complete the on-line registration form at http://www.wipo.int/meetings/en/2007/sem_cr_ge/registration.html .

Journalists requiring further information or wishing to attend this event are requested to contact the Media Relations and Public Affairs Section at:
Tel: (+ 41 22) 338 81 61, 338 95 47
Fax: (+41 22) 338 82 80
E-mail: publicinf@wipo.int

State of Play: Identity

On Day 3 I attended the Identity workshop organised by James Grimmelmann from New York Law School and Caitlin Hall from Yale Information Society. This was a surprisingly good and fruitful session, not surprising because of the organisers, but because workshop format can be quite uneven.

The small number of participants meant that we were able to engage in a detailed discussion on the issues of identity in virtual worlds. We agreed that one of the main functions of identity is that of reputation management, both in the online and off-line worlds. Amongst those present was a Korean judge, who commented on some of the fascinating rulings coming out of Korea with regards to virtual identity. For example, there have been cases of online raids that have spilled over into the real world because many people play in the same Internet cafes. Another case cited was a situation that explored the complex legal interaction between virtual identity, account and the person behind it. People have separate accounts with all sorts of avatars, so can one identify and circumscribe liability to the user, or can it be instanced to a specific avatar? In this particular case an avatar in Lineage was banned from the game, but the user had four accounts, which were all banned as well. The user sued to get only one of the accounts banned, but the appeals court decided in similar line to the first instance. However, the Korean High Court was asked to decide, and in their final ruling only one account was banned, and the other three were allowed to remain.

This is mind-blowing stuff, and it prompts one to try to find out more details about the growing game-related jurisprudence coming from Korea.

State of Play: Day 2

Last night we were treated to a sumptuous and delicious dinner at Singapore Zoo, and then taken on a night safari. Tigers, lions, hippos, giraffes... but no gnus. Oh yes, there were no velociraptors sighted on the tour. As a Costa Rican, I'm always conscious about the inherent dangers built into wild-life tours.

Understanding Virtual World Inhabitants. Rather interesting session about social research on virtual worlds. The panel included Henrik Bennetsen (Stanford Humanities Lab), Ian Lamont (Computerworld), Thomas Malaby, (University of Wisconsin Milwaukee), and Aleks Krotoski from the Guardian's Games Blog. The discussion centred on the research conducted on the many types of research conducted on MMOs and virtual worlds, and Alekx gave data on gender distribution, (roughly 80%-20% in most games, but it is more equal in SL and WoW). I have this theory that those games are indeed popular BECAUSE they are the ones with the real women, but I did not want to put it forward to the panel. Interestingly, games like EVE Online have gender distributions of 95% males (it's all about the ships and explosions).

Space, Place, and Culture Inside Virtual Worlds. Spaces, architectures, property in virtual worlds, dealing with issues of architecture, design, input and information in-game. There was a lot of discussion on the management of the concepts of space in worlds where the concept does not necessarily mean the same as it does to us, and where one can build different space-time continua (or is it continui?)
My favourite presentation in this panel was actually one that did not fit in it. Jeff Malpas, a philosopher with the University of Tasmania, gave one of the most trhougt-provoking and challenging talks of the conference. He was interested in talking about the underlying principles for the analysis of virtual domains, and he began by challenging those present about their preconceptions, or to be more accurate, their lack of proper analytical frameworks when dealing with some of the research subjects involved. His research interest lies mostly on the philosophy of place and the structure of space. I agree that there is a marked lack of a conceptual framework, but I disagree that there is so much of a methodological quagmire. Despite protestations from philosophers, some people conducting research in the area do know what they are doing, and they are using tried and tested methodological tools from their disciplines.
He made a mention about the autonomous nature of virtual worlds from the real world, and he commented that there is no such thing, which seemed to generate certain animosity from parts of the audience. Virtual worlds are tied in with real worlds (I agree thoroughly with this). He did mention Hobbes and social contracts, and how these may explain regulation and the acceptance of in-game rules governing virtual worlds. Players, by taking part, express their consent on this social contract. I found this part rather less straightforward. I'm suspicious when philosophers mention Hobbes and not Rousseau when talking about social contracts. Besides, the philosophy of law has moved considerably since then, but I digress. His last point was about the polictics of the game, why should worlds be democratic? Why should there be any sense of democratic entitlement by players?
Yee Fen Lim, presented an excellent legal analysis of looking at virtual land with the same tools awarded to real land, and looking at how property is defined in common law. I'm not sure I agree, but it was thought-provoking.

State of Play: Regulation

The highlight session of the conference for me was Regulating Virtual Worlds, which I was very much looking forward to. I'm sure this was intentionally built into the choice of speakers, but each of the panelists took a very clear regulatory approach to the new technology.

Charles Lim Aeng Chang from the Singapore Attorney General's Chambers favoured the public regulation approach. He commented that, although there is little point in regulating something that cannot be enforced in practice, governments will often take "symbolic measures" to make their intention clear. He cited the example of the regulation of pornography sites in Singapore, where the government has banned 100 sites. While acknowledging that this is inefficient, he made clear that these measures conveyed an important message. Other government efforts have been more efficient, such as the Great Firewall of China, or the FSA's declaration that there is potential money-laundering in cyberspace. An effective public regulatory approach in Singapore has been the enforcement of local anti-racist and religious tolerance legislation, which has been applied against some local teenagers to maintain the balance in a multi-racial and multi-religious society. The Singaporean government is also conducting studies on the social impact of virtual worlds. He concluded stating that Common Law is robust enough to regulate new technologies, such as it happened with cyberspace regulation.

Joshua Fairfield from Indiana University School of Law took the Private Law approach through contracts. He mentioned that contract law has already been used effectively in virtual worlds through the use of EULAs and other methods. There is also an important social contract taking place in some of these worlds, but he was concerned that there was already litigation taking place which attempts to enforce terms and conditions against third parties that were not part of the agreement. An example is class action litigation against farmers in WoW, as there is no existing contract between the game developers and the farmers. Professor Fairfield also seemed to recognise that there is extensive public regulation taking place as evidenced by criminal enforcement of online theft in Korea, or the application of the online gambling ban in Second Life. I found his arguments the most convincing.

James Grimmelmann from New York Law School was the advocate of the Code argument. Software is both the problem and the solution, and although he did not say this, it was clear that his argument was that the solution to the machine is in the machine, a typical architectural argument. If the game developers are creating authoritarian regimes, then the solution is for users to migrate to more open platforms run with open source software, and developed with the open source democratic ethos.

David Post from Temple Law School was more in the libertarian camp, making an argument that echoes his famous Net Federalism. The inhabitants of virtual worlds need and want laws, so why aren't the gods from the games providing them for them? There is a strong argument to be made in favour of thinking of virtual worlds as separate territories governed by their own legislative spheres. He declared that it is an inalienable right of every community of individuals to choose whether to be governed by a new legal regime, something that he called a "self-evident truth". He asked the people of the virtual world to get together and invoke on the gods to be given laws. Although I found his arguments quite well-put, I'm afraid that I do not agree with his self-evident truth.

This was a thoroughly enjoyable session. As I have pointed out, the arguments are very much the same range of arguments we have heard before during the golden age of Cyberspace Regulation. The problem of course is that the argument is over, and what we are left with is to try to solve the much more difficult question of jurisdiction. Governments have proven that they will try to exercise jurisdiction over virtual worlds. You don't even have to regulate the entire medium, As Wu and Goldsmith have commented eloquently in their book "Who Controls The Internet", governments will be happy to regulate the choke points.

During questions there were some comments about privacy and the fact that these worlds are the new Panopticon, but it was agreed that this was a vast topic in itself.

State of Play V

I'm in Singapore for State of Play V, which concludes a self-indulgent week of buffing-up my research into games and virtual worlds in preparation for next month's Gikii 2.

I've just come from a dinner where we were shown a documentary on businesses in Second Life, following the rise of virtual designers Pixel Dolls. I was intrigued by many of the features in the film, but not very keen on some of the broad claims made about virtual worlds, particularly some of the over-the-top gushing about Second Life and its importance.

Update: The movie is called Ideal World.

Australia set to clean the Internet

John Howard, the Australian Prime Minister, has vowed to clean the Internet by "blocking pornography, upgrading the search for chatroom sex predators and cutting off terror sites." The PM plans to achieve this by giving all Australians a free content filter.

What is it about politicians and the Internet? We know that the politics of fear are usually quite popular with certain type of demagogues, but I'm always amused by the use of scare tactics to try to convey the idea that the Internet is filled with sexual predators. This is a serious problem of risk management. The Internet is indeed a dangerous place, but what we need to fear is phishing, viruses and malware (see some Internet crime statistics).

Edinbrugh Interactive Festival, Day 2

The second day was extremely interesting, particularly from my perspective. The first two sessions were very PS3 heavy, with a session on motion-capture in Heavenly Sword. I was very impressed with this game, enough to actually consider buying a PS3 just to play it.

Virtual Societies Session:
This was the best session of the conference in my humble opinion.

Hilmar Petursson from EVE Online gave an excellent presentation (again) on some of the more interesting academic issues arising from virtual worlds. One of the most important topics raised was that of the social emergence in virtual worlds. Hilmar mentioned Dunbar's number, which "represents a theoretical maximum number of individuals with whom a set of people can maintain a social relationship, the kind of relationship that goes with knowing who each person is and how each person relates socially to every other person." The theoretical number is 150, which would seem to explain many issues in the "small worlds" phenomenon. This is of particular relevance for EVE because alliances and corporations display scale-free characteristics. In the end, it all comes down to social grooming, or "how many people can you pick lice from?"
Hilmar's presentation had some interesting governance interest. It seems like in this free environment there is still need for authority. After a certain number of individuals get together, there seems to be a critical level at which people require authoritative figures, including alliances, management, governments, etc.
One common theme in these talks is whether operators are gods in their worlds. They think of themselves more like governments, or Egyptian god-like rulers, but I personally believe them to be more like gods in-game.
Hilmar ended with specific governance issues. There will be an experiment in the coming year to create a Console of Stellar Management to generate democratic empowerment of its membership, which will be a very interesting case to follow.

Jim Purbrick from Second Life gave a candid look at some of the governance issues in the virtual world which generate virtual protests from their users. There was also mention of the empowerment of the user-base, which is something that most developers of virtual worlds seem interested in doing (or be seen in doing). One protest was brought by Linden Labs' decision to potentially "tax" revenue obtained by in-game businesses, after all the profits are based on an environment created by the service provider. Another source of worry has been the fact that the client is now open source, which has allowed the creation of "copybots" that can come into the Second Life and generate a perfect copy of the entire world, which obviously worries those who create content and trade on those goods. I think of this as if people could go around with replicators copying 'real' property.
The most controversial issue has been the banning of gambling in-game. This is a difficult jurisdictional issue, which seems to assume that everyone in Second Life is subject to American Law. Is everyone in EVE subject to Icelandic law?
The most interesting part of the SL presentation to me was the announcement that Linden Labs is moving towards a User-generated platform as it is thinking of devolving all aspects of support, including server space, customer support and maybe other aspects of the world. The community will provide all of these. My take is that this is actually done to dilute their potential liability by eroding their own power over the world. aspects. was : the entire world will be handled by the user-base.

Jessica Mulligan, presented a paper adequately entitled "Citizens Against The Gods". She spoke about the reasons why users are disgruntled about their games. One main point was that the online environment is inhabited by three types of people: Citizens, Tribesmen, and Barbarians. Most of the vocal protests comes from the minority of "citizens", people who go to forums and make their opinion heard. The reasons for those protests are things like poor management, "Garbage in garbage out" design, short-term profit-driven mentality, the instant gratification syndrome, and particularly no respect for the paying customer.

Second Life Development session:
This was actually a bit disappointing session, perhaps because some of the technology failed. There were some particularly enlightening issues raised. For example, Chris Carella from developers Electric Sheep mentioned that the successful SL development has to operate like all other media, you have to keep innovating and providing new events and content for your subscriber base.

I finish with the most mind-blowing thing I saw in the Festival, check out this video (high-res version here).

The end of SCO?

(via Groklaw and Nicolas Jondet) Those not familiar with the SCO v IBM case, you can find some basic information here. Last week Groklaw reported on a ruling that single-handedly dismantled SCO's copyrights claims. SCO based their suit almost entirely on the assumption that they owned rights over UNIX code, which has been ruled out. Novell owns the UNIX code, end of story.

But now SCO is in trouble. It has been the belief of many following the case that SCO was playing the stock market, as after their original complaint back in 2003 their shares rose meteorically in the market. Now their investors are abandoning the company in droves, as the stock's only appeal was the potential of a victory against IBM. For those who also believe that this has been funded by a certain Redmond company, this will certainly seem like a pie in their face.

I feel like resurrecting the idea of writing that SCO v IBM paper. So many ideas, so little time.

Edinburgh Interactive Festival

As part of my growing interest in games (from a research point of view of course), I have decided to make the Edinburgh Interactive Festival my one and only August Fringe event this year. This conference is mostly directed towards games industry insiders, but it is quite an amazing insight into the games business, even if I feel like the odd academic in the room. I'm also attending State of Play in Singapore later in the month to continue with the gaming-heavy research plan. After the introduction we had to vote with one of those networked voting systems. According to the audience, MMOG's and virtual worlds are set to be the fastest growing game sectors next year. Anyway, here are my highlights from Day 1:

Yves Guillemot from Ubisoft. There were plenty of mentions to IP-related subjects here. There are plans in the industry to reduce creation costs by increasing content tie-ins, even by creating books, movies and games at the same time. I found this rather depressing as movie-based games tend to range from poor to mediocre. Games work better when they feature original content, not rehashed licensed characters. There was a lot of talk about user-generated content, and how Ubisoft is trying to move into it, but there was little mention of who owns that content!

Hilmar Petursson from EVE Online. This was my favourite presentation of the day, with plenty of food for thought for someone who is interested in issues beyond mere development. I've always heard good things about EVE, and it seems like the game is well thought out, with an excellent ethos. Something that came across quite strongly was that EVE is not a product, but a service. From the start they did not sell CDs because their publishing rights deal fell through. Launched in 2003, they began to think differently about online distribution and direct download models, which is how the industry operates at present. Their player base has been growing linearly, in contrast with most other MMOs, which eventually hit a maximum and then subscriptions drop. Then there was an interesting comparison of the two types of MMOs, the Themepark and the Playground. The later is big, flashy, full of crowds, all the rides are set for you and it's fun (WoW). The former is an open-ended space which allows users to explore and create at their leisure (EVE). The presentation finished with an exploration of the many social, governance, economic and regulatory implications of the game. I was delighted to hear that EVE Online now employs a full-time economist to conduct research and analyse the economical underpinnings of the game. There was a mention that there are considerable governance issues with a game that operates in a devolved laissez-faire environment. With 200,000 players, and some very large alliances and corporations, this is a game almost tailor-made to explore social organisation, emerging markets and self-regulation.

The other session I enjoyed was Games, Actually, about pulling more women into the gaming market. Out of 148 million females in the UK, France, Spain, Germany and Italy, 28 million had purchased a game. Depending on this definition, 24% to 46% of gamers are women (but I did not like their definitions). Females are now spending more on games. Girls hate violent games, and The Sims is big with females. A quote from some research conducted, "You have €60 to spend, and you could spend it on games or shoes, what are you going to do?"

There was also Edge's Game Awards, but I did not care enough about the games involved to pay a lot of attention.

Shallow comments: If I were to name this event, I would call it one of the following: The Tie Is Dead; The Ponytail Lives!; or Goths Dig Games.

Universal to trial DRM-free music

Universal will follow EMI's successful experiment with DRM-less music, but it will not be sold in iTunes Plus (which sort of defeats the purpose, but I digress). This comes as no surprise, as it seems like EMI is very happy with its DRM-free sales. Amazon has also invested in AmieStreet, a website that sells unprotected music at tiered pricing.

I may be gloating here, but the story of TPMs is a chronicle of a death foretold. You cannot lock away content using technologies that restrict users' abilities to play their purchased material as they wish, and then expect that they will sit around and not try to tinker with the technology. Smart business models that offer choice and empower the consumer will always prevail.

Government should act on cybercrime

The BBC reports that the House of Lords Science and Technology Select Committee has issued a paper prompting the government to take tougher action against cybercrime. It is refreshing to see a policy-making body taking the problem seriously, as lack of enforcement has been a problem in the past.

One of the most important points of the report is that it nails the issue of personal internet security as one that should be treated as crime in general. The problem so far is that regulators have left the bulk of the responsibility for Internet security to the end-user: install anti-virus, firewall and keep your computer updated at all times. However, some of the responsibility for keeping the Internet secure should go to the government. The report recommends:

"The current emphasis of Government and policy-makers upon enduser responsibility for security bears little relation either to the capabilities of many individuals or to the changing nature of the technology and the risk. It is time for Government to develop a more holistic understanding of the distributed responsibility for personal Internet security. This may well require reduced adherence to the “end-to-end principle”, in such a way as to reflect the reality of the mass market in Internet services."

Let us hope that this measured and well-informed report prompts some action.

Facebook sued for patent infringement

Facebook is being sued for patent infringement by venture capital firm Cross Atlantic Capital Partners, which seems to be the latest in a wave of investors involved in financing patent troll litigation. The plaintiffs are asking for licensing fees.

The subject of the suit is U.S. patent 6,519,629, which protects a "System for creating a community for users with common interests to interact in". The application was filed in 2001 and the patent issued in 2003. The abstract reads:

"An Information and Application Distribution System (IADS) is disclosed. The IADS operates, in one embodiment, to distribute, initiate and allow interaction and communication within like-minded communities. Application distribution occurs through the transmission and receipt of an "invitation application" which contains both a message component and an executable component to enable multiple users to connect within a specific community. The application object includes functionality which allows the user's local computer to automatically set up a user interface to connect with a central controller which facilitates interaction and introduction between and among users."

I cannot even begin to convey my utter amazement that such broad patents are ever issued by the USPTO. This "invention" seems nothing other than an automated system to invite people into groups, a technology that was not even new in 1997, let alone 2001. Yahoo Groups has been around before, and could have been cited as prior art. Heck, even Usenet would be infringing this patent!

I love the types of technology covered by this broad patent. The technologies and applications that would be infringing are:

• chat application object: Messenger, AIM
  
• a white board application object: Facebook
  
• a shopping cart application object: Amazon
  
• a photo album application object: Flickr
  
• a store application object: eBay
  
• a voice and/or video conferencing application object: Skype
  
• a pals application object: Myspace
  

Must go and vent my anger somewhere. Perhaps a violent game of Tetris will do.

New copyleft ruling in Spain

One more case in the ongoing battle in Spain between SGAE and small bars over copyleft music. Derecho de Internet reports on this latest appeal by the SGAE against a bar in Madrid called "Buenavistilla Social Club". The collecting society initially lost the case and therefore appealed to have the ruling reversed. In the latest sentence, the court argued that evidence presented by the defendants indicated that the locale played alternative music, also known as "música libre" or copyleft, and therefore dismissed the appeal and allowed the initial ruling to stand.

There are two interesting points made by the decision. The first is that apparently the court was swayed by the fact that the bar in question was not a commercial venture, but was part of a non-profit organisation which held social and cultural events in the venue, which leads one to believe that this may prove to be a useful distinction to make in future cases. The second element is the growing sophistication of Spanish judges with regards to copyleft and other alternative licensing concepts. The ruling states:

"With the copyleft clause the owner allows, through a general public licence, the transformation or modification of his/her work, placing an obligation on the responsible for the modified work to make it available to the public under the same conditions, that is, allowing its free access and its adaptation. With Creative Commons licences, the rights-holder reserves his/her right for commercial exploitation, and can even forbid adoptions of the work. Therefore, one must distinguish between Creative Commons licences and the copyleft clause. There will be some Creative Commons licences which include a copyleft clause." (translation mine)

This is very accurate depiction of the nuances in the licensing models, and to my mind it shows that judges in Spain grok the concepts involved. I am heartened by the fact that Civil Law jurisdictions seem to be at the forefront of open licence and copyleft litigation, as evidenced by the many positive results for open source and open content in the Netherlands, Germany and Spain. If we also consider the rulings in France and Finland with regards to DRM, and some of the English cases with regards to software patents, I would like to put forward that Europe is experiencing a resurgence in progressive court decisions in Cyberlaw.

But what do we know, everyone knows that Europe is filled with pinko-commie liberals...

New survey on open content licences

Colleague and friend Jordan Hatcher has requested me to reproduce this notice.

Use of open content licences by cultural heritage organisations

The Eduserv Foundation is funding a study into the use of Creative Archive, Creative Commons and similar open content licences by cultural heritage organisations in the United Kingdom. The study is being led by legal consultant Jordan Hatcher of opencontentlawyer.com. The survey is available here:

https://www.surveymonkey.com/s.aspx?sm=L3x_2b1lQJxqu7KdfK587AeA_3d_3d

This survey is open to UK-based cultural heritage organisations such as museums, libraries, galleries, archives, film and video organisations, broadcasters, and other organisations that conduct cultural heritage activities.

The goal of this study is to provide information on the actual use of Creative Archive, Creative Commons, and similar licences. This information will be useful to decision makers and interested professionals in the cultural heritage sector, and for local and national government and the HE and FE sector. The study will be conducted from now through to the middle of September and a report will be made available in October.

If you are a member of a cultural heritage organisation, whether or not you currently use Creative Commons or Creative Archive licences (or even know what they are!), your participation is needed to make this study a success.

Again, the survey is available at:
https://www.surveymonkey.com/s.aspx?sm=L3x_2b1lQJxqu7KdfK587AeA_3d_3d

iPod Shuffle giveaway
As a bonus for completing the survey, respondents will get the chance to enter a drawer to win one of three iPod Shuffles that come pre-loaded with music! See the survey for full details.

More about the project

You can learn more about the project and read the original research proposal at our homepage:

http://www.eduserv.org.uk/foundation/studies/cc2007

If you would like to take part via post or telephone, or are interested in finding out more about the study, please contact Ed Barker and Jordan Hatcher at

cc-study@eduserv.org.uk
--or--
phone +44 (0) 125 474328

GikII 2 programme available

Those interested in the GikII 2 (pronounced geeky) workshop, which will take place on September 19 at UCL, London, will be delighted to know that the provisional programme is now online. Yours Truly will present a paper entitled “From Zero to Hero: Building a New Virtual Economy”.

Those of you who do not care at all or do not know what GikII is, please ignore this post.

Empty Life

Yes, I know I am coming across as a curmudgeonly harbinger of doom, but I've just read an excellent article on Wired on actual traffic numbers for Second Life. To quote from the article:

"Once you put in several hours flailing around learning how to function in Second Life, there isn't much to do. That may explain why more than 85 percent of the avatars created have been abandoned. Linden's in-world traffic tally, which factors in both the number of visitors and time spent, shows that the big draws for those who do return are free money and kinky sex. On a random day in June, the most popular location was Money Island (where Linden dollars, the official currency, are given away gratis), with a score of 136,000. Sexy Beach, one of several regions that offer virtual sex shops, dancing, and no-strings hookups, came in at 133,000. The Sears store on IBM's Innovation Island had a traffic score of 281; Coke's Virtual Thirst pavilion, a mere 27. And even when corporate destinations actually draw people, the PR can be less than ideal."

Why does it always comes down to online sex? (that was an unfortunate choice of words, but I digress) Anyway, Chris Anderson has also been complaining about his disappointment with the virtual world. For a counter argument, read GigaOM's list of SL myths.

I have made my opinion clear many times, I happen to agree that SL is over-hyped. As someone used to much better looking virtual worlds, SL's clunky technology, illogical interface and dated 3D engine are an immediate turn-off. The concept is good, but I think that unless SL banks on its brand and starts from scratch with a new engine, the world will continue to remain empty.

iTunes sells, Eminem sues

It has been a mixed week for iTunes. Earlier this week it was reported that the site has hit 3 billion downloads, and it is now the 3rd largest music retailer in the United States, ahead of the likes of Amazon. But now the BBC reports on a suit initiated by rapper Eminem against Apple for copyright infringement, alleging that the company makes his songs available to the public through iTunes without his permission.

If the case is not settled out of court, this could prove to be a landmark litigation. Music publishing and distribution agreements are famously complex legal matter, filled with tortuous clauses that try to foresee any eventuality. For average artists, the agreements involve a record label (nowadays likely to be a subsidiary of a large media conglomerate), the publishers and the distributors and retailers. Digital retailers like Apple have existing agreements with publishers in which they are licensed to distribute the work through iTunes.

The problem in this case seems to be that Eminem operates outside of the normal channels. He still releases his records (or more accurately, released) through an independent record label called Eight Mile Style. In the analogue economy of bricks, mortar and limited shelve space, such small labels need the complex distribution chains available to the corporations, so they will usually have an agreement with a publisher or distributor in order to get their product to the stores; in this particular case Eight Mile Style has a distribution agreement with Universal Music. However, in the digital realm of the long tail, such arrangements are not required because popular artists like Eminem can effectively cut out the middle person and deal directly with the retailer. In their complaint, the plaintiffs argue that Apple currently sells the music based on their existing agreement with Universal, but that they have never allowed Universal to licence their works to Apple. This is an extremely interesting claim, I'm curious to read the current publishing agreement between Eight Mile Style and Universal to see if this is correct.

This could have huge repercussions throughout the industry, as it would be possible for artists to obtain more per download.