The Software Patent debate goes on

It has been more than a week since the Commission text of the Directive on Computer Implemented Inventions was defeated 648 to 14 votes, proving that the Commission's dodgy strategies have failed. This is already old news in the Blogoshpere, but as I missed the entire round of posts the first time around, but I thought that I would have a second look at what has happened now that the dust is settling and as there has been some time to reflect on what is taking place.

The scrapping of the Commission text is good news, as it was the closest proposal to the American system that we have had so far. It also proves that their tactics to try to circumvent the democratic institutions of the European Union by passing an unpopular directive by stealth have seriously backfired on them. What is bad news is that we now find that the patenting system in Europe is going to have to follow the flawed and often contradictory practices of the last few years. We will have to live with the many broad and obvious patents being awarded in Europe, and this is not a good thing. We do need a directive, but we will not get one in the near future.

I have spoken with a couple of people who are in favour of software patents, and they seem to be happy with the result. This bothers me.

OSS goes corporate

I am back from my conference spree in Italy, and I have brought back a good number of ideas. The OSS 2005 was particularly interesting, and I was struck by the presence of many industry representatives, and particularly by the presence of people from the Business Software Alliance, Microsoft and the European Patent Office. Does this mean that OSS has gone mainstream? It seems to me that the worries by some FS activists may be coming to fruition, and OSS is in danger of being hijacked by corporate and commercial interests. The implication that Microsoft and the BSA might join the open source bandwagon could spell trouble.

Another interesting development from the conference was the presence of some public administration types who talked about the public push towards adopting open source. This worried me because in some cases, there is a considerable amount of public expenditure into supporting FLOSS models. I don't think that it is appropriate for government to put their weight behind a specific model of software development.

As for the conference itself, I thoroughly enjoyed it. Although this was not a legal conference, there were a number of papers that were extremely interesting. I was surprised by the width and depth of research in Open Source Software, particularly with regards to the success of the business model and the organisational and strategic aspects of OSS projects.

The quality of the actual papers was very high, although the actual presentations often left considerable room for improvement. People must understand that PowerPoint is a tool, and that droning with a boring voice will send people to sleep.

Here is a list of some papers that I liked:

• Measuring Success of Open Source Projects Using Web Search Engines, D. Weiss.
• Fun and Software Development, B. Luthiger.
• Evolution of volunteer participation in libre software projects: evidence from Debian, G. Robles et al.
  
• Open Source software, intrinsic motivations and profit-oriented firms. Do not firms practise what they preach? A. Bonaccorsi and C. Rossi.

SCRIPT-ed June issue

I have finally been able to get the June issue of SCRIPT-ed bug free. This issue was delayed because the website has been moved to a different server. The contents of this issue are:

Editorial
- HUGO Ethics Committee: Ten Years On, Ruth Chadwick.

Special feature
- Workshop: Intellectual Property Rights Issues of Digital Publishing - Presence and Perspectives, Introduction by Burkhard Schafer.

Peer-reviewed articles
- The Protection of Traditional Knowledge Related to Genetic Resources, Marko Berglund.
- The Protection of Expressions of Folklore Through the Bill of Rights in South Africa, ES Nwauche.

Analysis
- Legal Challenges to Open Source Licences, Andrés Guadamuz González.
- Should There Be an Obligation of Disclosure of Origin of Genetic Resources in Patent Applications? – Learning Lessons from Developing Countries, Graeme Laurie.

Book Reviews
- The Digital Sublime: Myth, Power, and Cyberspace by Vincent Mosco, Reviewed by Jun Gu.
- Media, Technology and Copyright: Integrating Law and Economics by Michael A. Einhorn, Reviewed by Christopher T. Marsden.

OSS 2005 Conference

I am at the OSS 2005 Conference in Genova, Italy. Internet connection is a bit sketchy, so I will not be able to blog this fully.

I don't see any other lawyers present, so I am getting a bit nervous. I am going to be presenting this paper, which is very small comment on some of the latest legal developments. Unfortunately, it came out after last week's vote on the CII Directive, so it is already outdated. The conference is extremely interesting so far. It is mostly a developer conference, which is really interesting because will be getting a better idea of the problems faced by the people in the trenches.

Italy

I am in Italy for two weeks for the ICABR and OSS 2005 conferences.

G8 protests in Edinburgh

What an amazing day yesterday. This is actually related to Technology Law, as some of the solutions to the problems of poverty can be found with technology and with policy solutions, particularly with regards to IP protection of technology and the access to knowledge in developing countries. This is my favourte picture from yesterday:

The police were out in force. These horses look bored, but cool in their sunglasses. Oops, sorry, they are not sunglasses, they are anti-riot goggles. Easy to confuse.

Libre Commons

Interesting new set of licences from some of the people at Loca Records. I like seeing new licences and ways of thinking, so congratulations to the drafters.

I do have some problems with the licences though. The licence is described as "non-legal licenses that will operate in the shared space that can non-bureaucratically and non-instrumentally be formed resisting law, the intellectual property regime and state violence." Fine, but if they are not really licences, then what are they? In the Creative Friends mailing list some of the proponents have called it an anti-licence, someone else called it apseudo-licence. What does it mean? The licences are supposed to be a political and social movement that does not rely on the "law or legal fictions". Fair enough, but why call it a licence? It is not a licence, it is a manifesto, a declaration or a pamphlet.

I am also confused by the objectives and the target audience. It seems to me that the target audience is a certain type of well-educated political activist that can understand the intricacies of the language, and therefore the target is not the mainstream. Such exercises strike me as slightly elitist, but we will see how it pans out.

Open Source in league with al-Qaeda

A man in Utah knows who is to blame for all the evils of this world. It's not Osama Bin Laden, it's not North Korea, it's not even George W. Bush. The blame lies at the feet of the open source movement. Yes, those evil people at Groklaw, Slashdot and Sourceforge are guilty for everything, from WMDs to the fall of the dollar and the decline of American civilization. The U.S. is losing the War on Terror^TM because open source has placed large chunks of American technology in the hands of terrorists. You can read the entire thing here. Some choice claims:

40. Among other things, the OSS advocates the dismantling of all intellectual property laws that restrict the trade in free software, including the overthrow of the US patent system, intellectual property laws, and the overthrow of the European Union attempts to create a patent system to protect the intellectual property rights of individuals, and computer technology companies.

43. As a result of these activities, a large portion of US technology has been unwittingly placed into the hands of various groups around the world, including Al-Queda, and other groups who sponsor international terrorism.

44. As a result of these activities, a large portion of US technology has been unwittingly placed into the hands of various groups around the world, including radical governments and groups who sponsor and have used the technology in support of the creation of weapons of mass murder and mass destruction designed to murder American Citizens and their families.

46. The beheading and murder of United States Citizens in Iraq, Saudi Arabia, and other countries have been videotaped, converted to MPEG and other images for viewing on the public Internet through the use of OSS and Linux software and computer technology developed and purloined by Linux and OSS members and illegally exported from the United States.

I am not sure what they smoke over there in Utah (according to Merkey, it's not peyote), but this guy must be on something.

Parliament report on Open Source

(via David M. Berry). This is a report on OSS by the Parliamentary Office of Science and Technology, which is charged with offering a balanced view on key policy issues. The report is well-balanced and measured, and it comes out very strongly in favour of open source, and it even mentions the software patent debate, while calling them software patents and not computer implemented inventions, which is a good step.

The report concludes with the following remarks:

• Acceptance of open source software is increasing in both the public and private sector. The Office of Government Commerce report states that it is a viable and credible alternative to proprietary software for infrastructure and for most desktop users.
• The government'’s OSS policy promotes a ‘level playing field’ in which OSS solutions should be considered alongside proprietary ones in IT procurements.
• It is increasingly acknowledged that there is a role for both open source and proprietary approaches and that a combination of both approaches stimulates creativity and innovation.

This is a very welcome development, and it should help to bring forward the availability and viability of OSS as a valuable businness model.

Grokster

So, I come back to the UK and the biggest decision in Cyberlaw in recent years has finally taken place. It was expected that the U.S. Supreme Court would produce a negative ruling against P2P manufacturers, and if one reads the press, this would seem to be the case. However, the ruling is more nuanced than what we are being told. The Court decided unanimously on two main points:

• The distributor of a dual-use technology may be liable for the infringing activities of third parties where he actively seeks to advance the infringement.
• Sony does not need revision.

However, there was a 6-3 split in the point of inducement. The court found that there was enough evidence that StreamCast and Grokster communicated an inducing message to their software users. Inducement is defined as an advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations. This ruling is much less damaging than expected. What this means is that the technology appears to be fine, as long as the manufacturers do not induce users to infringe.

But the real question is, who cares? Is this going to stop one single music download? The answer is likely to be negative, because the ruling attacks clients, not the networks themselves. You can shut down Kazaa tomorrow, and the Fastrack network will still exist.

This is the end...

The end of the conference is a discussion asking three questions:

1. How communicate?
2. How decide?
3. Who will report?
   

The answers are at the heart of the future of international Creative Commons. The success of the movement so far has been due to the energy and belief of a number of enthusiasts in many countries. How can this energy be directed? How can it be brought forward? The danger in my opinion is that by trying to direct the energy, CC would end up being a stiff international organisation. Choosing the wrong structure could kill the momentum dead.

DRM

What is Digital Rights Management? This may seem like a rather straightofward question as there is quite a lot of information already on what is a digital rights management. Yet, maybe there is not.

There are many people who equate DRM with restrictive technical protection measures, yet this is inaccurate. The broader definition of DRM accepts that it covers all sorts of handling rights, this includes tracking, metadata, watermarking for authorship purposes, etc. This is much more accurate description in my opinion.

As such, what is generally known as DRM is better defined as Technical Protection Measures, which better describes some the access restrictions that bother some people.

Science Commons

The morning session started with a presentation by John Wilbanks about Science Commons. To me, this is one of the most important parts of the entire weekend, but I am biased because I am an advocate of open access. The possible application of FLOSS ideals into the scientific domain has have to be one of the most important questions in the open licensing movement. John talked about the many problems with the academic publishing industry, but specified that Science Commons is not attempting to enter into some of the debates about OA business models.

He did mention some successful examples of the OA philosophy that use CC licences, such as BioMed Central, and Rice Connexions.I didn't know about Connexions, so I am grateful for this, it looks like a great resource.

There was mention by both John Wilbanks and James Boyle that there are some serious considerations about the porting of licences for patented materials, and this is an area that requires more research.

The day after

Ohhhh me head... The event yesterday finished with a lively BBQ at Charles Neeson's house. This involved a pool, lots of beer and an international group of enthusiastic geeks.

Lots of tired faces around, and blogger to blogger, I am as well.

Hummocracy

Something cool coming out of the conference, there is no longer a show of hands to measure the popularity of an ideal or a proposal. Now proposals are put through "hummocracy", the speaker asks the audience to hum if they agree to something.

Professor Charles Nesson is giving an inspired speech about the CC movement. Who are we? Why are we here? What is our goal?

Damn, I am already talking as "we".

Legal questions in Creative Commons

Now we get to the nitty gritty of the conference, where some of the important legal questions are being discussed. The first question is that of moral rights. A very lively discussion has taken place regarding moral rights. There was an interesting proposal to add the right to integrity as a new element called the Integrity Element (IN), in addition to the main four elements. This has prompted some comments, particularly dealing with compatibility of international licences and the problem of implementing the integrity right to countries that do not allow the waiver of moral rights. The issue was not resolved, but there was a proposal to differentiate the moral rights issues with endorsement issues. That means that there could be an addition to the attribution element to include a line that states that the use of the work is not considered an endorsement towards the user.

The other legal discussion has been the issue of collection societies. Some collective societies have already placed restrictions to the their subscribers not to use CC, as is the case with Australia. The other problem is the collecting societies using FUD to attack CC because they see it as a threat to their monopolistic model. One of the discussions was precisely that creative societies are monopolistic, therefore anti-competitive, and could be attacked in those lines. The bottom line has to be that any move to solve this problem has to come from the artists that make up these societies.

This has been a very worthwhile event so far.

Live from Harvard!

I always wanted to say that.

I will be blogging some of the hottest news from the Creative Commons summit. The first news is that the updated Creative Commons UK site is now live.

Some other interesting news is that the Creative commons generic licence will soon become the U.S licence, while there will be a generic licence that is WIPO compliant. This is a very welcome development as it helps to stress the international nature of the movement.

The most memorable snippet from the first day was the introductory videos from John Perry Barlow and Jack Valenti. Yes, you read correctly, Jack Valenti supports Creative Commons. Watch out for flying pigs.

So far there has been some interesting discussion about the international aspects of the movement. Is international iCommons an international organisation? Should it operate as one? Who chooses the representatives? What legitimacy do I have to be here?

Boston.

I'm off to Harvard for the Creative Commons Summit.

A Costa Rican representing Scotland. What is the world coming to?

Burning for fun and profit

So, the IFPI global piracy report is out. I must admit that the figures are extremely worrying, I must admit that while I have a liberal view of IP, people who sell burnt CDs are wrong. One thing is legitimately sharing, another to profit from other people's work.

Well, at least it makes sense in my mind.

Debates galore!

The CC-UK list has resurrected with some lively debate. If you are interested in following some of the arguments, visit the archive here.

OECD music downloads report

This is a very thorough report from the OECD about music downloads. It is a rather impressive document, which attempts to bring together the latest research on the subject. I haven't finished reading it, but the section about P2P networks is very balanced and well referenced.

The result is that, despite what the IFPI says, there is still no evidence that music downloads have affected sales as seriously as they claim.

What price infringement?

The mother of a teenage girl who serves and downloads music online is being charged £4000 for her daughter's infringement. This seems to be part of a clever strategy by the music industry to attack P2P networks (I will talk more about it next week after I have presented my ideas at this conference).

What I can't possibly figure out is how the music industry calculates infringment. It is very difficult to calculate damages in an online environment because a song downloaded does not equate a lost sale. Another problem is that the price for "legal" music downloads has dropped considerably, and I honestly think that this should be taken into consideration when attempting to calculate damages. For example, Napster.co.uk gives users unlimited amount to music for £9.95 a month. Music is becoming cheap, why isn't this taken into account by the lawyers?

Open vs. Free again

I have been noticing a resurrection of the "open" vs "free" debate in several lists, particularly in discussions about Creative Commons. This is rather disheartening, because I have been hoping that Creative Commons could stay away from the quasi-religious debates that have been affecting the Free/Open Source camps for years.

The proponents of Free Software and the "free" philosophy claim that their movement has more certainties and better direction than the proponents of Open Source and "open" philosophies. This may be true, but certainty is not always a good thing. Whenever I talk to free software proponents I am struck by how much they sound like religious fundamentalists, who are emboldened and guided by the certainty that they are right. I am also generally struck by the strange use of the term "freedom" in the movement, given that generally the movement advocates one specific type of freedom. People have the freedom to maintain the source code open, but they do not have the freedom to choose their own licence, this is done for them by the viral restrictions of the GPL. One cannot elevate freedom to the highest pedestal and yet begrudge those who choose to exercise their freedom, unless freedom means "you are free to do as you are told".

The Open Source patent war has begun

This has been a long way in the making, but I just found out about it due to some discussions in a couple of mailing lists and because of some research I'm conducting on software patents. I am afraid that this may be the first shot in the oncoming patent war.

The problem is that LIBDCA, an open source project part of the VideoLAN project that produces the excellent VLC media player, has received a threatening letter from Digital Theater Systems Inc. The company claims that the OSS project infringes its "invention" called DTS, a proprietary multichannel encoder that delivers high quality, low latency and high bitrate DVD audio. The technology is protected by European Patent EP0864146 and US Patent 5,956,674. I am not too sure about the technical aspects of the claim, but this seems like another broad patent claim for an audio encoder, which pretty much takes audio streams coming from one format and converts it into another, which has been deemed to be bloated and inefficient by some.

The field of software development has become a patent minefield because of broad software patents protecting multimedia standards. Take the case of the popular audio format AC-3 (AKA Dolby Sound), which has become the industry standard in recent years. Dolby became involved in a patent dispute with Lucent Technologies, who claimed that they had two patents (5,341,457 and 5,627,938) which protect technologies for encoding and decoding digital audio. These claims are as broad as you can get, and a court has initially declared that Dolby was not infringing, while they may yet be declared invalid at a later date. DTS should be happy about this development because from reading the two Lucent patents, their DTS technology appears to be infringing as well. What a complete madhouse!

It seems to me that this is more evidence against the current text of the Computer Implemented Invention Directive. We have been repeatedly told that the new directive will not lead to American-style software patents, but it seems clear that ridiculously broad patents like DTS are getting through the system with a supposed prohibition against patenting software as such. What will happen when a much broader text is adopted? We could see a flood of claims, where everything will be subject to a patent.

This case has very serious implications for open source development. Large companies like Dolby can fight some of the more preposterous claims in court, but small open source projects cannot.

London

I'm in London for a series of meetings related to the CIE.

Hunting piracy goes against data protection

Very interesting note about data protection and hunting for IP addresses of P2P file-sharing users. For a while now it has been felt that the efforts to gather data from P2P users could have adverse privacy implications and may infringe data protection. Now there is an official declaration from the data protection regulatior in Sweden.

Could this open the door for similar declarations in the UK?

More discussion about copyright term extension

Earlier this week there was a report that the UK may be considering extending copyright terms for sound recordings from 50 years to 90. The Wired article makes it clear that the UK project may be part of a wider strategy from the IFPI and the music industry to push for European change.

The problem is the arguments used to support this extension, which are blatantly about extending the period of profit-making by the music industry, this at a time where the model is under threat by new technologies. With more and more musicians choosing to use the internet to bypass the intermediary, there is a slim possibility that the market could change entirely. As evidenced by this article, there is growing criticism that some people are not so willing to listen to the inflated statistics and pleas from an industry that is doing the best to alienate their customers.

When entertainment stops being fun

I always thought that the entertainment industry was supposed to be based on making things fun. We pay lots of money to one of the most profitable industries in the planet so that they can entertain us, make us laugh, cry and sometimes even make us think. But where has all the fun gone? Fears over copyright infringement are taking fun away. Yes, I understand that these companies have to think about profits, and that they should worry about giving returns to their shareholders and investors. But why get rid of the fun?

MMORPGs are now banning users from playing anything but "canned" music in their worlds because this may be considered copyright infringement, and it could prompt a suit. I completely understand why games companies are worried about suits, but one must say that we have come to a sad turn of events when the music industry has managed to scare everybody into submission, erasing the fun that we gain from music. Music is personal, but it is also a shared experience, a social event where people are supposed to come together and enjoy the choice of song or lyrics, to provide comments about an artist, to fill silences. The moment has come where we are so afraid about copyright infringement that we have to go around tiptoeing, afraid of enjoying music. The fun has gone.

Will singing in the shower be next? I have a lifetime of doing just that. I wonder how much money I owe to Morrissey...

Statistical fallacies in cyberspace

The blogosphere has been set alight (don't you just love the word blogosphere?) by a report that first appeared in ZDNet about how iTunes is catching up with the "illegal" P2P networks. The report states that iTunes now has a total 1.7 million users, as much as the 2nd place service Limewire, and closing on first place WinMX. What has generated a lot of comments is the fact that the study only mentions WinMX, Limewire, Bearshare and Kazaa, while ignoring EDonkey, which boats 4.1 users at any time. The list can be found here.

The problem that I see with this report, and many other similar reports that get their facts wrong, is a combination of many different factors. Firstly, I it seems that some statistics about online trends and phenomena displays some ignorance about the target technology. A study about P2P traffic that ignores the largest network, and the emerging technology such as BitTorrent seems ultimately flawed.

Secondly, the problem with statistical analysis of the internet is the fact that it is an entirely different network, at a scale that we have not seen before. Certain survey tools, such as representative studies, will simply not show the real trends taking place online. The reason for this is that the internet is a power network, where the trends are set by a small number of websites and hubs. Market analysts will have to change their methods adequately.

Microsoft loses on software patent

Microsoft has lost a patent infringement suit in California in a case brought by Guatemalan inventor Carlos Amado, who has obtained $9 million USD (not nearly as much as the $500 million USD that he had asked for). The claim deals with U.S Patent 5,701,400, a patent that protects a "Method and apparatus for applying if-then-else rules to data sets in a relational data base and generating from the results of application of said rules a database of diagnostics linked to said data sets to aid executive analysis of financial data". In other words, it is a patent that protects the linking of a database program with a spreadsheet application, such as the linking of Excel data into Access.

The "invention" was filed in 1990, and Mr. Amado offered to sell it to Microsoft (or perhaps licence it, the reports are unclear on this point). Microsoft refused, and eventually Mr. Amado sued Microsoft for infringement, as they had eventually included this linking function into Office. Microsoft claimed that they had started working on this function before Mr. Amado had filed his patent, and that "its own engineers started developing technology linking Excel and Access as early as 1989 and that it never infringed on Amado's patent."

Although I may be the type of person that would not shed a tear for Microsoft, I must admit that this is just another example of why software patents are so wrong. It doesn't matter that Microsoft had been working on some interoperability function between two of its own programs, what matters is that somebody beat them to claim for a patent, and that this was broad enough to ensure a successful claim.

I just hope that this will serve to awaken large software manufacturers, and that they will finally realise that the software patent racket is perhaps not worth it.

Open Access Law Program

This is part of the Science Commons project that encourages the adoption of open access principles in legal publishing. It seems like legal academics should be at the forefront of the open access debate by practicing those principles and negotiating harder with publishers to retain copyright and be able to maintain publishing rights on repositories and research networks like SSRN.

Thankfully, we at SCRIPT-ed are at the forefront of the change taking place in legal publishing by providing a quality journal fully compatible with open access principles.

Ironic anti-spam site

(via Andrea Matwyshyn and Lilian Edwards). This is quite an ironic problem for an anti-spam site. The Anti-Spam Research Group (ASRG) of the Internet Research Task Force (IRTF) used to have a wiki, until it had to be shut down due to continuous abuse by spammers.

Yes, wikis are well-known vulnerable targets to spammers. This in itself poses many interesting questions about the viability of wikis. With the exhuberantly humongous success of Wikipedia, wikis have demonstrated that they have tremendous potential as a communication tool.

Extending copyright terms

The new minister for the creative industries, James Purnell, has announced that he plans to introduce and extension to copyright terms to match those in the United States. While the article doesn't mention it, I am guessing that this means an extension to copyright in sound recordings, which is currently 50 years. The plan is to extend terms to 90 years. "Why is this needed?", you may ask. The reason is that the extension would be "a way of generating more money for the record industry, which would use it to discover new talent." Amazing. You need to extend copyright in sound recordings so that the industry can spend it in the difficult task of going to bars and scouting new acts. I knew that drinks are expensive in bars, but this is ridiculous.

At least the industry has changed its tune. It's no longer "poor us", at least they admit that this will increase profits, and that the profits are there to be increased. I still smell a very heavy lobbying process behind this. The best part of the article is this:

"“The label Cool Britannia gave the impression that the policy was about supporting an elite in London. But the last five years have shown that creative industries are central to regeneration,"” he said "“You only have to look at Manchester, Gateshead or Liverpool to see how these sectors generate jobs and civic pride. We do not want to be in a situation in 30 or 40 years'’ time when [these industries] are talked about in the past tense like shipbuilding."”

You heard it here first. Liverpool and Manchester owe their regeneration to The Smiths and The Beatles.

So many jokes, so little time.

And now for something completely different...

World Wind is an open source project from NASA that provides satellite images from around the world. Although the resolution is not the best in many places, it is an amazing tool, and users can add their own plug ins. This is what open source is good at, and it is nice seeing NASA releasing something useful to the SourceForge community.

Now, back to looking for Costa Rican cities.

IBM and SUN are the real bad guys

I go away for a few days and when I come back I find that everything has been turned on its head. IBM and SUN are the bad guys, they are exploiting open source projects and using them as cheap subcontractors of American multinationals, according to Jesus Villasante, the head of software technologies at the European Information Society and Media Directorate General. The controversial speech included other strange declarations, such as the statement that there is no European software industry, that open source is in disarray, and that software patents are bad.

I must admit that while I do not agree with some of the comments, there may be some room for concern over the corporate strategies of some open source-friendly companies. Companies like IBM are not supporting open source out of the kindness of their hearts, they are using OSS as part of a strategy to break Microsoft's dominance over the software market. With stories about IBM's economic problems, it would not be difficult to believe that IBM could eventually change their strategy and become opposed to open source.

Nevertheless, there is a feeling that open source is going mainstream. When the Financial Times has a comment stating that open source is good, and has business potential, it should be noted that the movement has finally matured and has left some of its "communist" image behind.

Away

I'm in sunny Alicante for the rest of the week.

BitTorrent goes search

Bram Cohen, the maker of BitTorrent, must be a brave man. He has created a torrent search site in the main page of Bittorrent.com, probably setting himself as the next target for overzealous copyright bozos. The website does not filter materials subject to copyright protection, I just searched for "Episode III" and found various copies of the infringing file (forgive me George for I have sinned).

So, the legal argument about P2P search sites will have to take place, and will eventually have larger implications for the internet. The new BitTorrent search does not share infringing content itself, if you search it will simply point to you to a site that does not host the content either, it only hosts a file that tells you where the seeds are, and the seeds are not the file itself, the file is being shared by various users online. The legal question for me is this: does a link to a site that tells you where the infringing material can be found is in itself infringing? Before you answer, use Google and search "episode iii bittorrent" or "episode iii torrent". I found at least 5 sites with the file through that. If the MPIAA sues BitTorrent, a suit against Google should follow shortly.

Google Print beta site live

So, Goggle continues its unstoppable take-over of the world (thanks to Mike Collins for the link). Google Print is the service by Google that allows users to search full text books, and also get information about books and authors, and eventually would allow you to read the entire work online. Google is undertaking a massive project scanning books, which would mean that the real life libraries of the world will be available digitally. This is useful to look for references and research, but I cannot see people leaving printed books yet.

One thing worries me, and it is that at the moment there seems to be a preponderance of English titles. I searched "Don Quixote"and found the book in English, but then I searched for "Don Quijote" and did not find it in its original Spanish. I searched the immortal opening words: "En un lugar de la Mancha, de cuyo nombre no quiero acordarme", and it failed as well, but I found some interesting books on quotations. If one of the greatest works in literature is not scanned in its original language, I am afraid that it demonstrates that the online tyranny of English will continue.

On a minor note, the English translation of the opening line of Don Quixote entirely changes the meaning of the phrase, and misses the beauty of the original.

Technological solutions vs Law

Countries around the world are scrambling to regulate new types of technologies and perceived threats. New legislations are being passed to attempt to curb phishing, spamming, denial of service attacks, defacement and all other sorts of dangerous and annoying practices. But with these efforts, one has to ask the question, are these legislations useful? Has any anti-spam law stopped one single spam coming through my inbox? I seriously doubt it. What is really working against spam is the use of technological filters.

The same may be true for phishing. There is a new toolbar by Netcraft that blocks known phishing sites. This seems the way to go, instead of wasting valuable legislative time on things that can be solved with filters and blockers.

BitTorrent servers seized by the FBI

The FBI, U.S. Customs and the Department of Homeland Security (talk about overkill) have raided a BitTorrent network called EliteTorrents, and seized servers and computers, and arrested a group of "copyright thieves". Now, if somebody goes to the EliteTorrent site, they will find a warning from the FBI. The FBI agent informs us that "When thieves steal this data, they are taking jobs away from hard workers in industry, which adversely impacts the U.S. economy." I really want to see the evidence for this argument. Has there ever been a single job lost due to P2P and downloads? I really want to know. Unsurprisingly, the report is peppered with similar rhetoric. And guess who makes an appearance?

"The content selection available on the Elite Torrents network was virtually unlimited and often included illegal copies of copyrighted works before they were available in retail stores or movie theatres. For example, the final entry in the Star Wars series, "Episode III: Revenge of the Sith," was available for downloading on the network more than six hours before it was first shown in theatres. In the next 24 hours, it was downloaded more than 10,000 times. "

Yes, and we already know that Episode III has done terrible business, right? Anyway, I was looking at the U.S. Department of Justice website, and I found it incredibly Orwellian. It has a terrorist attack threat meter, which informs us that the threat of a terrorist attack has been increased (yellow at the moment). It also has a section called "Life and Liberty", which was "launched to educate Americans about how we are preserving life and liberty by using the USA PATRIOT Act." I have a shiver coming down my spine.

Save George, boycott BitTorrent

Poor movie producers. Poor George Lucas. BitTorrent threatens the very existence of filmmakers when evil internet pirates download their movie. Yeah, right.

Star Wars Episode III has come out (I loved it by the way), and it has made an astounding $158.4M in 4 days! This is now the weekend record, shattering Spiderman 2's opening weekend. Yet, we are asked by movie executives to feel bad, feels sorry, there's a disturbance in The Force. Some people have released pirated versions of the movie online, and they are being sold everywhere! Adequately, some people are asking themselves so what? Star Wars will still make gazillions and George Lucas will not have to beg on the streets. I mean, the MPIAA and their ilk really must think that we are stupid. "Beware!" they tell us. "Here is the largest blockbuster movie of all time, it will make everyone involved very rich, but there's a 17 year-old downloading the movie somewhere, this is theft and it must be stopped at all cost!"

Sigh!

Software patent debate

This is a lengthy and amazingly well-informed debate about software patents in Europe from Lessig's blog. Seeing who the participants are, this should come as no surprise. It is nice to see some of the best proponents of software patents (I refuse to use the euphemism in vogue) argue their case against some well-informed opponents. One of the main criticisms that I have against the critics of software patents is that often they use over-simplifications of the arguments. I understand that it is difficult to convey the nuances of the EPO's board of appeal rulings to the masses, but using downright fabrications is not the solution.

To me, the case is still an economic one. What is the economic case for software patents? Is there a real need for software patents in Europe? I maintain that the answer is negative.

Piracy still a problem according to BSA

So, the new report from the BSA is out with its dire warnings about how piracy is threatening the very fabric of civilisation, supports terrorism, creates unemployment and recession, and steals one sock from your sock drawer. This would be amusing if it wasn't for the fact that the software industry has failed to collapse despite the horrendously pessimistic report issued year after year, and that Mr. Gates still gets a very hefty sum at the end of the year.

The problem with these reports is that they rest on two failed assumptions to calculate "losses". First, they use a fictional price of software, failing to understand that comparative prices of software around the world vary wildly. The second major flaw is that the study assumes that every infringing copy represents a lost sale. This is evidently absurd, and it's surprising that they still use it. People who copy Adobe Photoshop from the internet will almost certainly not buy it. People who buy MS Office from a market stall in Peru are not likely to buy the full copy. In fact, software giants like Microsoft have relied heavily on piracy to make sure that people are using their software at home and at work, creating a Microsoft client culture where there are no alternatives.

As long as the industry keeps assuming that we can't think and see beyond their bogus figures, they will not make any advances.

More on Google's dominance

Two days ago I commented on the worrying developments regarding Google's Web Accelerator. This could have serious consequences, see for example this spoof site about Google's Content Blocker (thanks for Anne-Kathrin for the link). I recommend reading their privacy policy, where it states that "Google is committed to collecting every bit of data that it possibly can, and storing it forever." I am coming back to this because I'm reading an excellent book called Linked: How Everything Is Connected to Everything Else and What It Means for Business, Science, and Everyday Life by Albert-Lászlo Barabási. This is a brilliant book about the science of networks, and it explains the reasons behind phenomena like six degrees of separation and Pareto's 80-20 rule.

In short, Barabási's argument is that networks respond to certain rules that apply almost universally to things like quantum physics, the internet and celebrity links. Networks are not random, they grow at a specific rate, in which the older hubs have the advantage because they can develop the largest collection of links, but also there are hubs that acquire links at a faster rate, and can overcome older ones (fitness of hubs). Because society is a network where each one of us is a link, there are people who collect links faster, and this serves to prove the observation that the rich get richer. If we think about this in internet terms, Google was not the first search engine, but it obliterated its competition because it had better fitness. Why is Linked important for Google? The thing is that Barabási's mathematical proofs can have a strange effect, and it is that in some instances, it can lead to a collapse of competition, and the winner takes all.

According to Barabási, this occurs in physics with the application of Einstein-Bose equations about gases, and his claim is that this applies as well to other networks. If this is true, then what we are seeing with Google is not only predictable, it may be inevitable.

It's Star Wars, man!

The circle is now complete. For those of us in Generation Jedi, the next few days will see the end of a story that has provided the cultural background to some of the most important events in our lives. We are a generation of thirty-somethings whose first great experience was to see Star Wars (sorry, Episode IV: A New Hope) with our dads. Then came the toys, the watches, the duvets and the life-long practice of giving our money to George. Empire Strikes Back gave us the greatest shock of our early lives, it was darker and smarter than the first movie, and had the most amazing plot twist in pre-internet days ("Luke, I'm your father"). We all shouted with Luke "NO!", and our innocence was lost. With Return of the Jedi we were old enough not to be too impressed with the Ewoks, we realised that George was fallible, and then there was the golden bikini, puberty had arrived. The following years were largely Star Wars free, but we still remembered and looked for the same thrills elsewhere.

Then the internet changed everything, we found out that there were millions of us out there, working in technology companies and fuelling the dot.com bubble. The internet came with fandom, screen savers, ASCII reproductions and computer backgrounds (mine used to be mostly Star Wars oriented). Then George realised that there was more money to be made, and he gave us the Special Editions, and started work on the Prequels. Episodes I and II came, Generation Jedi was not amused, Jar-Jar and silly love dialogue just didn't do it for us. Could it be that *GASP* we had finally grown? Were our childhood memories, well, childhood memories? Were we giving Star Wars more credit than it deserved? We doubted, George had joined the Dark Side.

Word on the internet is that George has redeemed himself with Revenge of the Sith. We can only hope.

This is the end of the Web as we know it...

and I feel fine. I am not truly sure what to make of this, but it sounds Important. It seems like Google has created an application called Google Web Accelerator. This is a small application that is supposed to allow people to load pages faster. How does it do it? It acts as a proxy client, where popular pages are stored in Google machines and other clients serving files. According to Google, this is done by:

• Sending your page requests through Google machines dedicated to handling Google Web Accelerator traffic.
• Storing copies of frequently looked at pages to make them quickly accessible.
• Downloading only the updates if a web page has changed slightly since you last viewed it.
• Prefetching certain pages onto your computer in advance.
• Managing your Internet connection to reduce delays.
• Compressing data before sending it to your computer.

This is good, right? Hmmm... perhaps not (some are already boycotting Google). One possible result would be that Google would have unlimited control over what you see, and the web would become the World Wide Google. Well, it already is in many ways, but such control makes me feel a bit uneasy, sort of what I would feel if I was a citizen of the Republic and was reading news that Chancellor Palpatine was gaining more control over the government.

Developments such as this prompts me to ask about the accountability that such huge power entails. Legislators do not have any idea of how the internet works, and they generally respond with silly, misguided or inefficient regulation that does nothing to solve any problems whatsoever. Has anybody stopped receiving less spam as a result of the many new and shiny laws that forbid it? No, the solution so far has been technical, not legal. The web is about to change, and a few companies are about to obtain ultimate power. Trust regulators to miss this development and pass new anti-piracy legislation, because the only real danger online is a 15 year-old downloading a song.

Thought Thieves

Just when you thought that the Microsoft Corporation did not have a sense of humour, you read this, and it brings a smile to your face. Check out the Thought Thieves competition, where you can win £2,000 worth of film and video equipment vouchers (Vouchers? What's up with Bill Gates? I want hard cash!). The competition says:

Thought Thieves is about people stealing and profiting from your creation or innovation. Think about it: how would you feel if you saw your hard work being passed off as the property of someone else? What would you do?

Funny, I thought that was the entire basis behind the GPL and Free Software.

Collecting societies against Creative Commons

This is a very worrying development for Creative Commons. CISAC, the International Confederation of Societies of Authors and Composers (which brings together 207 authors' societies from 109 countries); has published an article heavily criticising Creative Commons. They are quoting Emma Pike's article against CC, and pretty much using the same FUD that has been already used against the movement, you know, we are all a bunch of hobbyists and bored academics; and "real" creators who want to profit from their work should not use any sort of CC licences.

I still don't know for sure where the animosity from these people really comes from, but I have my suspicions. It seems evident that the most vocal attackers of the Creative Commons model (and of open licences in general) are the intermediaries, such as the collecting agencies. These societies rest on the assumption that they are the only representatives of creators, and their profits rely on this idea being maintained. But what happens if creators take a more involved approach about their copyright? Then the middle-men lose their role. If we all become publishers, then the reliance on collecting societies vanishes. Am I being naive? Probably, I'm just an academic, so my opinion doesn't really count in the real world, according to these people.

BBC opens RSS content

(thanks to Lilian Edwards for the link). The BBC is now opening its RSS content for syndication. Web designers can now syndicate BBC content on their own websites with much less restrictions than before. If you wanted to add one of the many BBC feeds to your blog or website, you had to contact the BBC and obtain permission to do so. Now, feeds are being published with a new open licence that allows users to include the feeds without prior permission, as long as the website fulfills the following conditions:
- the site is not blacklisted by the BBC (porn, racism, terrorism);
- displays prominently that the content comes from the BBC;
- the content is not offered for a fee;
- provides a working link to the news item.

This is a novel open licence. Somehow akin to a Creative Commons Attribution-Non-Commerical licence, but with the added elements of linking and not allowing use in restricted sites. This serves as further evidence that the BBC is now one of the major players in the open licensing movement.

Social roles of virtual communities

Browsing randomly on Google Scholar (as one does) I found an excellent article about social roles in electronic communities. It describes several types of personalities that can be found in online fora:

Celebrities - Prolific posters who spend a good deal of time contributing to the community. Celebrities define what the community is.

Ranters - Prolific posters that have only one or two issues.

Lurkers - Readers who rarely participate (if at all). Apparently, lurkers are the silent majority, happy to read but not to write. Some celebrities may turn lurkers after a while.

Trolls - Trolls write inflammatory messages to elicit a response and create problems for the community. They tend to have various sock-puppets.

Flamers - Aggressive posters.

Newbies - The interesting thing about newbies is not the newbie himself/herself, but the way in which the community reacts to newbies. Some communities accept newbies, while others are suspicious of them.

Speech Communities - Groups that share the understanding of specific terms.

Linkers - People who provide no text, only links.

I find this relevant to the law because I am interested in how virtual communities organise themselves. The article says that there is some correlation between what the elite thinks (the celebrities) and what is going to be considered accepted behaviour by the community as a whole. This would suggest a type of online aristocracy in which the rules are set by the ruling and visible elite, while the silent majority complies.

Patenting Lives call for papers

I have attended another meeting of the Patenting Lives project, some interesting discussion took place (will be writing about some of it later on). During the meeting we discussed the Patenting Lives Conference. Here is the call for papers:

The Conference of the Patenting Lives Project will be held in London, 1-2 December 2005. Further details will be available on this site soon, as well as a formal call for contributions including:

- poster presentations
- papers
- panels and roundtables
- artistic contributions

Please check this site again, or to express your interest and receive the call for contributions, please contact:

Dr Johanna Gibson
Project Manager
j.gibson@qmul.ac.uk

Queen Mary Intellectual Property Research Institute
University of London
John Vane Science Building
Charterhouse Square
London EC1M 6BQ
United Kingdom

U.S. Congress looking at possible patent reform

This article in the Washington Post tells us about the plans to reform the U.S. patent system, because it is now felt that the system is suffering from too many patents awarded, and too few are not being awarded.

There are those who want Europe to go the way of the United States in software patents, for example, an online patent commentator recently expressed that Europe should adopt American -style software patents because "software patents help small companies, and better quality software patents sends the innovation information signals needed to improve industry economics and progress." However, anybody who looks at the American system in an unbiased manner, will have to admit that the system is broken (I recommend again the excellent book "Innovation and it's discontents"). But don't take my word for it, look at these patent beauties: IBM's patent 6,585,776 for "displaying hypertext documents with internal hypertext link definitions", which in my view, is a patent on styling HTML HREF tags; or Google's patent 6,839,702, a patent that protects a system which "highlights search terms in documents distributed over a network", in other words, a patent for putting search results in bold. Or as the article in the Washington Post points out:

"Even Bruce R. Chizen, chief executive of Adobe Systems Inc. and chairman of the Business Software Alliance, which is leading the charge for the technology industry, acknowledges that allowing software patents in the 1980s was a bad idea. But Chizen argues that it's too late to turn back now."

Interestingly, Europe may actually be listening. I have finally managed to read the document by MEP Michel Rocard presented to the Committee on Legal Affairs (JURI), entitled "Working Document on the patentability of computer-generated inventions". It is an excellently argued document, measured and intelligent. It actually does away with the patentability of software per se, and offers a very strict definition of what can be patentable and what is meant as "technical effect". We will see if this view prevails when the vote finally takes place.

Open Access 1, Celera Genomics 0

In an article in Nature (Marris E, "Free genome databases finally defeat Celera", Nature 435, 6 available only under subscription), it is reported that Celera is finally giving up some of its proprietary database practices, and will make available all of its genetic data through the U.S. National Center for Biotechnology Information databases. This is an incredible result for the open access movment, and for all of those who are offering genetic data online free of charge. Celera has been deemed as one of the "bad guys" in IP, with their doubtful behaviour in the race for the human genome, and their filing of excessive number of biotechnology-related patents. It would be fair to assume that the free and open access databases have had and effect on this part of Celera's businness, and has prompted them to clean up their act and finally offer some data online for free. Celera going open access? What is the world coming to?

P2P: Still going strong

Data still seems to indicate that P2P networks are gathering more and more people. For example, Slyck.com has been monitoring P2P network since 2003 and the chart shows a steady increase in numbers (the data does not include torrent statistics):

At least the music industry has stopped claiming that P2P networks are diminishing in numbers, which they tried earlier in the year, and were shut down. This report by the IFPI claims that litigation against users is working because:

"...there can be no doubt the campaign is having an impact. File-sharing is being contained: traffic on P2P networks which would have spiralled out of control a year ago has, in fact, began to slow down. Meanwhile legal ways of enjoying music online have taken off. People have begun to explore and enjoy the legal online music market in earnest."

That page also gives us a profile of the average downloader. The average P2P user is aged 25 to 35; is a teacher, public sector worker, IT or a student; and lives in large towns or cities. Rats, I've been found!

May the Commons Be With You!

Star Wars fandom has always been sophisticated. Does anybody remember Troops? Then there are other great ones, such as Jedi Hunter (Crikey!) and many, many others. Now there is a new and sophisticated kid on the block, Star Wars Revelations, a fan movie produced with $20,000 telling the story of surviving Jedi between episodes 3 and 4.

The interesting part about fandom is that strictly speaking, it is copyright infringement, but the copyright industry has learnt not to enforce it, afraid that if they clamp down on it, they will alienate their fans, who are the ones buying their products anyway. This has prompted Clive Thompson from Slate to argue that Star wars should go Creative Commons. It's an interesting idea, as this is actually what is taking place at the moment. Or there is another option, we could draft a a "fandom" licence.

Creative Commons FUD

It was meant to happen sooner or later. Creative Commons is now a target of Fear, Uncertainty and Doubt (FUD). The Register has this interesting comment on a panel debate discussing CC licences. According to the report, the ex-chairman of the British Phonographic Industry (BPI), Fran Nevrkla, described CC licences as the product of “learned professors living in rarified luxurious environment supported by public funds”. He has obviously been to my office (note the tone of irony and bitterness in my typing). Emma Pike, the director of British Music Rights even recommended musicians to use Kazaa rather than Creative Commons. Somebody must be afraid. Mind you, this is the same Emma Pike who wrote this, where we are told that the only musicians who should ever consider CC are hobbyists, Gilberto Gil and David Byrne.

Something that bothers me about these types of attacks is that they are uninformed, and based on the assumption that there is something wrong with people who are willing to offer their work under different conditions to the same old proprietary model that only benefits a few lucky creators. I think that some of these industry-types are truly baffled by those who do not want to live their lifestyle an continue to accept the myths about the struggling writer and the garage band that will be affected if we don't have more IP protection.

Update on GPL case

The case reported two days ago about the GPL has been settled, and Fortinet has agreed to comply with the GPL. This means that Fortinet's software will be distributed with the GPL, the standard terms of agreement will be changed, and the source code will be offered upon request for the cost of distribution.

A victory for the good guys (or a victory for the godless communist anarchists, depending on your point of view).

DVD protection ruled illegal in France

The Paris Court of Appeals has ruled against the copy protection mechanisms included in DVDs, called Content Scrambling System (CSS). Not too long ago the same mechanism was being enforced in American and Norwegian courts, and now they are declaring that the technology is a bit dodgy. The case was brought by a French man who wanted to transfer his copy of Mulholland Drive into VHS format to watch with his mother (I will not make any wise comments about how unwise it is to watch a David Lynch movie with your parents). He was not able to do it because of the copy protection built-in the DVD, so he brought a case against Les Films Alain Sarde and Studio Canal. The court apparently has ruled that copy-protection is incompatible with private copying rights. The court also found that the labeling on the DVD is inadequate, as those with copy-protection have small CP letters, and this might confuse consumers.

It is quite refreshing that we are getting a number of progressive rulings on intellectual property around the world. Is it possible that courts are finally understanding that copyright owners have been getting all of the protection that they want for far too long? James Boyle has an excellent article in FT.com deconstructing the stupidity of some IP protection. Copyright industries have gone unchallenged for too long. Viva la Revolución!

GPL granted an injunction in Germany

German courts continue to give credence to the GPL. A software company called Fortinet developed several security products, including firewall and anti-virus software. This was supposed to run on something they called "FortiOS", which they claimed was their own operating system. The problem is that this operating system was actually largely based on the Linux kernel, which is licensed through the GPL. Not only did they do this, but they tried to hide this fact through encryption. GPL-violations.org sent a cease-and-desist letter, but Fortinet failed to sign it. Free Software advocates then asked for an injunction against Fortinet in the Munich district court, where they have obtained a preliminary injunction banning Fortinet from further distribution of the offending software until they are in compliance with the GPL.

This is welcome news, and continues to erode the arguments of those who think that the GPL is not valid (usually made by Microsoft and its minions). I am also struck by how the German courts are so willing to embrace the GPL, as they have done before. I remember being in a conference where a German professor assured me and the audience that a German court would never find the GPL enforceable.

Enter the virtual economy

Sony is about to open Station Exchange, a shop for virtual goods in Everquest, one of its most popular online computer games. The idea behind the website is that users will have a sanctioned site where users can exchange their game goods. For example, if you buy a level 50 character, or a Flaming Sword of Justice™™, then you can do it with the certainty that you will indeed receive the items and will not be subject to a scam, which apparently happens in "unsanctioned" auction sites. Online auction sites are filled with the sale of virtual items that are only available to players that have put a lot of time and effort in obtaining them. These cost money, and there is a real-life economy of virtual goods and characters. The real reason for this new site is that Sony has realised that there is money to be made here, and they want a piece of the action.

There is little doubt that the virtual economy is growing. According to Terra Nova, the virtual economy is worth between $4 billion and $7 billion USD, equivalent to the economy of Namibia or Jamaica, depending on which figure you take. I must admit that I am extremely skeptical about these figures, so I will reserve my comments until there is a more thorough study conducted. Regardless of my doubts, the value of the virtual economy is significant.

Google and more privacy threats?

When did Google join the Dark Side? It is difficult to say. One could argue that they took the first step with GMail, but I think that it happened when it became the de-facto internet search engine and obliterated its competition. Now Google has a new service that should send shivers down privacy advocates' spines. You can now login to Google and keep track of your searches. I don't know about you, but I will never sign up to something like that because I think that my web searches say too much about me. Yes, I have lots of searches on Anime and computer games and the such, but my preoccupation is much more basic than worries about typecasting and geek stereotypes. Internet searches would record anything: your shopping patterns, how much time you spend researching about a subject, your tastes, preferences, likes and dislikes, who are you keeping an eye out for, political and sexual preferences, bittorrent searches and the like. Too much power, and I cannot trust Google anymore not to sell that information to data miners.

Nigerian scams go glurge

This is probably not a Nigerian scam, but I don't know how else to call it. I received it yesterday, and was struck by the change of tactics from scam writers. People are now better informed and will instantly be suspicious of any offer from dodgy bank officials from Ouagadougou, or former Baath-Party politicos from Iraq looking to deposit Saddam's gold in your account. This new scam I think is playing to the glurge gallery (Glurge is the term used by Snopes to refer to sickly-sugary emails that are sweetly disgusting, like the Alaska one). This email plays on religious feelings in a strong way:

Hello,
My name is Mrs.Jennifer Wilson I am a dying woman who have decided to
donate what I have to you/ church. I am 59 years old and was diagnosed
for cancer about 2 years ago,immediately after the death of my husband, who
had left me everything he worked for.
I have been touched by God to donate from what I have inherited from my
late husband to you for the good work of God,rather than allow my
relatives to use my husband's hard earned funds ungodly.Please
pray,that the good Lord forgive me my sins.I have asked God to forgive me and i
believe he has because He is a merciful God. I will be going in for an
operation,and i pray that i survive the operation.
I have decided to WILL/donate the sum of $1,500,000 (One million five
hundred thousand dollars) to you for the good work of the lord, and to
help the motherless,less privileged and also for the assistance of the widows.
At the moment I cannot take any telephone calls, due to the fact that
my relatives are around me and i have been restricted by my doctor from
taking telephone calls.presently,my WILL have been adjusted and my
lawyer has been notified.
I wish you all the best and may the good Lord bless you abundantly, and
please use the funds well and always extend the good work to others.
Contact me through this email address jenniferwilson59@rushpost.com if you
are interested,so that i can feed you with the information on how to
claim the funds of($1,500,000.00).I know I have never met you but I have
been directed to do this by God,and i hope you act sincerely.
NB: I will appreciate your utmost confidentiality in this matter until
the task is accomplished,as I don't want anything that will Jeopardize
my last wish, due to the fact that i do not want relatives or family members
standing in the way of my last wish.

Regards,
Jennifer Wilson

I think that I need an Alka-Seltzer now.

WIPO Seminar on Copyright and Internet Intermediaries

Colleagues Charlotte Waelde and Lilian Edwards were the keynote speakers at WIPO's Seminar on Copyright and Internet Intermediaries. The preliminary reports from the seminar are quite interesting. For example, EDRI-Gram has a comprehensive review of the proceedings (not online yet at the time of writing this), but it has a very good write-up about what my two colleagues did (congratulations Lilian and Charlotte). The report says:

The opening keynote speeches by Lilian Edwards and Charlotte Waelde from the AHRB Research Centre in Intellectual Property and Technology of the University of Edinburgh provided the audience with an excellent overview of all the issues related to provider liability for content provided or shared by their customers. Edwards started with the problematic definition of 'service provider', which now also includes online auctions, search engines, RSS feeds, blogs, chat-rooms and price comparison sites. In the period leading up to the year 2000 governments were hesitant to regulate liability, fearing it would disturb the nascent market. But after 2000 the market was mature enough and governments and the entertainment industry were dissatisfied about the lack of self-regulatory solutions. The EU E-commerce directive from 2000 then forced a compromise by distinguishing in possible liability for hosting third party content and no liability for mere conduit and temporary caching. Charlotte Waelde analysed the jurisprudence of the different court cases against producers of P2P software, both in the US and in the Netherlands. She concluded that it is crucial for the liability question in P2P cases to determine whether the ISP is somehow authorising the infringement, or whether an ISP is entitled to presume that facilities will be used in accordance with the law.

Very interesting stuff, I can't wait to hear more about the meeting.

P2P activism, boycott music and DVD sales

This is a call to arms to all of those who have ever downloaded content from the internet not to buy any music or movies during the last week of April (25-30 April). The intended outcome is to demonstrate that music downloaders are a powerful buying force, and that if they decide to boycott the music industry, this will be felt in some way or another. I am not sure how they are intending to measure the effect of the campaign, but I am supporting them. So, wait until may to buy your new DVD.

Virtual Worlds, New Worlds?

(N.Y. Times article, you know what to do). This article deals with the making of Tho Fan, a new language created specifically for the computer game Jade Empire. The language joins Klingon and Elvish (sorry, Quenya, Sindarin and Telarin) as one of the growing number of invented languages created to give fiction more depth. It is interesting that language is so important to lend credit and depth to a story; possibly because language often shapes how we think and how we explain the world around us.

To me this is just another example of the cultural significance that computer games are acquiring in modern society. There can be little doubt now that games are now an art form, as worthy of scholarly interest as movies, theatre and dance. Games are increaingly displaying sophisticated storylines, character design, interactivity and complexity. I would even say that games have a greater potential than many other art forms. For example, in film and theatre you are presented with sealed stories that you must accept as given. With games, you are often the protagonist, and you may actually write your own story as you go along. Better AI and more complex gaming options allow gamers can choose how a story or a character develops. Then, there are huge virtual worlds in the shape of MMORPGs where users can interact with people from around the world (or from the closest server).

Does this have anything to do with the law? It could. To me, the most interesting thing about games, and particularly about MMORPGs, is that they are a large experiment on regulation and law-making. How do people deal with a vast new online world where they can do what they please? Do players revert to the basest human impulses and descend into anarchy? Does altruism exist in virtual worlds? How do players regulate their actions? Do they rely merely on the game makers to act as law-makers? Are there different social norms that affect virtual players? Does the architecture of the game determine the behaviour of the world?

Mixed reaction to Creative Archive

The advertisement of the Creative Archive has raised a bit of a stink amongst certain circles. There are some neutral reports, like this one in Wired, or the one in The Guardian. The CC-UK list has given the licence a lukewarm reception, with downright negative vibes coming from the Friends of the Creative Archive list. Others have concerns that the licence is not compatible with Creative Commons (one may want to ask "so what?"). Others have concerns about the No-Endorsement clause.

I am slightly concerned about the snipes from the Creative Commons orthodoxy about a new licence model. Why should the BBC follow the CC model if it doesn't fit? To me it is much better to have loads of content released under an open licence, whatever that licence may be. I do not believe that all free and open source software should use the GPL, or the BSD licence; one of the great things about open source is that you can choose your licence. I am afraid that the open access and creative movement may be moving towards the monopoly of Creative Commons and the use (and abuse) of McLicences. Compatibility is nice, but complaining about breaking with CC orthodox belief is just silly.

Good reading on open source

There are several links that I want to highlight about open source software in general. First there is the ongoing "A history of Free and Open Source by Peter H. Salus, who is serialising the book in Groklaw. Here is the introduction. Then there is a good article about the SCO case by Groklaw's Pam Jones. Then (courtesy of Anne-Kathrin Kuehnel), there is this online book in Spanish called "Software libre; técnicamente viable, económicamente sostenible y socialmente justo" by Jordi Mas i Hernández. Looks like a good introduction, but it is a bit basic for those already familiar with the subject.

P2P traffic unaffected by suits

There have been claims by the music industry that suing users works, and that there has been a decrease in P2P use. This is not supported by the facts. According to a new study, P2P network traffic rivals normal web browsing, and the P2P traffic in North America has been unaffected by the suits. Moreover, there appears to have been an increase as the publicity brings more people to see what the news are talking about.

This is deliciously ironic. The RIAA and the MPAA are actually increasing file sharing. Priceless.

Creative Archive Licence, a blow to Creative Commons?

The Creative Archive Licence(CAL) is now online. This is an open licence from the BBC, the BFI, the Open University and Channel 4, and it covers a large amount of works owned by those four institutions which are offered for the purpose of reuse and adaptation, in other words, they empower the mix culture.

CAL is a very nicely drafted licence. It emanated from the fact that the BBC was not able to use Creative Commons licences in order to release their footage because they needed a licence that was jurisdiction specific (or more precisely, jurisdictions specific). I am told that this is because the BBC has a duty to provide content to licence-fee payers, but it actually makes money from international licensing of its archive (yes, I remember seeing Dr. Who in Spanish). Nevertheless, the CAL is heavily influenced by the Creative Commons licences - CC allows their licences to be modified without their consent, but they cannot call themselves "Creative Commons".

The licence allows reuse and remix by letting users copy, share, create derivative works and copy and share them on any platform and in any media. The licence has 5 elements (instead of CC's 4 elements). CAL allows the copy and reuse as long as it is not distributed for commercial purposes, it is distributed under the same licence, the author is credited, there is no endorsement or derogatory treatment, and it is only shared in the UK. These two last elements are the novel ones in CAL, particularly because CC licences are not territorial (but offer choice of law clauses), and this one is very territorial.

What I like particularly about CAL is that it really thinks hard about some elements that Creative Commons does not go into, and this is the pesky problem of non-commercial abuse. This has been eloquently expressed by Bill Thompson, both in his column and in a recent panel meeting in Edinburgh. This is particularly important for public works, which could be abused by using them to promote all sorts of purposes that may go against the public interest. The example is always used of the BNP using works distributed with a CC licence. While I agree that dealing with the moral element is an important advance in open licensing, my concern is that this adds a rather problematic subjective element to the licence because it states that the work cannot be used if it brings the owner's reputation into disrepute. This is clear if the BNP uses my photograph to warn about the swarm of Costa Rican academics invading Britain, but it may not be so clear in other circumstances. What if the owner doesn't have a sense of humour, and the work is used in a comedy setting?

Nevertheless, this is a very good step, and it shows that customisation of licences is the way to go. Trying to get everyone in the creative industries to choose the same licence is like herding cats.

IBM continues its good work with software patents

(NY Times link, remember to use Bugmenot). IBM is opening up its intellectual property. Yes, this is similar to the much publicised legally binding promise of non-enforcement issued last January, but it goes further, and it provides a serious philosophical shift about how companies should use their intellectual property. IBM is prepared to rethink the way in which it does business by making sure that basic technologies and standards are kept open, so that the entire industry can innovate at a faster rate.

I think that industries are finally realising that they cannot continue as they have been. The rise of the patent troll has generated understanding in big corporations that there is something rotten in the patent system, but it must be said that they are complaining and blaming firms for using the system as it exists. We have been told time and time again that innovation will only take place if there is an incentive to innovate, namely a patent monopoly right. However, it is becoming clear that innovation takes place in different ways, even when people share or give away some of their intellectual property. If this is the case, then the traditional justifications for intellectual property must be wrong, and we need to revise the whole premise that stronger protection is needed across the board.

This is highly inflammatory stuff in some circles. I am subscribed to a patent news list, and the writer is almost foaming at the mouth at the prospect of software patent reform in the United States, calling IBM hypocrites because they have profited from the filing of patents. That they may be, but they may still be right. Patent lawyers (and patent trolls) are the ones who are set to lose the most from treform of he current environment of software patenting in the United States, and Europe should take notice.

It is all about the content

The internet is all about the content. This seems like a bleeding obvious statement, but it is amazing how little understood this is. Content is difficult to create. Sitting every morning looking for today's post is in fact a bit difficult, and I guess that it would be incredibly easy just not to bother and not write any opinions whatsoever, just links. But this is not what blogging is about, I think. The whole point about the internet is that people interact, share ideas and opinions, find useful information and use it and reuse it for their own benefit.

So, content is what people are looking for, and this is why Google has become so important. We want content (text, pictures, opinions, news, poetry, song lyrics), and the search engines help us to get it. IT is becoming increasingly obvious that content also needs to be free of charge, people will be less likely to pay for content when there is so much free one out there. So who pays for all the content? Is it just hobbyist academics? Is it just well-intentioned people who like to share ideas? When you really look at the internet, you realise that it is the largest socialist experiment in history. In strict capitalist terms of markets, costs and rewards, it should not work. Why would people give-up their free-time to provide content?

I don't know, ask millions of bloggers around the world. I guess that there is the hope that there is somebody out there reading.

Another software patent article in Linux Insider

This is a dreadful article by yet another software patent lawyer in Linux Insider. It praises software patents American style, without shame, just like that, as if the system in the U.S. was not broken! Only a software patent lawyer can state such idiocy and claim that the system in the United States is fostering innovation. A cursory glance at the software landscape shows that small and medium software companies are suffering from submarine patents, and afraid that they may be infringing a patent that protects basic ideas. The amount of bad patents out there is staggering, which has been made more evident by the rise of the internet.

An example of a bad software patent is Test.com's patent, which is held over test and exams performed through the internet. This is so broad and obvious that I cannot even begin to comprehend how it was awarded.

WTO Dispute over online gambling

There has now been a result in a WTO dispute between Antigua and Barbuda and the United States regarding restrictions to online gambling. The two Caribbean countries brought the dispute against the United States because they claimed that its restrictions towards online gambling included in three pieces of legislation (the Wire Act, the Travel Act and the Illegal Gambling Business Act) went against their obligations in the General Agreement on Trade in Services (GATS). The case was also brought against legislations that regulate online gambling that exist in 8 different states (Colorado, Louisiana, Massachusetts, Minnesota, New Jersey, New York, South Dakota and Utah). It was argued that the United States could not impose blanket prohibitions against online gambling because it did allow distance-betting under some circumstances, and that the prohibitions established discrimination for foreign suppliers of services.

This is a very complex case that shows just why the international dispute settlement is so important for international trade. In the first instance of the dispute, the panel ruled against the United States. The Appellate Body has produced a ruling that is more favourable to the U.S. than the previous one, but it has still considered that the three federal acts mentioned are in violation of the country's responsibilities in GATS, and has recommended that the U.S. should take steps to comply with these. It seems like the legislation will have to be amended in some way. As this article points out, it is unlikely that the ruling will do anything to stop online gambling, the existing legislation is difficult to enforce.

The important question is, are Antigua and Barbuda in the song Kokomo?

BILETA 2005

I have just returned from sunny Belfast, where this year's BILETA Conference was held (BILETA is the British and Irish Legal, Education and Technology Association). I must say that this was an excellent conference, very good quality of papers all around, with enough discussion in most of the sessions. I particularly enjoyed a paper about blogs from Prof. Tang Hang Wu (picture attached). The conference kept the promise of being exceptionally critical. Next year's conference will be in Malta. Nice.

The Chewbacca Defense lives on

Johnnie Cochran died last week. He may be better known as one of the defense attorneys in the OJ simpson trial, but he has a much larger claim to internet fame: he is the inspiration for the Chewbacca Defense, which is used (and abused) in internet forums (and universitites) around the world every single day. The Chewie Defense is a logical fallacy that consists of confusing your audience with inconsistent, complicated and irrelevant facts to make them agree with what you are saying, even if it doesn't have anything to do with the argument being put forward.

This was first introduced in a South Park episode in which Chef decides to sue Alannis Morisette's music company for using a song he composed 10 years earlier called "Stinky Britches". The copyright infringmenment case is clear and the music company is obviously going to lose. But then Johnnie Cochran takes the stage and delivers his famous Chewbacca defense.

Ladies and gentlemen of the supposed jury, Chef's attorney would certainly want you to believe that his client wrote "Stinky Britches" ten years ago. And they make a good case. Hell, I almost felt pity myself!
But ladies and gentlemen of this supposed jury, I have one final thing I want you to consider: Ladies and gentlemen this [pointing to a picture of Chewbacca] is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk, but Chewbacca lives on the planet Endor. Now, think about that. That does not make sense! Why would a Wookiee—an eight foot tall Wookiee—want to live on Endor with a bunch of two foot tall Ewoks? That does not make sense!
But more important, you have to ask yourself, what does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense!
Look at me, I'm a lawyer defending a major record company, and I'm talkin' about Chewbacca. Does that make sense? Ladies and gentlemen, I am not making any sense. None of this makes sense!
And so you have to remember, when you're in that jury room deliberating and conjugating the Emancipation Proclamation... does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense.
If Chewbacca lives on Endor, you must acquit! The defense rests.

Needless to say, this argument sways the jury and Chef is found guilty of harrasing the music industry, but everything is solved when Cochran takes pity on Chef and uses the Chewie Defense to get him off.

The internet has given rise to a new host of logical fallacies. There is the Argumentum ad Google: something must be right/good/popoular because it produces a lot of search results in Google.

Sue them out of business

This is an interesting bit in the BBC technology section, which tells us that the lawsuits against the largest spammer in the world are actually working. Many companies, including Microsoft, have sued Scott Richter, the Spam King, and he is under so much pressure that he has had to declare bankruptcy.

This is all good and well, but then why am I still receiving spam?

Lessig visits Edinburgh

Professor Lessig gave a lecture yesterday as part of a panel organised by the AHRB Centre for the Edinburgh Science Festival. Yours Truly had the pleasure of participating in the panel, well, actually I just sat there and gazed at the brilliant, entertaining and slick presentation. Lessig has created his own style of using powerpoint slides, it is quite an amazing thing.

The event served to launch the Creative Commons Scotland project. Comments are welcome.

April's Fools: The Aftermath

Another April's Fools has come and gone. What is the verdict? Some good jokes out there, some sophisticated ones, some simply surreal. The most widely circulated is Google Gulp, where the search engine goes into the soft drink market. Then we have a useful item that tells us that technology companies are performing 18% more April's Fools gags than last year. In other news, Cory issues a DMCA takedown notice against the makers of the BoringBoring blog for trade mark infringement. Then, the Bush twins are being sent to Iraq (about time too).

My favourite? The one from EFF's Effector, where we are informed that Acacia has sued the makers of World of Warcraft for infringement of their Troll patent. The claim was strongly rebutted by Leet Hax0r, Blizzard Legal Overlord.

The unstoppable rise of open access journals

The Directory of Open Access Journals (DOAJ) now has more than 1500 peer-reviewed open access journals. This is an impressive number, which is a great witness as to the vibrancy and power of the open access ideals. The main success of OA is that it empowers authors, who will usually get ot keep their copyright. It encourages the reuse of articles, and does away with the ludicrous economics of traditional academic publishing.

If open access keeps going at this pace, traditional publishers may start to find that they cannot continue pricing journals in the same way. After all, we academics do all the work for them!