ECJ strikes balance between IP and data protection

(via Cedric Manara) The European Court of Justice has decided on a case in which it calls for a balance to be struck between intellectual property rights and the protection of personal data. Enter Case C-275/06, Productores de Música de España v Telefónica de España. This is your average P2P downloads privacy case, pitting ISPs against the music industry. The question in these cases is usually the same: should ISPs disclose personal data when dealt with a request by a content provider? It is easy to find out the ISP where a file-sharer is connected, so most P2P enforcement cases fall into the issues of privacy and data protection.

This particular case is no different, Promusicae is a collective association of Spanish musicians, which initiated civil procedures against Spanish ISP Telefónica in order to obtain the identity of users sharing music through KaZaA. The court in first instance granted the request, but Telefónica appealed on the grounds that data protection law does not present an exception on the disclosure of personal data for civil cases, only for criminal proceedings. This is what makes this case so important in my opinion, the EU has in place directives dealing both with copyright and data protection. When confronted with a conflict, what should national courts do?

There are two directives in conflict, Privacy on Electronic Communications (2002/58) and Copyright (2000/31). The court first tackles privacy and data protection, and claims that the directive "does not preclude the possibility for the Member States of laying down an obligation to disclose personal data in the context of civil proceedings." Then the Court tackles copyright directive, and concludes that none of the IP directives "require the Member States to lay down, in order to ensure effective protection of copyright, an obligation to communicate personal data in the context of civil proceedings."

Therefore the Court is compelled to issue a balance. EU law does not require the Member States, in order to ensure the effective protection of copyright, to lay down an obligation to disclose personal data in the context of civil proceedings. The Court's decision reads:

"...Member States must, when transposing the directives on intellectual property and the protection of personal data, rely on an interpretation of those directives which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with the directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality."

The word Salomonic springs to mind.

Landmark software patent ruling in the UK

Back in November2007 I briefly commented on a case making its way to the High Court of England and Wales dealing with software patents. We now have a decision, and it may prove to be quite an important shift in the practice at the Intellectual Property Office.

The case is Astron Clinica Ltd & Others v The Comptroller General of Patents, Designs and Trade Marks [2008] EWHC 85 (Pat) . The ruling is particularly important as it was believed by many (myself included) that Aerotel was the final word with regards to software patentability. Those who follow the software patent debate, may recall that the IPO issued a set of guidelines arising from Aerotel which pretty much discourage outright software patent applications in the UK. This was not in line with practice at the EPO, or so it was believed by various parties which favour the patentability of software as such. This opinion was shared by a number of software developers, which then issued an appeal against the rejection of six separate patent applications made to the IPO. These applications had three things in common. They all represented claims for methods, devices and software. Examiners found that the claims on methods and devices were patentable, but that the software "as such" was not, based on the aforementioned guidelines and on the Aerotel ruling. What were the claims in those applications? I will quote from the ruling:

"Software 2000 has developed a method of generating bit masks for use with laser printers which results in higher quality images. It is implemented by programming a conventional computer, printer or copier to process images in a particular way. Software 2000 exploits its invention by selling the program to its commercial partners who then incorporate it in their printers and printer drivers, and distribute it to end users in the form of printers, computer discs and web downloads. The end users are located worldwide.

Astron Clinica was founded to commercialise skin imaging techniques developed at the University of Birmingham which enable images of the skin to be processed to identify the distribution and concentration of underlying skin chromophores. The invention described in its application provides a system and process for generating realistic images representing the results of planned cosmetic or surgical interventions which change the actual or apparent distribution of these chromophores. The invention is implemented by programming a computer to process images in a particular way. It is commercialised here and abroad by selling a disc which causes a computer to be configured so as to undertake the required processing.

Inrotis is a spin-off company established by the University of Newcastle upon Tyne to commercialise drug discovery and network analysis techniques. Broadly speaking, the inventions the subject of its two applications in issue concern methods of identifying groups of target proteins for drug therapy by processing proteome data defining proteins and protein interactions. The commercial product which Inrotis sells is a computer disc which causes a computer to be configured so as to carry out the necessary processing.

SurfKitchen is a mobile services company and has made an invention which improves the ability of mobile telephones to access services on the Internet. It is implemented by pre-storing a program on a mobile telephone memory or by downloading the program from the Internet. In either case the program is usually made available by one of SurfKitchen's commercial partners to whom it makes the program available on a computer disc.

Cyan Technology is a semi-conductor company which designs and builds microcontrollers. It has invented a method of generating data for configuring microcontrollers which greatly simplifies chip design and programming. The commercial products that implement the invention are computer discs and Internet downloads which cause a computer to be configured so as to undertake the required processing. Cyan Technology distributes these computer discs and Internet downloads worldwide."

As you can see, the claims are all very similar in the fact that there is a clear executable element to the invention. All of the applications relate to some form of software which runs on a device, be it printer, computer or mobile phone, which somehow improves the actual functionality of the recipient. The question facing the court was therefore whether the executable element is subject to patent protection. The answer is negative after Aerotel, but it also should be negative if one reads strictly Art 52(3) of the European Patent Convention, which clearly says that computer programs as such are not an invention. The problem has been that the practice at the EPO after various cases has been to allow patentability of executable computer programs, this has been repeatedly seen in various EPO Boards of Appeals cases (see T 1173/97, and most recently, T 0411/03).

The ruling has an extended section detailing existing legislation and case law, which I will ignore, as it is a common thread along these rulings. The meat of the matter however, is whether Kitchin J will agree with Aerotel and Jacob J in continuing the separate practice at IPO and EPO. I agree completely that the UK has been developing a completely different doctrine to that at the EPO with regards to software patentability, but I disagree that this is a bad thing. I have to say that I strongly believe that the various cases dealing with software patents in recent years had it right when it comes to analysing whether software as such is subject to patent protection. Jacob J clearly was not amused with the mental gymnastics exhibited by the EPO Board of Appeals to try to conveniently ignore the fact that the wording of Art 52(3) does not say what it clearly says. To be able to do this, the EPO invented the contrived and unworkable concept of "technical contribution", which does not exist in the legislation.

Unfortunately, Kitchin J decided that the split with the EPO should end. He claims to have read Aerotel closely, and he rightly points out that nothing in that decision prohibits the patentability of computer programs as such. He takes this as the permission needed to get back into EPO practice. He comments:

"... I do not detect anything in the reasoning of the Court of Appeal which suggests that all computer programs are necessarily excluded. I have identified the key aspects of the decision which relate to computer related inventions and they undoubtedly criticise the reasoning of the EPO Board of Appeal in each of the "trio" of cases. But the criticism is directed at the "any hardware will do" approach and the return to form over substance with the drawing of a distinction between a program as a set of instructions and a program on a carrier."

This is all the permission he needs, computer programs are back in the menu. He reasons:

"... it is highly undesirable that provisions of the EPC are construed differently in the EPO from the way they are construed in the national courts of a Contracting state. Moreover, decisions of the Board of Appeal are of great persuasive authority. In the light of Aetotel/Macrossan it is not open to this court to follow the decisions in the "trio". However the new approach can be interpreted to produce a result consistent with that obtained by applying the reasoning of the Boards of Appeal in IBM/Computer Program Product T1173/97 and IBM/Computer Program Product II T0935/97 - decisions which, I would add, are still followed in the EPO as shown, for example, by the decision of the Board of Appeal in Tao Group Limited (2007) T121/06."

While I can see the reasoning behind it, I have to say that this is an unfortunate decision. In my opinion, the wording of Art 52(3) of the EPC is more than clear, and ensuing cases have tried very hard to ignore the fact that it is very clear and unequivocal in order to allow for the patentability of computer programs. It is not up to the EPO Board of Appeals and the courts to change the wording of the treaty. Why not get it over and done with and actually push for amendment to the actual letter of the law?

You can see some thought on the case and an interesting series of comments at IPKat.

European Public Licence

On Friday 25 January I attended an expert meeting discussing the European Union Public Licence (EUPL). This is the latest member of the growing open source licence ecology, and if I must say so, it is quite a nicely drafted document (biased opinion warning, as I helped in checking the Spanish translation). The licence is initially intended to be used as the official release method for projects funded under the IDABC framework, but it is also intended to be the first open source licence with an officially sanctioned translation in 23 official languages of the EU, which in my opinion makes it particularly useful for public sector administrations across the continent. This I think is a great example of the importance given to open source by the European Commission.

There are three main features in the licence that I think make it useful. The first is its clear language and largely unambiguous wording, which makes it easier to understand than other licences out there (*cough* GPL v3 *cough*). Secondly, the licence contains a small yet functional patent clause, which is valuable for obvious reasons. Thirdly, it has a clever compatibility clause which allows wider freedom to developers in order to release modifications under one of the compatible licences, namely GPL (v2), OSL, CPL, EPL and Cecill. Here are some of the highlights from each of the presentations:

Francisco García Morán from the Directorate General in IT gave a background presentation giving the reasoning behind the Commission's interest in OSS. He mentioned that there have been other programmes in the past. Why does the Commission promote open source? Because it avoids lock-in, and because it is a paradigm which uses the power of communities. The key elements present in OSS is that it promotes interoperability and the support of open standards, also that they are community-friendly, and that it enhances competition. He stressed that the EUPL is not a goal, it is a means to facilitate OSS activities from the Commission.

Karel de Vriendt from IDABC gave some more specific introduction about the licence. There is the fact that there is software developed and owned by the Commission, via contractors, or as work-for-hire. He then stressed that the GPL may have enforceability issues in Europe, so research was commissioned in order to study available licences. EU legal services were unhappy with existing OSS solutions, and the study confirmed this concern. The Commission hired UNISYS and legal experts in order to draft the licence, which was approved in 2006 and launched officially in January 2007 in French, English and German. The licence then was translated into the remaining 20 languages and launched in January 2008. The Commission intends to licence software within the IDABC funding framework with the EUPL, but it is hoped as well that local administrations in member states will adopt it.

Sevérine Dusollier from CRIS gave an excellent presentation on the legal background. She first explained the steps in the research leading to the final draft:
- Assessing the existing licences
- Adapting an existing licence? No
- Drafting new licence
- Making sure it is compatible with GPL
She stressed that the intended audience for the licence are public administrations. The fact that most of the existing licences are drafted with American law in mind created , the need to draft a licence that fits the European legal tradition. Some legal elements found in the research:

• Applicable law: most licences have US Law, Cecill uses French Law, OSL is the law of the residence of the licensor. EU Principle of choice if law is lex loci contractus, or consumer's residence.
• Jurisdiction: determined jurisdiction (US, California, Paris). OSL: country of residence of the licensor. EU principle: court of the defendant's residence, place where contract is performed, consumer's residence. Art. 238 Treaty of Europe gives jurisdiction to the ECJ in private matters.
• Terminology: US terminology and licensing style. GPL is valid in Europe according to courts, but making the language fit may require some work.
• Copyleft issues: moral rights are a problem for the copyleft clause, which creates compatibility issues (except in the UK, where software does not have moral rights).
• Liability and warranty: applicable law changes from one country to another, as this is a matter for commercial law and unfair terms. Limitation of liability clauses could threaten the validity of the licence, but it is all a matter of balance.
• Licence - Contract dichotomy: As it was mentioned before, other licences rely heavily on American law, where there is a practical distinction between a licence and a contract. The EUPL was drafted as a contract, but also to comply with the E-commerce directive.
• Compatibility: GPL monoculture creates some problems, particularly for lack of adaptation or lack of official translations into other languages.

She then mentioned that the best solution was to follow a licence adaptation process similar to Creative Commons, and how it has analysed things like moral rights. She finished by stating that apparently the open source community has received the EUPL reasonably well.

Philippe Laurent also from CRIS gave a thorough analysis of the compatibility issues, too detailed to make it justice in a blog post. One of the things that I got from his presentation is that he explained compatibility really well by thinking about the direction in which the compatibility should work. In other words, if the EUPL wants to be compatible with the GPL, it can do so downstream. Code licensed under the EUPL could be modified and distributed under the GPL because the clause says that it is a compatible licence. However, at the moment, the compatibility is not reciprocal. Some other legal points:

- Defensive patent clause: simplified language that makes it different (and probably better) than the GPL v3.
- Compatibility clause: the EUPL is unique in having a compatibility clause. Shouldn't we be using the term interoperable? No, interoperability means interchangeability, compatibility can be one way or the other.
- Copyleft has problems for compatibility, as it creates obligations down a stream of distribution. The way to make EUPL downstream compatible with the GPL or others is through the compatibility clause, it creates a clause which specifically lists licences to be considered compatible. Those licences will be deemed compatible, therefore software under the GPL can be modified and distributed under the GPL. In case of conflict, the conditions of the compatible licence will prevail. I thought that this was a short and elegant way of dealing with licence proliferation.
- Distribution chains: bundle of licences is the main way in which this is done in GPL. EUPL adds sub-licensing.
- ASP issues: Application Service Providers. Does it trigger copyleft clause? Not clear at the moment. This is not a copyright matter, it is completely a contractual issue.
- DRM: not dealt with by EUPL.
- GPL v3 elements: Internationalisation, contractors and outsourcing, DRMs, anti-lock down (anti-Tivoisation), patents, additional terms. Anti-lock down is all sort of code embedded in hardware is subject to the provisions, but this seems a bit extreme as t covers products like ABS in cars. Intended devices are mobile phones and TiVO.

This is a rather sketchy look at what was a very rich meeting. There was an extended discussion session where many things were dealt with in detail. For example, at the moment the licence relies on copyright concepts such as "making available to the public". These are not harmonised and may be difficult to interpret, particularly when dealing with ASPs. The consensus seems to be that there will be some sort of political decision that will eventually deal with the questions of ASPs from a contractual basis, just like the GPL v3. There were also problems highlighted by some experts with regards to derivative works (potentially relevant to dynamic linking). The EUPL contains a copyright notice (the work is copyright of the European Commission), some people want to remove the copyright notice to the Commission because it is confusing. This may be relevant to the assertion of moral rights in the UK, but the consensus was that it is a superfluous element. A lot of discussion went into the limitation of liability as some jurisdictions may have issues with the validity of the clause because of legal requirements (e.g. double signature requirement in Italy). There was also discussion about future versioning: Should EUPL make GPL v3-like changes? The consensus was that not yet. There is compatibility already via GPL v2 and Cecill. Most importantly, there are some elements in v3 which may prove problematic, particularly DRMs.

Microsfot case conference

Luca Rubini from the University of Birmingham informed us about this event, which we reproduce for interested readers.

The Microsoft Case:

The IT industry and the Future of EC Competition Law

Friday 16 May 2008 (4:30 – 6:30 pm)

The case: A 2004 Commission Decision and a 2007 Court of First Instance Judgment condemned Microsoft for not disclosing interoperability information with its Windows Operating System and bundling it with its Media Player. The case required one of the longest Commission investigations, took three years to pass judgment, and sparked controversy striking at the very core of issues such as innovation, competition, and consumer interest. On 14 January 2008, the Commission showed that is was willing to make the most of the case which favoured it, by formally launching against Microsoft two new investigations for similar charges.

The conference: As the newly opened investigations show, Microsoft is a landmark case for both its findings and future implications. This conference gathers leading experts from private practice, including those who have been directly involved in the case, and from academia. Its objective is to provide an insight into the difficult technical and legal context of the case and facilitate a discussion of its practical impact on the evolution of EC competition law and intellectual property in the IT sector and beyond.

Conference Programme 16:00 – 16:30 Registration and coffee 16:30-16:40 Welcome and introduction Chair: Dr Luca Rubini (IEL, Birmingham Law School) Professor Martin Trybus (Director, IEL, Birmingham Law School) 16:40-18:00 Presentations Mr Ian Forrester QC (White & Case, Brussels) Mr James Flynn QC (Brick Court Chambers, London) Professor Steven Anderman (Department of Law, University of Essex) Mr Derek Ridyard (RBB Economics, London) 18:00-18:30 Questions and discussion 18:30 – 19:30 Refreshments

Contact Details:

Administrator: Miss Chloe Howell Tel: 0121 414 6282 Tax: 0121 414 3585 Email: C.J.Howell@bham.ac.uk

Starts: 16 May 2008
Start Time: 4:30
Venue: University of Birmingham
Cost:
Full Rate:£65
Academic Rate: £45
Student Rate: £25
Contact: Chloe Howell

Peruvian dancer obtains IP rights over national dance

(via Oscar Monezuma) Peru and Chile have been involved in all sorts of disputes over te years, including war, territorial claims, football, and most importantly, pisco. Now a Peruvian woman has added to the often friendly animosity between the two countries by obtaining IP rights in Chile over "la marinera", a national dance from Peru. According to Terra news site, Cecilia Gurmendi is a Peruvian dancer who lives in Chile. She made a claim to the Chilean Intellectual Property Department to obtain protection for the Peruvian folkloric dance, which was granted. The article is not clear on the type of protection claimed, the title suggests that she patented the dance, but then they also claim that she has ownership over the name for a period of ten years. I will try to get more detailed legal information from my contacts in the countries involved, so stay tuned for updates.

This is an interesting twist to Chilean-Peruvian relations. Apparently Ms Gurmendi has made her claim to stop Chileans from stealing the national Peruvian dance, just like they did with pisco. According to the Terra article, anyone attempting to make a public display of La Marinera has to obtain permission from Ms Grumendi. But things do not stop there, her husband is trying to obtain intellectual property protection over religious processions involving the Cristo Nazareno, another Peruvian tradition.

I know this is not indicative of any larger trends, and it is simply a freakish legal incident, the likes of which makes the monotony of the black letter of the law easier to bear, but I think that there is something to be said about the growing impact of IP in the public's psyche. Using Intellectual Property as a tool for nationalism seems like a natural progression from abusing it for commercial purposes. Make a broad, unsubstantiated and preposterous claim, and see if it sticks.

Hey, it works for software patents, so why not for petty cross-border disputes?

Update: Thanks to one of the comments I have learned that La Marinera has been registered as a trade mark in Chile under class 41 in order to describe typical Peruvian dances.

COMMUNIA Workshop

I attended a workshop on Friday in Turin, where I was attending the COMMUNIA workshop entitled Technology and the Public Domain. COMMUNIA is a European thematic network funded under the Econtentplus framework, which "aims at becoming a European point of reference for theoretical analysis and strategic policy discussion of existing and emerging issues concerning the public domain in the digital environment".

The workshop provoked some interesting discussion and had some good papers. My personal highlights were to hear Rishab Ayer Ghosh, who has edited a great book called Code. Also the workshop closed with a presentation by Séverine Dusollier, who impressed me as the most interesting proposal for the commons yet. Her proposal was with regards to the interaction between the public domain and the commons. What is the public domain? It is usually defined in negative terms, it is an absence of rights. It is not in legislations, so in most systems it is not even defined properly. What is the legal regime that applies to it? Her idea is to devise a legal regime for the public domain and make it an access right and a positive right subject to forms of protection, not subject to exclusivity. This has to do with some of copyright basics, such as the idea v expressions dichotomy, and the fact that the threshold of originality in copyright is very low. More and more things can be patented, so the public domain is being eroded. In order for it to survive, we need to express it possitively in the law.

What would be the shape of this positive public domain? That was less clear, and Séverine admitted that she is still thinking about it. She suggested that it could be to take the concept of commons (French Code version). "The use of the common is common to all."

Quite an intriguing theoretical discussion, but one of those large questions that we should ponder.

Patent for office surveillance software

Times Online has a report on new office surveillance software being designed by Microsoft. The software will monitor worker's performance by wireless sensors that measure "heart rate, body temperature, movement, facial expression and blood pressure." Even more interesting is the fact that the technology is the subject of a patent application by Microsoft.

Scary stuff, although the I'll save the moral panic for when the technology is widely available. I could insert a gratuitous mention to 1984, but I'd rather not.

Apple heralds the age of convergence

Everyone seems to be talking about the MacBook Air, although you will not see me parting from my 160HDD GB MacBookPro. Incidentally, why do some of Apple's new devices feel like a downgrade? The 16GB iPod Touch has nothing on my 60GB iPod. Anyway I digress.

One of the less publicised items from last night's Stevenote has been the iTunes Movie Rental (which incidentally, we're not getting this side of the Atlantic yet, what gives?). While this move was widely predicted by tech pundits around the world (which leads me to ask, am I a tech pundit now as well?), the real surprise for me is that it will be possible to download and watch movies directly to a TV using special software and an HDMI connection. This seems to me to be the true herald to the age of convergence, and seems to make a clear indication of intentions about Apple's future strategy.

The industry has to do something, after all, the Pirate Bay and similar sites are their direct competitors, even if they have been served with fresh legal documents from Sweden's prosecuting services.

Domain name disputes hit all time high

Domain name disputes against cybersquatting are at an all-time high according to data collected by WIPO. I must admit that I found this information rather surprising, as it was my understanding that after an initial period of healthy dispute settlements using ICANN's Uniform Domain Name Dispute Resolution Policy (UDRP), the number of disputes had been falling. According to WIPO's data, the statistics since 2000 are:

Year	Number of Cases
2000	1857
2001	1557
2002	1207
2003	1100
2004	1176
2005	1456
2006	1824
2007	2156

There's certainly a resurgence in the last three years. But why? WIPO is very efficient, and allows wider dissemination of the UDRP and its policies. WIPO's role as a dispute settlement provider assures that the UDRP will remain as one of the most successful examples of online dispute resolution in the world. However, the UDRP has often been accused of being pro-trade mark owner. For example, looking at WIPO's dispute outcome statistics per year, out of 11958 disputes, 65% have resulted in a favourable outcome for the complainant. If we consider that 22% of the disputes are dropped, only 11% complaints are dismissed. Granted, most of the defendants are cybersquatters, but one has to wonder about whether such a seemingly one-sided system can be sustained much longer. After all, losers can still initiate a dispute in their national courts.

Steady growth, finite resources, and arithmetic

This topic has little to do with IT Law, but it is part of my growing interest in the use of science for policy-making.

This video on YouTube has to be seen to be believed. There is an assumption that growth is good, our economic system relies entirely on steady growth. However, steady growth means that doubling figures, which means that resources start running out at a faster rate.

Seven random things

Mathias Klang has tagged me with the 7 random things meme. While researching this, I found that there are some rules. These are:

• Link to the person’s blog who tagged you.
• Post these rules on your blog.
• List seven random and or weird facts about yourself.
• Tag seven random people at the end of your post and include links to their blogs.
• Let each person know that they have been tagged by posting a comment on their blog.

1. I like researching the origin of memes.
2. I spend one month in Costa Rica every year.
3. I've been online since 1994.
4. I love sushi.
5. I am fond of anime's narrative style.
6. I am not good at thinking about random things about myself.
7. I hate making lists.

Researching this particular meme has been a true challenge because a lot of people do not link to the person who tagged them. Nevertheless, I have explored the furthest reaches of the blogosphere, and I think that I have found the original post. In my search for the origin, I have browsed the most inane blogs in the world; looked at backgrounds that would make you want to be colour-blind; listened to such inspirational Christian Western music that I had to turn off my speakers in order to retain my sanity (free web advise: DO NOT embed music on your website); learned more than I ever want to know about scrapping, tatting, quilting, crafting, being a mom in the USA; being a quilting tatting, scrapping mom in Oklahoma; seen more pictures of children than I care to count; and in general amazed at the wide diversity that is the Web 2.0 universe.

One of the things that I enjoy about these trips around the blogosphere, is how much they say about social networks. I reckon that this meme got started in April 2007 by a scrapper, which meant that during a month the meme was self-contained in scrapbooking circles. The meme moved on to Christian mothers, then quilters, then tatters, then inspirational speakers, and somehow it made the jump to academics (I have not been able to find the missing link between quilters and academics), which is how it got to me. More interesting for me is to see how the blogosphere is made up of little islands of interests which may seem trivial to outside observers, but which appear to be self-reinforced. I noticed that there are certain themes that are shared along those clusters, for example, the likelihood of encountering a bright background or a blog with music increases if other blogs in a cluster contain such themes.

By the way, I learnt that if you name your blog "My Crazy Life", it probably means that you are the most boring person in the face of the planet.

Now, I'm tagging Jordan, Nick, Lilian, Ian, Daithí, Nic and Fernando.

One Profit Per Child

The technology media has been filled with the story of the partnership dispute between One Laptop Per Child and Intel. For those unfamiliar with the story, OLPC is a non-profit organisation which produces affordable laptops to be sold to developing countries so that they can be distributed to children. The laptops are known for being innovative, compact and sturdy, they feature AMD processors and also do not have hard drives (storage is provided in memory chips like those found in USB keys and iPods). Intel had partnered with OLPC to provide an Intel version of the laptop, but the partnership was broken when a sales representative in Peru was caught lobbying the Peruvian education minister to flog their own product, called Classmate.

As far as narratives go, this one seems to hit most buttons. The large evil multinational corporation attacks the small and idealist non-profit organisation in order to gain more profits, while at the same time flogging their own project. However, the OLPC has been seriously criticised by industry insiders as a project with no-viability. Although I completely applaud OLPC and I share its goals, I'm rather sceptical about its future as well. If you are an education minister in a developing nation, and you have a limited budget, who are you going to trust? A non-profit company, or one of the largest IT companies in the world? Although it pains me to say it, were I in the same position I would look at Intel's deal twice.

Intel, bridging the digital divide one dollar at a time (apologies in advance for the gratuitous use of the word 'bridging' in connection with digital divide).

Format wars all but over: Sony won

The high-definition DVD war may be over as Paramount is set to choose Sony's Blu-ray format. Earlier in the week, Warner announced that it was going to release its catalogue on Blu-ray, which analysts say pretty much spells the demise of HD-DVD.

In my opinion, what really tipped the balance in favour of Blu-ray is the console wars. PS3 comes with built-in Blu-ray support, while Microsoft has refused to adopt HD-DVD in the Xbox 360. With the Sony console gaining a bit of momentum thanks to games like Assassin's Creed, it was only a matter of time for the studios to finally choose.

This war has been tipped as a re-telling of the VHS v Beta format struggle, a period of time that gave us the famous case of Sony v Universal. Ahhh! Those were the times when men were men, women were women, and small furry animals turned nasty if you fed them after midnight.

EU to adopt DRM policy?

(via Becky Hogge and others) The European Commission released last week a statement in which it seems to advocate for more DRM across Europe. Viviane Reding, the EU Commissioner for the Information Society and the Media, commented that:

"We have to make a choice in Europe: Do we want to have a strong music, film and games industry? Then we should give industry legal certainty, content creators a fair remuneration and consumers broad access to a rich diversity of content online. I will work on these issues with my colleagues in the Commission and propose a Recommendation by mid-2008 on new ways for achieving a single market for online content. I ask in particular Europe's consumer associations to take a very active part in this debate. Because for online content, the demand and preferences of 500 million potential consumers are the strongest arguments for achieving new solutions at EU level."

Brave words. How does the Commission pretend to achieve this goal of strengthening content providers? Amongst other things, they intend to create a transparent DRM framework! They say, and I quote:

"Interoperability and transparency of Digital Rights Management systems (DRMs) – Technologies that support the management of rights and the fair remuneration of creators in an online environment can be a key enabler for development of innovative business models. Lengthy discussions amongst stakeholders have yet to lead to the deployment of interoperable and user-friendly DRM solutions. The Commission therefore seeks to establish a framework for DRM transparency concerning, amongst others, the interoperability of different DRMs, and ensuring that consumers are properly informed of any usage restrictions placed on downloaded content, as well as of the interoperability of related online services." (emphasis mine)

This is an incredibly misinformed paragraph. The Commission assumes that DRMs are key for remuneration of online content providers, but this wild assumption is not based on any evidence whatsoever. They then recognise that there really has not been any user-friendly and interoperable DRM solution, which sort of contradicts the previous statement. How do they know that DRM can help creators if they recognise that such a system has not worked in the past? The Commission then tells us that the solution to the perceived lack of interoperable DRM is even more regulation!

Here is some free advice for the Commission. DRM has passed on, is no more, it has ceased to be, it has expired and gone to meet its maker, is a stiff, bereft of life, it rests in peace, its metabolic processes are of interest only to historians, it's shuffled off this mortal coil, it's run down the curtain and joined the choir invisible!

The Commission does not need to create a framework for DRM interoperability, the market has killed it off. Spend our taxes in something more productive. May I suggest regulating dwarf tossing once and for all?

BTW, Defective By Design has a campaign on this subject.

CC in UK TV

Channel 4 has been airing a program called Picture This, where 6 members of the public who submitted their pictures to a competition were selected to compete for a gallery exhibition and a book deal. The program is being sponsored by Flikr, and I was pleasantly surprised to find that all of the images displayed in the introduction, conclusion and ad transitions were licensed under CC licences.

Although the CC symbol is difficult to see, this is to my knowledge the first showing in UK prime time TV of CC images.

User Generated Content and copyryght

Peter Jaszi, Professor at the American University Washington College of Law, has written to let us know of the release of a report on User Generated Content and copyright entitled Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video. The study includes a blog. I'll let the report's press release provide more details about the content:

"A new, first-of-its-kind study conducted by American University Professors Pat Aufderheide and Peter Jaszi finds that many online videos creatively use copyrighted materials in ways that are eligible for fair use consideration under copyright law. In short, they are potentially using copyrighted material legally. These uses—an exercise of freedom-of-speech rights--are currently threatened by anti-piracy measures online. The authors will discuss their findings at a Monday panel on digital rights management, at the 2008 International Consumer Electronics Show Monday, Jan. 7 in Las Vegas, NV.

The study, Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video (centerforsocialmedia.org/recut), identifies nine kinds of uses of copyrighted material, ranging from incidental (a video maker’s family sings “Happy Birthday”) to parody (a Christian takeoff on the song “Baby Got Back”) to pastiche and collage (finger-dancing to “Harder, Better, Faster, Stronger”).

Researchers in the Washington College of Law and School of Communication followed thousands of links for videos on 75 online video platforms and discovered nine popular kinds of use (extensive database of examples at centerforsocialmedia.org/recutvideos). They are:

1. Parody and satire: Copyrighted material used in spoofing of popular mass media, celebrities or politicians (Baby Got Book)
2. Negative or critical commentary: Copyrighted material used to communicate a negative message (Metallica Sucks)
3. Positive commentary: Copyrighted material used to communicate a positive message (Steve Irwin Fan Tribute)
4. Quoting to trigger discussion: Copyrighted material used to highlight an issue and prompt public awareness, discourse (Abstinence PSA on Feministing.com)
5. Illustration or example: Copyrighted material used to support a new idea with pictures and sound (Evolution of Dance)
6. Incidental use: Copyrighted material captured as part of capturing something else (Prisoners Dance to Thriller)
7. Personal reportage/diaries: Copyrighted material incorporated into the chronicling of a personal experience (Me on stage with U2 … AGAIN!!!)
8. Archiving of vulnerable or revealing materials: Copyrighted material that might have a short life on mainstream media due to controversy (Stephen Colbert’s Speech at the White House Correspondents’ Dinner)
9. Pastiche or collage: Several copyrighted materials incorporated together into a new creation, or in other cases, an imitation of sorts of copyrighted work (Apple Commercial)"

I've had a brief look at the website and the report, and this looks very thorough. It is great to see UGC being taken seriously by academics of the highest calibre.

Chinese search engine wins copyright infringement case

Various news sources have been reporting that the Beijing High Court has ruled in favour of popular search engine Baidu.com in a copyright infringement suit brought by major record companies. The dispute arose by the existence of a dedicated music search function called Baidu MP3, which allowed users to find infringing copies hosted by third parties. Four major record companies (Universal, EMI, Warner, Sony BMG) and their subsidiaries sued Baidu in 2005 for copyright infringement, alleging that the search engine allowed the download of 137 of their songs. A court ruled in favour of Baidu in November, but the music companies appealed.

This seems like a reasonable decision which lends credit to those of us who believe that linking to infringing material is not infringement as such.

This seems like a good story with which to start 2008. Happy New Year!