Who let the IP dogs out?

Meet Flo and Lucky, two dogs hounding out piracy from Malaysia's borders. These two black Labradors are part of Operation Double Trouble (now, there's a name destined for film fame). This operation is funded by the Motion Picture Association, which invested $17,000 USD to have the dogs trained in Northern Ireland and then sent to work in Malaysia's cargo ports and border crossings. The dogs have been hugely successful, their noses have led to 13 arrests and the confiscation of 1.3 million pirated DVDs. Nevertheless, success has been hard on these IP hounds, crime syndicates are offering $29,000 USD to whoever can get their paws on our canine heroes, they must be barking mad! (apologies for the gratuitous dog-related puns).

However, the highlight of the article is this gem:

The MPA’s senior vice president and Asia-Pacific regional director, Mike Ellis, highlighted the discovery in recent raids of child pornography alongside pirated movies. “Piracy is frequently linked to other insidious activities,” he said. “Consumers should be aware that their purchases of pirated movies fund the ongoing illegal operations of the movie pirates, who may also be profiting from the distribution of child pornography."

From IP to child pornography in one quote. Nicely done.

Second Life bans gambling

(via net.wars) The official Second Life blog has announced that it will ban gambling from the popular virtual world. The new policy bans all games of chance through random-number generators that provide a payout in Linden dollars or any real life currency. This includes all sorts of casino games (such as poker, Blackjack and Roulette), but also covers sports betting "including the placing of bets on actual sporting events against a book-maker or through a betting exchange".

Why this ban? For those unfamiliar with recent events in the United States, the Bush Administration has declared War on Online Gambling through the Security and Accountability For Every Port Act of 2006 (SAFE Port Act, those Americans sure know how to get cool acronyms into their legislation, huh?) You may be wondering about the name, right? You see, the Act deals with port security AND Internet gambling because, well, because, err... you got me there. What better way to pass legislation that erodes civil liberties than to marry it with legislation that deals with the War on Terror? You're either with us or against us, if you support online gambling you also support the terrorists, they all hate our freedoms; you know the rhetoric. But I digress...

This is a deeply troubling move by Second Life for so many reasons. Firstly, let me say that I have never gambled online, and I do not intend to do so. The extent of my gambling is to go once a year to a casino in Costa Rica to lose whatever I bet (I'm just unlucky that way). Moreover, I do not intend to ever gamble in Second Life (my contempt for that online world is well documented). However, I find this regulatory action by Linden Labs as an extremely worrying trend. So, the current American administration has a problem with online gambling? Good for them. But why should such an action be transferred to an online world inhabited by people from all over the world? This is regulatory action that goes beyond anything that exists in the law, and also exports a model to the rest of us.

I understand that Linden Labs are trying to reduce their liabilities, but to do so by banning activities that are legal almost everywhere else in the world is a vastly worrying development. We should all be concerned about private actions that have such extensive regulatory consequences.

ConnectU v Facebook

It seems to be social network week here at TechnoLlama.

There have been some interesting developments in the ongoing case ConnectU v Facebook (not to be confused with Facebook v ConnectU). ConnectU is yet another social networking site from three Harvard graduates, brothers Cameron and Tyler Winklevoss, and Divya Narendra. The plaintiffs are suing Facebook founder Mark Zuckerberg for, amongst other things, copyright infringement, breach of contract, and misappropriation of trade secrets. In their original complaint, the plaintiffs argue that in January 2004 they hired Zuckerberg to write some code for their social networking site, which had the novel idea to connect Harvard college students to one another, with the initial name Harvard Connections ... sounds familiar, right? ConnectU founders claim that they gave Zuckerberg unlimited access to their business model and ideas, while stressing the need to have as early launch as possible, as there was a narrow market gap.

While allegedly working on the code, Zuckerberg had also been working on Facebook. A company was formed in April 2004 and the actual site launched 3 months before ConnectU. The rest is history as they say. Only one fact appears to be clear, Zuckerberg did not contribute code to ConnectU. However, this is where the facts become blurred, ConnectU claim that Zuckerberg took code from ConnectU and used it on Facebook. The problem here is one of knowing who to believe, as there appears to be little or no documentary evidence on the murky early days of ConnectU. The judge will then have to decide based on some unreliable testimony. And now, the judge has ruled that he's had enough with the dodgy contract claims by ConnectU.

There are some straightforward legal questions here:

• Was Zuckerberg under a contract? Unlikely.
• Was there a non-disclosure agreement? Unlikely again.
  
• Is there copyright protection over the social networking idea? No, at best there could be a business method claim, if ConnectU had bothered to file a patent application.
• If it is proven that Zuckerberg took some code from ConnectU, would there be a copyright infringement case? Possibly yes, depends on how much code was copied.

Interesting case, and I think that there is something dodgy going on here. The legal case against Facebook may be weak, but there seems to be something morally wrong in Zuckerberg's alleged actions.

Update: For the people in this Facebook group, no they are not shutting down Facebook. Even if Zuckerberg lost (which I find extremely unlikely), the worst that may happen is that Facebook will have to pay some large amount of money to ConnectU.

2nd Update: Reading the relief request again, the plaintiffs request an injunction not to allow the defendants to operate facebook.com. Even if the judge granted the injunction, (again, highly unlikely), Facebook could still operate, just not by its current operators.

3rd update: Those interested in following the case can do so here. At the moment the judge has reserved ruling on all the motions to dismiss, which does not bode well for the plaintiffs. Were I a betting man, I would say that this case has only two weeks left.

4th update: ConnectU has just filed (August 8) an amended complaint and offered more evidence.

Sex offenders banned from MySpace

The idea that the Internet is filled with sexual predators has received a boost as MySpace has admitted to having found and removed 29,000 registered sex offenders on its site. The admission comes amongst attempts by North Carolina's Attorney General to change the law so that social networking sites require parental permission when a minor tries to open an account.

While I understand the potential dangers of grooming, and I must admit at being surprised by the large numbers of convicted sexual offenders online, I always take these stories with scepticism. Actual figures are difficult to come by, but it seems like grooming is usually over-estimated. For example, in a period between 2004 and 2005, a study found that the Sexual Offences Act 2003, which was created specifically to tackle online grooming, had been applied only 8 times (with no convictions). While there is danger, I always feel that this issue invokes moral panic rather than actual statistical threat.

I am also rather worried about what seems to be a threat to civil liberties here. Should all convicted sex offenders be banned from all web spaces where they may interact with minors? This is a legitimate regulatory question that has not been answered properly. Actions like that taken by MySpace indicate that industry is prepared to act in order to avoid bad press, which generates a de facto market regulatory response that goes beyond anything required by law. One could argue that those who have been involved in some sort of sexual offence in the past have relinquished their rights to have a normal online presence, just as they have relinquished their right to work with children in other jobs, such as teaching, but should it really?

I believe that if society wishes to place such restrictions, then it should be up to legislators to make it into law instead of relying on fickle market forces.

Update: This story has been quoted in Business Week.

Are you the real online you?

The mainstream press has discovered Web 2.0. Here is an interesting piece in the BBC about what they claim is a growing phenomenon amongst busy people, hiring someone to attend your online presence via blogs and social networking. To be honest, I found the premise for the article rather thin, "a friend of a friend claims to pay someone to maintain his blog entries". You know, a friend of a friend claims to have met aliens from the Orion belt...

Nevertheless, I can see the potential allure in such a notion. As a fierce Web 2.0 warrior, I have first-hand experience in the amount of effort required to maintain a continuous web presence. I can see how very busy people would like to maintain the semblance of communication, but would not have time to do it. The legalities of such actions are not problematic whatsoever, a simple work-for-hire scheme, an employment contract no different from an assistant writing letters for his boss.

Then again, how do you know that I'm really me? *cue eerie Twilight Zone music*

The Internet IS a series of tubes

(via BoingBoing) This is an amazing image charting the Web As We Know It (circa 2007), using the Tokyo underground as a reference. There are some interesting relations implied in the chart, for example, PirateBay is listed as one of the main sites, just as LastFM, YouTube, CraigList and OpenID, which seems to make some sense, but that means that it shares that line with Yahoo, Google, MSN and eBay. Microsoft shares the technology line with PayPal, Adobe, WordPress and Apple. Some others are baffling, why is About.com between Wikipedia and Apple in the Knowhow line? Why is YouTube in the Knowhow as well?

Update: Talking about neat graphical representations, here is a Periodic Table of the Internet.

Synthetic lifeforms and patenting

Last week I was reading New Scientist (as you do), and I came across an extremely interesting article on the race to produce synthetic life. The article claims that scientists are on the verge of producing an entirely new type of life from scratch, a prospect that scares the bejeebus out of me. Don't these evil scientists know that tampering with life always results in nefarious results?

Events have been building rapidly in the synthetic front. Researchers built a small basic genome from scratch and managed to implant it into an existing cell, which everyone agrees is one of the precursors for creating an artificial lifeform. Another team has managed to build an artificial cell-like self-assembling sphere, where the genome could be implanted. If developments continue to move at the same pace, we could have fully and unequivocal artificial life in the next few years. We will have become like gods and all that.

The interest for intellectual property is quite obvious. Large amount of research money is going into this field as a result of the patenting potential of said artificial beasties. Craig Venter, one of the people involved in the research, has been in the news for filing patent applications for his synthetic genomes. The argument goes that this is just another invention, and whether it self-replicates is irrelevant for its novelty. An invention is an invention and it should be patented.

Colleague Gerard Porter has directed me to a very interesting response to these developments from Arti Rai and James Boyle. They comment that the nascent field is already filled with overly-broad patents that could stifle further research. The authors believe that some efforts like the MIT Registry of Standard Biological Parts could be used to solve potential patent clogs in the future, a view that I wholeheartedly share.

Caught on Facebook

The Times Online reports on the use of Facebook to enforce some of Oxford University's strict regulations on post-exam celebrations. I have it on good authority that students post pictures of drunken shenanigans on Facebook, some of which fall foul of existing rules. Staff have used those pictures to warn and discipline students. My favourite part of the article is this:

"Alex Hill, 21, a maths and philosophy student, received an e-mail stating that three of her photos provided evidence that she had engaged in “disorderly” conduct. “I don’t know how the proctors got access to it,” the St Hugh’s College student said. “I thought my privacy settings were such that only students could see my pictures."

There's the problem, you see? People assume that Facebook's privacy settings offer some form of security blanket, but they do not. People have already lost their job because of failing to understand that simple fact. There are many problems with thinking that what happens on Facebook stays on Facebook. This line of arguments ignores the very simple truth about information in digital environments; paraphrasing the Replicator Technology Principle, once something has been digitised, copies of it can and will be made. Those drunken pictures are one forward button away from dissemination. Similarly, what is to say that those proctors are not listed as students as well? Interestingly, when I became part of Facebook, it did not assume that I was a member of staff, it assumed I was a student. There is also the assumption that the large list of friends who has access to all your personal details will always behave as "friends". The problem of course, is that the use of the word "friend" hides the fact that most of those on the list are at best acquaintances. And the last in the chain is Facebook itself. Will they always play nice with the very vast amount of sensitive personal data they hold? Forgive me if I declare scepticism on that.

Seems like the student union is not happy about the development:

"The students are livid that their online world is being gatecrashed. Martin McCluskey, president of Oxford University Student Union, said: “While we do not condone unruly, violent or disorderly behaviour, we believe that the university’s use of private photos from the Facebook site in disciplinary procedures is disgraceful."

Private photos? Posting pictures in a social network site does not precisely mean the pictures are private. Anyway, I have mentioned before that I have a love/hate relationship with social networking. I think it's a great idea, but I'm baffled by the liberty with which people treat their personal data. My view of online privacy is quite simple. There isn't any. Anything that I have ever done and written online is stored somewhere, and it can be traced. Failing to understand that simple fact is asking for trouble.

Update: Seems like this story has legs. There are excellent posts from panGloss and Collected Voices, and lively commentary at The Guardian's Organ Grinder.

Software patent debate? No thank you, says EPO

There are many of us interested in the software patent debate, but the EPO seems not to be one of those. The EPO held a one-day conference attended by parliamentarians, industry, NGO and experts to discuss what has happened since the dismissal of the Computer Implemented Inventions Directive two years ago (2 years? How time flies!) The consensus in the conference was that the debate will not be re-opened, and that there is no need for more legislation, or to resurrect the failed Directive. The efforts should go towards better patent quality and patentability, and perhaps even to sort out the messy case law.

Indeed, case law has been rather messy in this area. After Jacob's controversial decision in Aerotel, there has been a case by the EPO Board of Appeals (T 0154/04) which refuses to answer the questions posed in the Aerotel ruling (more discussion about this in IPKat and IP::JUR). At the moment there are clearly two ways of dealing with software patents in European cases: firstly is the "technical effect scepticism" present in recent UK-based cases and exemplified by Aerotel. Then there is "technical effect purism" present in EPO Board of Appeals decisions, where they have directly criticised Jacob's interpretation of European Patent Convention (which is rich coming from them, as technical effect has no basis in the EPC whatsoever).

We are left then with a rather clouded picture. It seems like we are in for a continued court battle, the balls are in the air and it seems like if you want to litigate in this area, the decision will depend on the forum.

Nevertheless, I think that some industry players are beginning to understand that software patents were not such a great idea to begin with. IBM continues to be at the forefront of this practice. Yes, they are the ones who apply for and obtain more software patents, but they are also continuously making efforts to project an image of usefulness. IBM has recently announced that it will “perpetual and universal access” to more that 150 software standard patents. This move is incredibly important because standards are what allow interoperability between devices and software. If a company owns a patent over a standard, it will be able to stifle innovation in that area, or to charge licence fees for others wanting to interact with that technology. by opening these basic patents, IBM will allow further interoperability and innovation in those areas in which it holds patents, a wise commercial move in my opinion.

Virgin Australia using Creative Commons content

(via Rebecca Kahn) The Icommons mailing list has been discussing another potential Creative Commons enforcement case, this time in Australia. Virgin Mobile Australia has started an advertising campaign called "Are you with us or what?", which has been collecting images from Flickr released under a CC-BY licence, which allows commercial re-use and modification of the licensed work. The images contain comments which could be construed as being insulting and derogatory, as the one displayed here. Needless to say, this has angered some people (displaying my penchant for understatement once again). How dare Virgin Mobile misuse CC licences in such way? Some bloggers have placed the fault squarely in Creative Commons' lap, as they argue that this campaign's subjects were not made to sign model release forms, which I guess is the manner in which Australian modelling agencies deal with image and personality rights.

There is plenty to discuss here. It is true that Creative Commons does not deal in any way with image and/or personality rights. As many pointed out in the mailing list discussion (nod to Andrew Rens), Creative Commons offers copyright licences that do not deal with other areas of the law. While image rights are not something I know a lot about, it is clear that this is an area dealt separately by other type of legislation. One cannot expect the thousands of people uploading images into Flickr and Facebook to ask their subjects for model release forms, or any such nonsense.

It seems like Virgin may be safe in this case with regards to copyright claims, as the images contain a small link to the original photo stream (for example, the one pictured above can be found here). However, there are some other licence elements in which Virgin may be in breach of the terms and conditions. It was also mentioned in the list discussion (nod to Herkko Hietanen) that there is an obligation to place a copy or link to the licence on any modified works, which is not done here. I would also argue that the resulting campaign is being released as a Flash animation, which may (or may not) fall foul of the restrictions against technological protection measures.

Similarly, I believe that Virgin is not exempt of misuse of the subject's other rights. I believe that in Europe there could be a case to be made with regards to Data Protection as the pictures could be used to identify the data subject. It is also clear that the captions could be considered defamatory and/or derogatory, which could be litigated regardless of the copyright case. And there is of course the right of image, wherever that may exist.

While a lot of people oppose non-commercial clauses in Creative Commons, I must say that it is cases like the one I'm describing which proves the point of the popularity of such licence elements. There is now a Flickr group dedicated to collecting the images used in the campaign. One of the comments left in the group's message board pretty much sums it up: "ooh, that sucks. :/ I switched my license a while ago to no commercial use. Glad I did!"

Freedom advocates, take note.

SCRIPT-ed books for review

SCRIPT-ed is looking for reviewers for three books. These are:

• Roger Cullis, Patents, Inventions and the Dynamics of Innovation: A Multidisciplinary Study.
• Charlotte Waelde, Hector MacQueen (eds), Intellectual Property: The Many Faces of the Public Domain.
• Tarleton Gillespie, Wired Shut: Copyright and the Shape of Digital Culture.

If you're interested, please email Wiebke Abel, our Books Review editor.

Virtual lawsuits

Internet news websites have been commenting on a copyright infringement case involving sex toys in Second Life. With spectacular titles like "Sex Toy IP Scandal Rocks Second Life", one would imagine thousands of depressed avatars shocked by the news of a lawsuit involving sex toys. The lawsuit involves something called the "Eros SexGen Platinum Base Unit", a sex toy that only works in Second Life (at this point my imagination decides to take a coffee break). Kevin Alderman, inventor and CEO of the company "making" such devices, has filed a copyright infringement suit in the U.S. District Court in Tampa, against a virtual persona called "Volkov Catteneo", who is apparently selling similar devices.

I will resist the temptation to hypothesise about the type of people who: a) would invent sex toys for exclusive use in a virtual world; b) sell them; c) buy them; d) care enough about the fate of their sex toy to sue someone else for alleged infringement of said device.

Despite the mirth-inducing elements of the suit (and let's face it, this story has "comedy value" written all over it), there could be some interesting legal elements to this. Firstly, there is the copyright claim itself, as I do not envy the judge who will have to decide on the originality of virtual sex devices; perhaps there are not many ways in which one can invent a pixelated toy, I guess that it would depend on the function (there goes my imagination again!) Secondly, what are the implications of suing an avatar? I'm aware that the avatar is just a way to represent a person who will be identified at a later date, but I still find it interesting that the Second Life nickname is the one present on the legal documents.

Alt Text has some great commentary about potential future lawsuits. My favourite is:

"Douglas Anders of Bellefontaine, Ohio, files suit against Thanatog, a warlock from Goldshire, Elwynn Forest, Azeroth, Bloodhoof Server. The suit alleges that "the defendant did knowingly and willfully, without lawful authority, aggro about 30 goblins in the Deadmines, preventing plaintiff from finishing the instance and retrieving the Cape of the Brotherhood, causing mental anguish and loss of wages..."

Given some recent developments, that is not so far-fetched after all...

Update: Ray Corrigan pointed out that I had a Freudian slip, calling it "Second Lice"... nice catch, I think that I may keep calling it that :)

Knock-off Nigel

I guess I'm not the only person to have noticed the ridiculously over-the-top anti-piracy commercials in cinemas. Besides 'Knock-off Nigel', there's the utterly awful crime ad. You know, because pirates are also drug-dealers, arms tradesmen and people smugglers.

CAFTA declared constitutional in Costa Rica

Those following free trade agreements and TRIPS-plus agreements will be familiar with the tortuous approval process of the Dominican Republic and Central American Free Trade Agreement in Costa Rica (DR-CAFTA). While all other signatory states have already approved the agreement, Costa Rica is still in the process of passing it into law due to heavy political opposition. The opposition has been such that President Oscar Arias signed an executive decision allowing a referendum to take place in October 2007 (Decreto del Poder Ejecutivo 33.717 MP).

The Costa Rican press has been reporting on the unconstitutionality action brought by the Defensoría de los Habitantes (a citizen ombudsman), and 17 legislators from several opposition parties. The argument is that the existing text in CAFTA violates several constitutional norms, particularly with regards to the opening of the telecommunications market. The Costa Rican Constitutional Court (Sala IV) has voted to uphold the constitutionality of the agreement 5 votes in favour and 2 against (2007-09469). The Court's reasoning has not been published yet, but the vote has been made available by the press. I will write a brief outline of the analysis as soon as it is published, as this may prove to be an extremely important and historic decision.

This ruling will green-light the referendum. The YES camp is consistently ahead in the polls, with roughly 50% of the voting population in favour of its approval.

Cybercrime pays... in the UK

I think we could all agree that cybercrime is a growing threat. Online fraud, phishing, viruses, hacking, DDoS, and spam, consumer are increasingly at risk from online security vulnerabilities that could translate in financial loss. What is the UK's response to the threat? "Call your bank".

The Guardian carries a story today on the UK's enforcement reply to cybercrime. Back in April the Association of Chief Police Officers announced that it would not be dealing with financial fraud conducted online, and that enforcement and reporting would have to go to the financial institution directly. The argument behind such move is that apparently, the banking industry is responsible by having credit cards in the first place. Yes, and the copyright industries are responsible for infringement by having music and movies. Lamest excuse for failure to regulate evah!

I'm literally loss for words. It seems like the Luddites have taken over and have decided that there is a vast section of criminal behaviour not worth pursuing. Let the private enterprises handle it! I guess that the only way in which some of these people will notice the Interweb is if they hear that there is cannabis being sold somewhere, or simply utter the word "pedofile" (misspelt on purpose because the correct spelling seems to attract some strange people to the comments section). While online fraud goes unpunished, the only hacker who has seen the sharp end of the law is Mr Gary McKinnon, guilty of hacking into NASA servers looking for aliens. You can get away with stealing credit card numbers, but Buddha forbid you are into aliens. Off to jail for 80 years you go.

2nd rant in two days, must need a holiday.

Wikipedian protesters

(via Luke Razzell) Talking about problems with Wikipedia...

Wikiality

Wikipedia is great. However, as a sometimes editor, I'm starting to grow tired of getting involved in endless editing wars with people who are not experts on the subjects. If you don't like a rant, look away now.

I'm perfectly happy with people editing and disagreeing on all sort of subjects in which I may not be well-versed. For example, if I decide to edit an article on Naruto characters, I would be happy for someone else to stamp their anime expertise and authority over mine. However, I have started to realise that there are articles zealously policed by wiki-obsessives who do not want any changes to their pet subjects. I recently experienced this (I won't specify where, as the battle is still being waged), where a specific editor has decided unilaterally that his definition of a criminal offence is the only one possible, and has precluded all other interpretations of that opinion, although it is clear that he lacks the legal credentials to make the distinction.

I am all in favour of the vibrant and democratic nature of the Internet, but this characteristic should not herald the end of specialised knowledge and expertise. There is something positive about an environment that fosters the free examination and discussion of ideas, but to kill-off the expert is to enter a parallel reality where there are no truths and all opinions have the same weight. This is, I believe, what has allowed patently untrue memes such as global warming denialism and creationism to survive. When a home-schooled teenager from Nebraska feels that he has the same right to talk about evolution than an experienced biologist, then there is something wrong with the way in which we look at knowledge. Do not get me wrong, if I am wrong and a pimply teenager from Nebraska points it out to me, I will still be as wrong as if it was pointed out by a peer. However, experience and expertise count for something. I would not want an amateur to operate on me, so why would anyone wish to get legal opinions from amateurs?

Rant over. I'm now off to Wikipedia to wage a guerilla war against the home-schooled pimply teenagers of the world.

Creative Commons licence statistics

The Creative Commons blog has published some of the latest licence usage statistics. Mike Linksvayer and Giorgios Cheliotis have made public some of the statistics presented at the iSummit, which provide a lot of tasty food for thought for licence geeks everywhere.

The data comes with a lot of caveats, particularly because there is a large discrepancy of results depending on the search engine used. Google produces results that seem excessively high, while Yahoo's seem low. One of the ways in which one can get some reliable data is to use site-specific statistics: there are 38.7 million images in Flickr released under a CC licence alone. Still, one of the results that can be seen across the board is the licence distribution. As was the case with previous statistical data, the most restrictive licences are undoubtedly the most popular ones, as seen in the graphic below:

(click to enlarge)

This may come as a surprise to some who advocate the use of less restrictive "free" licences, but I think that it makes a lot of sense. Most people (myself included) have no problems with wide non-commercial dissemination of their data, but there seems to be something unfair in someone profiting from your work when you have decided to make it available to the public.

Kudos to Mike and Giorgios for the excellent data, it is time to start getting to grips with it and we should analyse its implications.