Selling out?

Habitual readers may be interested in knowing that I will soon be joining the ranks of Newstex, a blog syndication service that aggregates content and sells it to legal information services such as LexisNexis, EBSCO, CanWest MediaWorks, Thomson Financial, and Thomson Business Intelligence.

I am quite chuffed by their invitation for many reasons. Firstly, this means that I might actually get paid for blogging (granted, it will just be enough to buy me a cup of coffee, but the thought is nice). Secondly, it is a service offered through invitation after a content review, which must mean that someone somewhere finds the information useful. Thirdly, I will be joining many blogs that I admire. And fourthly, there is some form of validation involved in such an endeavour.

This has got me thinking about Web 2.0 in general. One of the clichés attached to the participatory web is the fact that it is part of content democratisation. Everyone is a publisher, everyone is a content provider, everyone is a content-owner, etc. Yet, vast most of the terabytes of digital content available online goes unnoticed and unread by the masses. We develop small niche islands of shared interests that never see the light of the mainstream. This is a good thing in my opinion, but then, why do we all get so worked up about mainstream recognition? Are we all just like those alternative musicians who like to perform for free, but who secretly yearn for that phone call from the music industry?

Anyway, I can promise that this will have no bearing on the content. I hope that I can still be as quirky as usual, although you may expect some more pictures of llamas.

Everyone loves llamas.

COMMUNIA Workshop

Second COMMUNIA workshop: Vilnius, Lithuania, 31/03/08

Ethical Public Domain: Debate of Questionable Practices - this is the title for the Second COMMUNIA workshop to be held in Vilnius, Lithuania on Monday 31 March 2008 from 8:30 to 18.

The morning session will be held at ELTA press center, with registration and introductions from 8:30 to 10:00, followed by ten rounds of debates from 10:00 to 15:00 (about half-an-hour each). At 15:00 there will be a press conference to share the results with the media and the public.

The afternoon session will take place at the Neringa Restaurant, Gedimino 23. A discussion of ethical and legal frameworks for a vibrant Public Domain will be followed by dinner and an evening of creative works.

The workshop is open to the public and is designed to encourage audience participation. Remote participants will also be included by video bridge. For more information and/or to sign up, please visit the workshop website http://www.ethicalpublicdomain.org

Local contact: Andrius Kulikauskas (ms@ms.lt)

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About COMMUNIA

The COMMUNIA Thematic Network 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 - as well as related topics, including, but not
limited to, alternative forms of licensing for creative material; open access to scientific publications and research results; management of works whose authors are unknown (i.e. orphan works).


Funded by the European Commission within the eContentplus framework, the 3-years long project expects to provide policy guidelines that will help each stakeholder involved - public and private, from the local to the European and global level.

COMMUNIA also plans to build strategic relationships with other non-European countries (starting with the United States and Brazil, where two COMMUNIA members are located) in which similar policy discussions are currently underway.

Website: <http://www.communia-project.eu/>
Media contact: <press@communia-project.eu>

Why do you hate America?

(via Guardian Blogs) It seems just like yesterday that Darl McBride wrote his infamous letter to Congress, where he came narrowly close of calling open source as tantamount to anti-Americanism, communism and abolition of intellectual property rights. Bill Gates famously called open source a modern form of communism. What do you know, they were right! Jim Whitehurst, CEO of Linux distributor Red Hat, has expressed that his company has benefited from anti-American sentiment. Citizens of the world resent paying "American intellectual property taxes", and "outside the United States, open source is seen from a public policy perspective as a fundamental good."

This sort of squares with my own experience of talking and conferencing on the subject of open source. Public administrations around the world are more likely to favour open source because it is sound public policy, it is cheap, it offers source code to the world, and it does not send money to Microsoft.

I can imagine the headlines in right-wing blogs: Al-Qaeda runs Linux. Saddam was a famous Firefox user. Iranians dig Apache.

Do WoW autopilot bots infringe copyright?

(via TerraNova) Blizzard, the makers of World of Warcraft, are involved in copyright litigation against MDY, the makers of a cheat program called Glider. This program allows users to run the game on autopilot by becoming a bot that allows the user to kill monsters and farm their loot without having to spend hours in front of the system. You just install Glider, leave the computer running, and see the Gold rush in. This has serious implications for a game like WoW, and Blizzard argues that "Glider use severely harms the WoW gaming experience for other players by altering the balance of play, disrupting the social and immersive aspects of the game, and undermining the ingame economy." WoW gold has real value in the real world, therefore the claim gains credence in my opinion.

What is Blizzard's copyright argument? They have gone back to licensing basics. Players who buy WoW have to sign up and accept the terms and conditions of the licence. WoW Terms of Use clearly state that:

"You agree that you will not (i) modify or cause to be modified any files that are a part of the Program or the Service; (ii) create or use cheats, bots, "mods", and/or hacks, or any other third-party software designed to modify the World of Warcraft experience; or (iii) use any third-party software that intercepts, "mines", or otherwise collects information from or through the Program or the Service. Notwithstanding the foregoing, you may update the Program with authorized patches and updates distributed by Blizzard, and Blizzard may, at its sole and absolute discretion, allow the use of certain third party user interfaces."

This is a condition which would translate into a termination of the licence. As we know, a copyright licence is an agreement that allows a user rights which they would otherwise not have. In this case, if the licence is removed, the user would be infringing copyright. Blizzard also argues that Glider is breaking its technological protection measures, which makes it liable under the DMCA s1201.

I have to say that I'm with Blizzard on this one. The terms and conditions are clear, so whoever is in breach of those terms, should face the consequences. Also, the existence of bots devalues the currency exchange between WoW and real currency, as it clearly affects the ingame economy. However, I wonder if MDY will argue that Blizzard turns a blind eye against all other modifications of the game. One of the best things about WoW's interface is that it lends itself to countelss user-generated add-ons. These clearly enhance user experience, but are they not infringing the ToS as well?

Computer programs are not software, UK judge says

I mentioned yesterday the new case in the High Court of England and Wales regarding software patents, Symbian Ltd v Comptroller General Of Patents. Symbian Ltd is a UK company which produces a mobile operating system, and in 2004 made a PCT application for "Mapping of dynamic link libraries in computer devices". The title itself should give a hint as to its potential validity, as DLLs are at the heart of a computer's functionality. The patent has been awarded by the European Patent Office (EP1678608), but it was rejected by the UKIPO (GB0325145.1). The patent is currently in the application stages at the USPTO. The abstract reads:

"A dynamic link library (DLL) in a computing device is provided in the form of a first part and an extension part. The first part has selected entry point ordinals by which an application program may link to first functions. The application program may only link to further functions via the extension part of the DLL."

I have read the application, and I must be missing something, but this does not seem to meet patentability requirements. Symbian seems to be saying that they have found a new way to link DLLs so that it will improve performance and interoperability. How does this amount to an inventive step? Moreover, the practice both in the UK and at the UKIPO has been to award patents only to software that offers an advance in the state of the art, which this invention fails (at least in my uneducated and opinionated view).

Symbian appealed the application rejection by the UK Intellectual Property Office, and the ruling makes for some interesting reading. Firstly, we get a re-run of the case law in this area. Then, we get yet another convoluted reasoning to assume that Art 52 of the EPC does not say what it clearly says, namely, that computer programs as such are not inventions, and therefore not patentable. The ruling then goes on to apply Aerotel's test. Software patent geeks will know this by heart. The test says:

1. Construe the claim
2. Identify the actual contribution
3. Ask whether it falls solely within the excluded subject matter
4. Check whether the actual or alleged contribution is actually technical in nature

Patten J goes through the first three steps of the case, but forgets completely to answer the fourth! Patten J first construes the claim:

"This is not a problem in the present case. As explained earlier, the substance of the claim is the re-organisation of the DLL into two parts and the provision of a library interface for the extension DLL so as to improve the linking of any EXE program running on the computer with the available functions contained in the DLL files. No issues of construction arise."

Then he identifies the contribution:

"Symbian's case before the Hearing Officer was that the contribution made by the invention lay in the improved reliability of a computing device enabled by the provision of a novel interface. This enabled the EXE program to access available functionality regardless of additions or amendments made by the updates to the DLL and its ordinal numbers. "

Then he wonders if the contribution is excluded software matter (in other words, whether or not it is "software as such"):

"So is this invention no more than the running of the program? Having regard to the earlier authorities the answer has to be that it depends on what the program does and not merely how it does it. The mere fact that it involves the use of a computer program does not exclude it [...] The key elements in her reasoning appear to be that the use of the new interface to obtain better linking between the EXE program and the updated DLL does not involve a change in the role of the DLL but only in the way in which it is accessed in the new piece of software. This is nothing more than a computer program and is therefore, she decided, excluded from patentability. "

This is going well. He recognises that the application was rejected because it was software as such. He then goes on to agree that step 4 may not always be needed if the test falls at steps 2 or 3. In this particular case, the UKIPO has considered it to have failed at 3, as it is clear that DLLs are "software as such", and therefore should not be patentable software matter. I happen to agree with the UKIPO's interpretation. Unfortunately, Patten J has clearly hit his knowledge wall when it comes to software, and then rambles on about whether or not DLLs and operating systems are separate entities and should be considered as software (heavy theoretical Information Systems stuff coming from an English judge, ugh!). Patten J then delivers the single-most uninformed sentence with regards to software that I have ever read. He says:

"It is simply inaccurate to label all programs within the computer as software and on that basis to regard them as of equal importance in relation to its functionality."

What? When? How? Software is simply "a set of statements or instructions to be used directly or indirectly in a computer to bring about a certain result". Computer programs are... exactly the same thing!

Unsurprisingly, the conclusion is disappointing. Patten J disagrees with the narrowness of the UKIPO analysis, bypasses step 4, and concludes as follows:

"I think that the Hearing Officer took too narrow a view of the technical effect of the invention and was wrong to exclude it from patentability on the basis that it amounted to no more than a computer program. The appeal will therefore be allowed."

This is strange, because if he considered that Symbian's application was indeed patentable subject matter, then he should have gone to test if it had a technical contribution. Technical contribution has been defined by the EPO Board of Appeals as some technical advance on the prior art in the form of a new result. I cannot possibly see how making DLLs run faster amounts to such.

Now I understand why the ruling is being appealed by the UKIPO.

Symbian ruling will be appealed

The latest software patent UK High Court case, Symbian Ltd v Comptroller General Of Patents [2008] EWHC 518 (Pat), has continued following the line set by Astron Clinica. The case exemplifies the split between UK-IPO and EPO practice on software patents, as the EPO awarded the patent, while the UK-IPO did not. At the heart of the question is the issue of whether or not software as such can be subject to patentability.

Symbian's claim protects DLL indexing in a computer. I may be entirely wrong here, but where is the innovation in that? Anyway, the High Court ruled in Symbian in favour of the "inventor". The good news is that the UK-IPO has declared that it will appeal the ruling, as it is clear that the judge did not follow the Aerotel/Macrossan test. However, while I welcome the appeal, I feel like this may be too little too late, as the EPO keeps awarding preposterously bad software patents. While English courts have sometimes been standing in the way of EPO practice, the problem will not be solved until the EPO Board of Appeals starts interpreting art. 52 of the European Patent Convention differently.

The EPO is under a lot of commercial pressure from American software companies to harmonise practice across the Atlantic.

ISP police, Sweden says no

While many news sources reported last Friday that Sweden was going to get tough on illegal file-sharing, most failed to mention one of the most important parts of the statement. While it is true that Sweden is considering asking ISPs to identify file-sharers, ministers have ruled-out asking ISPs to police the network and remove access to the Internet for offenders. A comment in the Swedish press on the subject of ISPs reads:

"The proposal in the Renfors-review that ISPs should be given the right and be forced to shut down subscribers whose Internet subscription has repeatedly been used for infringing copyrights has met with strong criticism. Many have noted that shutting down an Internet subscription is a wide-reaching measure that could have serious repercussions in a society where access to the Internet is an imperative welfare-issue. The government has, because of this, decided not to pursue this proposal." (Translation Vera Franz)

This is such an accurate statement, yet it seems to have bypassed a lot of policy-makers pushing for the "three strikes" approach. In an era where Internet has become a sign of social and economic inclusion, cutting access to the Internet for an entire family could prove more damaging than the perceived threat. Moreover, this steep punishment is being suggested as an administrative sanction performed by a private body. Whatever happened to due process of law and all that?

Update: Mathias Klang beat me to the story. He's Swedish after all :)

ISP liability, round two

Last month we talked about the much reported plan to force ISPs into enforcing file-sharing by imposing a "three strikes and you're out" policy by which users who download infringing material online will be issued with two warnings and then their system will be disconnected from the network. I commented that this is part of a wide-ranging offensive by content owners in their battle against illegal downloading.

There is a complex negotiation taking place at the moment between the copyright industries and ISPs, where the details of the enforcement are being discussed. On the sidelines, you have the government threatening to unleash legislation if the parties do not come to an agreement. The next stage in the negotiating process seems to be taking place in Ireland, where Irish ISP Eircom has been taken to court over copyright infringement by its users. Daithí at Lex Ferenda has a comprehensive analysis of the case, which I will not repeat here. What seems to me, is that this lawsuit is just part of the ongoing enforcement shift by the music industry. As the direct attack on users failed, the industry is going after ISPs in a U-turn from previous policy of ISP indemnity.

In the early days of the Internet as we know it, ISPs were subject to liability suits for hosting illegal, defamatory and/or infringing content. This practice shifted as it became clear that it was not feasible for ISPs to control vast amounts of information they hosted, and therefore notice-and-take-down approach prevailed. What we are seeing now is a large shift from that practice, as music owners have realised that their best chance of curbing infringement is to go after the ISPs. In my opinion, the Eircom suit serves two purposes: it tests the existing ISP limitation of liability; and it also sends a clear message to ISPs. Comply, or else.

Firefox 3 beta 4 released

There is a lot of excitement about the new Firefox. I've just downloaded it for both Mac and Windows, and I have to say that this is the best browser I have ever tried. The first thing I've noticed is that it is fast, in some instances pages that took seconds load almost immediately. The interface is cleaner and more modern-looking, and the Mac version has a Leopard skin that makes it more in line with the "Mac-look".

Firefox is quickly becoming the public face of open source. True, some other project are more importan, and some of the ocmpanies make more money, but the mainstream public is less likely to know about Apache, Red Hat and Novell.

BILETA panel on open access

BILETA 2008 - The 23rd Annual Conference
Thursday 27th March, 16.15 - 17.30
Glasgow Caledonian University
Open Access to Legal Information - A Panel and Open Discussion
Organised by SCRIPT-ed

The ‘Open Access to Legal Information’ session will comprise a panel, each member of which will discuss an element of open access and legal education, followed by an open discussion in which the audience is encouraged to participate. The panel will offer a broad introduction to the concept of open access in the legal context, and will address the special issues associated with operating an open access, online journal, open access and the new environment of demonstrating academic impact, and the need and possibilities for online journal networking.

• Andres Guadamuz - AHRC Research Centre for Studies in Intellectual Property and Technology Law, University of Edinburgh
• Shawn Harmon - Editor-in-Chief, SCRIPT-ed
• John MacColl - European Director, RLG Programs, St Andrews University Library
• Abdul Paliwala - Professor of Law at Warwick University
• Diane Rowland - Professor of Law at Aberystwyth University

Microsoft blues

It's been a week since the largest ever fine by the European Commission was issued to Microsoft for failure to comply fully with the eponymous competition case. I must admit that even I, not a fan of Microsoft, flinched at what seems to be unusually steep punishment for failure to comply with some minor interoperability issues in Microsoft Windows 2000 Server. Last week we also had an excellent lecture by Microsoft's counsel Ian Forrester QC at the Playfair Library, which gave a very detailed account of the many problems with the decision.

The dust is starting to settle, so one has to wonder, what next for Microsoft? Everyone seems to agree that Vista is a dud, even those who initially thought it was a good system. The reasons for Vista's problems are well documented, but it seems like hardware compatibility, and building the system as a DRM tool, are precisely the reason why it is so bloated and slow. As I have mentioned before, I tried it and gave up after Microsoft Live refused to open because of memory problems. And no game support. Urgh!

Steve Ballmer has now declared that their European troubles are over, and it seems like the company is trying to draw a line under the case and the £2.6 billion fines. One of the first steps taken in order to achieve closure has been to open the code to some products in order to ensure interoperability. Another part of the strategy is to slash prices for Vista Premium and Home Editions, and there is talk that Vista SP1 will greatly improve performance.

Will these measures work? If they do not, Microsoft may be facing a bleak future. Microsoft's profits rely heavily on enterprises upgrading their software, particularly Windows and Office. Microsoft's profits have been ensured by their virtual dominance of the software market. Every time they release a new version of Windows or Office, a bulk of their profits comes from enterprises all over the world upgrading to the new product. This also reinforces Microsoft's dominance of the market, as people are more reluctant to migrate to other systems if their home computer relies on Microsoft's products. This model has worked well in the past, but now that Vista and Office 2007 are under-performing, questions are being asked. Microsoft still dominates the software market, but the versions that are more likely to be installed in an enterprise machine are still Windows XP and Office 2003. Those are profits that last made their way to Microsoft five years ago (and counting). Enterprises are reluctant to migrate to Vista because of cost, productivity concerns, and the widespread belief that XP works better than Vista.

Meanwhile, geeks will continue to migrate to Linux or Apple, depriving them of another valuable source of income: the male compulsive-buyer.

Update: Glyn Moody has an interesting article in The Guardian related to this topic, highly recommended, despite the fact that he uses the term "GNU/Linux".

Cyberterrorism and virtual worlds

(via Wiebke Abel and other sources) Many news sources have been carrying this story. Apparently, the United States intelligence services (who also brought you The Iraq War), are hunting for cyber-terrorists in Second Life and other virtual worlds. Apparently, those dastardly terrorists are coming to a screen near you, envious of your cyber-freedoms and your cyber-way of life, or something like that.

The BBC reports that the operation is codenamed Reynard, and the objective is to look for anomalous behavioural patterns which may give away a terrorist. Wired informs us that the intelligence services will automatically detect "suspicious behavior and actions in the virtual world." Anomalous behaviour? Now that I think about it, it is probably true. I thought that a Night Elf I was teaming with last night was acting rather suspiciously. He aggroed a large mob of dragonkin and wiped us out. Suicide tanking?

Seriously though, this seems to be just hype. I am hoping that this is just one of those silly reports that military services are prone to produce from time to time, akin to looking into mind-control techniques, UFO's, and stopping a goat's heart with thought alone. I cannot imagine that this is a serious proposal from the American intelligence services.

Juan Cole has an excellent piece in Salon on this topic, which can be boiled down to calling the concept of virtual world terrorism "laughable". I am reminded of Adam Curtis' The Power of Nightmares.

Blackboard wins e-learning patent suit

Since 2006 I have been following with interest the patent infringement case of Blackboard v Desire2Learn. Blackboard is a provider of educational software and virtual learning environments, which owns U.S. Patent 6,988,138 protecting "Internet-based education support system and methods". In 2006 they sued VLE provider Desire2Learn for infringement of aforementioned monopoly right. No points for guessing in which jurisdiction was the complaint filed, let's just say that it is a large state that borders Mexico, and it is not California. The case made it to trial, and the jury awarded Blackboard $2.5 million USD (about 44 million WoW gold) for lost profits and $630,000 USD in royalties.

At this point I should probably offer a rant about the evils of software patents, but I think that the facts speak for themselves. A company is using its patent in order to eliminate competitors from the market. Surely, this is not what the patent system is all about, is it?