Dell involed in massive pricing error

(via Fernando Fernández and Claudio Ruiz) One of the risks for retailers engaging in electronic commerce is the dreaded pricing error. The relatively short history of the internet is paved with such mistakes, for example, when Kodak sold a £329 GBP camera for £100; Amazon sold a £192 handheld PC for £7; or Argos sold a £299 TV for £2.99. The usual solution for retailers is to allege that an error has been committed, and not to fulfil the orders awaiting legal action by the buyers.

Computer manufacturer Dell has found itself in trouble due to a massive pricing error in its Latin American website. One of Dell's main features is the possibility of configuring computers by adding, removing or upgrading components. On 27 June 2008, this feature went wrong, and started subtracting money for an upgrade instead of adding it. This resulted in a specific configuration consisting of selecting the base Dell Inspiron 1525 system and upgrading it to a Dual Core processor, which would normally cost roughly £300 GBP, but due to the upgrade being subtracted instead of added, the total cost was £77. Apparently, some people in Chile found the mistake, and this being the Web 2.0 universe, left messages in Facebook and blogs advertising the gaffe, which allowed users to get a laptop that would normally cost $298,997 CLP (Chilean Pesos), and instead cost $77,739 CLP. This resulted in an astounding 66% times increase in sales in that day for Chile, and apparently thousands attempted to get the exploit (unofficially, 15 thousand laptops!). Needless to say, Dell did not fulfil the orders, and offered the affected customers a 15% discount in future sells. In many other places, this action would have gone unnoticed, but in Chile this has been the subject of legal threats involving the consumer protection ombudsman, and talk of the largest class action suit in Chile's history.

There is a very interesting legal discussion about this topic in Claudio's always excellent blog "Quemar las Naves". Without knowing any of the particulars of Chilean consumer law, this seems to me to be a basic case of contract formation. Contract in civil jurisdictions is concluded through an invitation to treat, offer and acceptance. The first legal question here is whether Dell was under contractual obligation to fulfil the orders, or if the contract had not been perfected. Firstly, to me it is clear that the website is the invitation to treat, the customer placing the order is the offer, where is therefore the acceptance? Dell did not send any confirmation and did not charge for the laptops, so to me there was no acceptance. Even if there was a contract, most Latin American countries share similar Civil Codes as a result of the efforts of Venezuelan lawmaker Andrés Bello, who spent 20 years drafting the Chilean Civil Code, which would be the basis for most of Latin American versions. Brushing up on my Private Law, I remember that error can be the basis for the nullity of contract. In some systems, there is a distinction between error in the subject of the contract and error in the price. Either way, error could be amended, or it could result in declaring the contract void if the error was such that the contract would have been otherwise disallowed. Furthermore, ill intent (dolo) can also be a contractual vice that could result in its annulment. It is clear from reading some comments in blog entries that most buyers were aware that this was an error, and that they were purposefully exploiting an innocent mistake. There are people claiming that they purchased 20 laptops.

There are legal precedents in Common Law systems to deal with this area. In DSG Retail Ltd v Stockton on Tees Council, the High Court ruled against an advertised price promise because it dealt with two items that were not identical. In the California case of Donovan v RRL, the court found that obvious mistake voided the contract. Similarly, the Electronic Commerce Directive sets out the order confirmation email as a requirement in electronic commerce transactions. While this is not a contract formation step, many e-commerce retailers have taken such as confirmation email as their acceptance. Amazon.co.uk for example, explains that there will be an acceptance of the offer (order) thus:

"That acceptance will be complete at the time we send the Dispatch Confirmation E-mail to you. Any products on the same order which we have not confirmed in a Dispatch Confirmation E-mail to have been dispatched do not form part of that contract."

This is an elegant legal solution, and I believe that most e-commerce retailers should have similar clauses.

Regardless of the legal issues, one has to look at the morality of the transactions. Claudio Ruiz has written adequately that he is distraught at what he sees as a culture that rewards cheating and exploiting errors. There was a similar case in Chile last year, which leads one to believe that this may be endemic to the culture. Consumer protection laws exist to protect consumers from legitimate abuses, not to protect obviously fraudulent exploitation of an honest mistake.

We will see how this one develops, but I hope Dell wins.

Update: I have fixed some figures based on Dell's own figures, thanks to the anonymous commenter for the heads up.

Europe not so bad after all?

After yesterday's rant against European democracy, I've had some of my confidence revived by a reply sent by Alyn Smith MEP (SNP), who has taken the time to answer to many of us who sent messages expressing our concern about the commission. Kudos to Mr Smith (is there an honorary for MEPs?) for actually answering a reasonably informed reply to our concerns.

European woes

Given the fact that the amendments to Telecoms regulation have passed, I have been thinking about Europe. I am not a European citizen, I cannot even vote, but this year it will be 10 years since I have been living this side of the Atlantic, and paying taxes that go to support European institutions, so I feel a bit justified in having a moan about democratic engagement (and lack of) in the European Union.

As a Latin American, I have always been a fan of the ideals of the European Union. I think that many Latin Americans share my own sense of awe at the achievements of the EU, and many people who share Bolivar's ideals of a united Latin America see Europe as a paragon of progress, and dare I say, we share some envy at the scope of the undertaking. However, the EU suffers from several structural problems that make it a largely undemocratic body, filled with technocrats, bureaucrats, and obscure institutions mired in tokenism and pointless politicking and nationalistic anachronisms. The way in which European institutions operate is still a mystery to me, even after making an effort to navigate my way around the Byzantine mesh of committees, commissions and funding bodies.

The current crisis of passing ISP liability and copyright reform almost by stealth is just an example in a long line of regulatory and harmonising attempts that lack transparency. European citizens are often baffled at the Directives coming out of Brussels and Strasbourg, which goes a long way to explain why Ireland has voted negatively against the Lisbon treaty, thus throwing the Union into disarray. The EU cannot expect to continue with this monstrous top-down condescending approach.

Still, there are many good things about the EU. It has risen as an alternative against mindless consumerism, taking the lead in some important and worthwhile issues such as open source software, public sector information, and data protection. But there really needs to be some sort of reform to the institutions. European citizens can only stare in awe at the vibrant political process taking place in the United States. Think of it what you may, but the electoral process in the States has proved that politics can be both exciting and meaningful.

Now I will climb down from my soap box before it breaks, I'm not used to this.

Virtual Policy Network conference

VPN Virtual Policy '08: A conference on innovation and governance in virtual worlds.

22- 23 July: BERR, 1 Victoria Street, London, UK

Virtual Policy 08 is set to be a land mark event focusing on global virtual worlds sited in a European legal and regulatory context. The key policy themes for this year's event are:

• Intellectual property rights

• Financial transaction

• Child online & education

• Governance frameworks & Innovation

The event is targeted at industry representatives, legal scholars, policy makers and regulators from around Europe and the rest of the world and is a unique opportunity to interact directly with key stakeholders.

Virtual Policy is organised by the Virtual Policy Network (tVPN: www.virtualpolicy.net ) in conjunction with The Department of Business, Enterprise & Regulatory Reform with New York Law School providing program support.

Conference Schedule (subject to change):

22nd July

09:30: Registration opens

10:00 – 11:00 Optional: tutorial session on virtual worlds - part 1

Ren Reynolds – the Virtual Policy Network

11:00 – 11:15 COFFEE & NETWORKING

11:15 – 12:00: Optional - tutorial session on virtual worlds - part 2

- Dave Taylor – Imperial College

12:00 – 13:00: LUNCH

13:00 – 14:15 Conference Opening

- Leigh Jackson - BERR
- Ren Reynolds – the Virtual Policy Network

14:15 – 15:00: Conference Key Note

- Richard Allan: European Director of Government Affairs CISCO, Chair: Cabinet Office Power of Information Task Force

15:00 – 16:00 Education, Learning & Virtual Spaces

- Dr Andrew Burn - Centre for the Study of Children, Youth and Media
Institute of Education, University of London
- Anna Peachey - The Open University
- Andy Powell – Eduserv

16:00 – 16:15: COFFEE & NETWORKING

16:15 – 17:00 Innovation & Virtual Worlds

- Dr Jim Purbrick – Linden Lab
- Ian Hughes - IBM

17:00 – 17:30: In Conversation

- Professor Richard Bartle: Inventory of the first virtual world MUD & author of Designing Virtual Worlds

17:30 – 18:30: Networking & expo

19:00 – 21:00: SOCIAL EVENT - at Industry in Shoreditch

23rd July

08:30: Registration opens

09:00 – 10:00: Policy Issues & Virtual Worlds: An Overview

- Chris Francis - IBM

10:00 – 11:00: Intellectual Property

- David Naylor – Field Fisher Waterhouse
- Dr. Andreas Lober - Schulte Riesenkampff (Germany)
- Andres Guadamuz - SCRIPT, Edinburgh

11:00 – 11:30: COFFEE & NETWORKING

11:30 – 12:30: Kids & Virtual Spaces

- Patrice Chazerand - secretary general, Interactive Software Federation of Europe

12:30 – 13:30: Finance

- Professor Bryan Camp - Texas Tech School of Law (USA)

13:30 – 14:30: LUNCH

14:30 – 15:30: Governance Frameworks

- Dr. Eyjólfur Guðmundsson – CCP / EvE Online (Iceland)
- Jessica Mulligan
- Kerry Fraser-Robinson – President / MD, Red Bedlam (UK)
- Dr Matthew Williams – Cardiff University, Crime & Justice Research Group

15:30 – 16:30: Closing address

- Christian Renaud - CEO, Technology Intelligence Group

16:30 – 17:00: Conference Closing

For more information and press enquiries contact the Virtual Policy Nework:info AT virtualpolicy DOT net

Stealth copyright reform, act now!

A bit early on Sunday morning to try to organise an uprising, but this is what Lilian Edwards is doing this weekend. On Friday she wrote a long and detailed post about the way in which the 3-strike rule is going to be introduced by stealth this Monday July 7 2008. Yes, that is tomorrow.

Many of us thought that 3 strikes was on the way out, as this week saw Virgin Broadband look rather embarrassed when it attempted to send letters to people, and the effort backfired. But removing online connections to users who use file-sharing is the copyright industry's top of the Xmas wish-list, so it is not surprising that they should try and try until they can get it written into legislation. This Monday the European Parliament will vote for a set of four directives dealing with obscure telecommunication regulation. Buried deep in those directives, are several measures that deal directly with ISP liability. Most worrying for me, internet service providers will be obliged by law to "co-operate" with content industries. As PanGloss points out, "...in EC speak , this is a euphemism for being required to put in place a system akin to a 3-strikes regime."

Legislation by stealth is not new. The dearly departed Software Patent Directive was at some point subjected to the same tactics, when they tried to pass it in a Fisheries committee. The fact that this proposal is being sneaked through like this speaks volumes of the confidence that some of the proponents have on the strength of their argument. For more detailed look of the reforms, read this report by Monica Horten, or check out the Mobilisation Paquet wiki.

What to do? Write to your MEP if you're in Europe. You can find your MEP if you are from the UK here. Blog about it. Shout about it. Join the Facebook event. Hugh Hancock, of Machinima fame, has done an emergency video on the topic. So, promote the video.



I love how he uses a Rogue as the evil character, as a Mage I hate Rogues.

Llamas FTW!

The always excellent Pangloss has pointed out that we have been nominated for a blogging award! Computer Weekly has short-listed ten UK IT-related blawgs in the category IT Law and Governance, so here is my bid to fame and Web 2.0 fortune:

in Law Blogs

The nominees are:

• The Orange Rag: Legal Technology Insider
• IMPACT
• TechnoLlama
• panGloss
• NTOUK
• Robin Wilton's esoterica: Racing Snake
• Naked Law
• IPKat
• Binary Law: Legal Information in the Digital Age
• RFID Law Blog

To be honest, I don't stand a chance, although Lilian thinks that I do as a result of the Doctor Who stories. Surely, IPKat will win by a landslide, although everyone knows that llamas are much better than cats.

Voting ends July 31.

Music industry chasing its own tail

The British media has been covering heavily the the news that the British Phonographic Industry (BPI) and Virgin Media have sent its first batch of threatening-yet-polite letters to some of its customers. The move seems to have backfired a bit, as inevitably a disgruntled student has come out claiming that the letter was sent to the wrong person. Will McGree (20), is accused of downloading Amy Winehouse, which from his worried tone seems to be a much more insulting claim than being directly accused of "stealing" music. This latest campaign is part of the new strategy by the music industry to curb infringement (previous coverage of Virgin's letter campaign here).

I have to say that I do not get the music industry. One minute they are complaining how digital technologies and digital downloads are destroying their livelihood, and the next they start claiming that things are going well, and the challenges are being met. This should come as no surprise, after all, the BPI has to send a message to the public that their precious artists are an endangered species, while they must also send a message to investors and shareholders to reassure them of future profits. The fact is that the very same BPI has now released a new set of figures which demonstrates that alternative business models and digital downloads are proving to be an excellent source of income, while providing evidence that CD sales have not slumped as they often complain.

So, here is my set of recommendations to the BPI. I do not know why, I'm just feeling a bit generous today (and they are not likely to read this, are they?):

• Get your message straight. Is the digital environment good or bad? Are you suffering or profiting?
  
• Ditch DRM. Even those who seem willing to buy into the whole "stealing music" propaganda do not like DRM. In fact, I think that it is the most important stumbling block for further growth of digital music.
• Sending letters to customers is a bad business idea. They will switch to another competitor who does not send letters.
  
• Give Broken Records a contract.
  

There, that advice will see safely you into the next decade; no need to thank me though, this one's on the house.

(Further discussion at the IPKat, but I disagree entirely with their take on it).

Update: Becky Hogge speaks out on the subject in Friction.tv.

Firefox: The public face of open source?

It is now official. The much publicised Download Day has set a new Guinness World Record for the single-most downloaded file in a single day with 8,002,530 unique and complete downloads during the day, an impressive figure whichever way you look at it. Firefox 3 has now been downloaded more than 28 million times, and it is climbing fast in the charts. Firefox now commands 19% of the browser market, and it should pass the 20% mark soon. Firefox 3 alone has reached the 5% market-share mark, a similarly astounding achievement considering that it was officially launched less than two weeks ago. The "Spread Firefox" campaign has been an extremely successful viral exercise, with nifty little gimmicks like giving every person who downloaded the software a personalised certificate, or encouraging blogs and fora to spread the news.

This success is good news for open source in general. As a person who presents on open source licensing issues at different venues, one of the things that always strike me is the problem explaining open source to members of the public outside of the techno-elites. There is a vast majority of everyday users who do not care one bit about software development. However, I have been noticing that few names and brands are recognisable to the mainstream. Apache used to be the best example offered, but outside of IT rooms, nobody knows about web server software. One used to offer Google as another large corporate user of open source, but again, explaining large Linux server farms is not something that interests main users.

Like it or not, the new face of open source is Firefox. It is hip, it is functional, it is free, and it is fast. It is scalable, customisable and works much better than IE7. It is time then for the open source community to make their support of Firefox a much more important part of public engagement.

By the way, 52% of TechnoLlama readers use Firefox. Nice.

Icann? Yes we can!

The large meeting of the Internet Corporation for Assigned Names and Numbers (ICANN) in Paris has produced a ground-breaking overhaul to the domain name system the likes of which have not been seen before. The main step taken was to internationalise the domain name system to allow for non-Romanic characters, such as Cyrillic, Arabic and Asian scripts. It has also allowed the creation of generic top-level domain names, which will allow companies and individuals to create their own top level domain name, instead of relying on com, org and many of the others we have come to love and hate.

I do not have much to add other than the fact that this is a step in the right direction. It is often easy and even fashionable to criticise ICANN when they get things wrong, or to criticise the fact that this is a private corporation with strong ties to the American government. However, this time they have gotten things right, and the domain name overhaul seems like the right thing to do.

OK, a post without cynicism? I must be getting soft in my old age.

Company rulez

Company Rulez is a video mocking Microsoft's Game Content Usage Rules made with Halo 3, or as it says, that game with helmeted dudes and aliens produced for that console by that company that Bill Gates founded.

While I have praised the Game Content Usage Rules previously, I can see how some of the criticism explained in the video is warranted. Particularly, the rule on no earnings seems harsh. OK, I cannot keep calling the licence the Game Usage Content Rules indefinitely, so let's just refer to it as The Rules. The Rules state that:

"You can’t sell or otherwise earn anything from your Items. We will let you have advertising on the page with the Item on it, but that’s it. That means you can’t sell your Item, post it on a site that requires subscription or other fees, solicit donations for your Item of any kind (even by PayPal), use it to enter a contest or sweepstakes, or post it on a page you use to sell other items (even if those other items have nothing to do with Game Content or Microsoft)."

This seems a particularly harsh version of non-commercial elements present in licences such as Creative Commons. However, the video is wrong when it talks about competitions.

Other items criticised are issues such as the fact that you cannot licence the work using Creative Commons ShareAlike licences, which is indeed a problems with the existing terms and condition of The Rules.

I have been thinking recently that solutions suc as The Rules can indeed be the way forward to companies wanting to allow fans to make their own versions of the content without fear of copyright infringement. I think that this acts to enhance the brand and/or content, as it keeps the fans on the side of legality, while it also helps fans to know what they can and cannot do. Otherwise, things like these may happen.

Bored?

It's Friday afternoon. Are you bored? Are you feeling down? Are you tired after a hard week?

This will cheer you up.



It's 80s music. It's Star Wars. It's dancing wookies. It's made my day.

Where have all the spambots gone?

As an update to the WoW gold spamming story I wrote earlier, I have noticed that in the last month the spambots have gone. There is still some spam, but I could swear that SpamMeNot has been reporting less and less spam recently. I have also noticed that the corpses have gone from Stormwind's Auction House.

I have been searching official forums for an explanation, but so far I have found none. It is interesting that forum moderators are ordered to delete spam-related threads immediately, so I have not found any mention of this. I can only see one of these options as the reason for the reduction of in-game spam:

• Spammers have given up after the many thousands of deaths, and moved somewhere else (unlikely).
• Gold websites have disappeared (even unlikelier).
  
• Blizzard has recognised this as a serious problem, and have implemented a technical solution that gets rid of most of the problem.
  

I vote for option 3, but I do not know how this has been achieved.

Using anti-hacking law to punish cyberstalking

(via The Guardian) An interesting case is taking place in the United States. Megan Meier was a 13-year-old girl from Missouri who had a MySpace page and an active web presence. She received a friend invitation from a 16-year-old called Josh Evans (16), and they exchanged messages and flirted for several weeks. At some point, Josh told Megan that he was leaving town, Meier expressed her love for him, but his messages grew darker. At some point he commented that "The world would be a better place without you". She killed herself one hour after receiving that message.

Sounds like a tragic story of teenage love gone seriously wrong, but this one has a twist. Josh Evans was actually Ms Lori Drew (49), Megan's next-door neighbour. The mind boggles at the mindset that makes someone act so callously, but as someone said, being mean online is not a crime, or is it? In principle, Ms Drew's actions, as reprehensible as they are, do not seem to fall into any criminal type, so her cyberstalking (or cyberbullying?) had gone unchallenged in the courts. However, prosecutors are bringing Federal charges under the Computer Fraud and Abuse Act on one count of conspiracy and three counts of "accessing protected computers without authorization to obtain information to inflict emotional distress". Each count carries a maximum five years in prison, and the case is being heard in the Central District of California because MySpace is based in Beverly Hills.

The legal reasoning behing the indictment is disturbing for various reasons. How can legislation designed to curb hacking and illicit access to a computer be used to accuse a person who has used an online persona to inflict emotional distress? The reasoning from the U.S. Attorny making the charges state that:

"The indictment alleges that Drew, along with others, registered as a member of MySpace under the name “Josh Evans.” Drew and her co-conspirators then used the Josh Evans account to contact M.T.M. and began what the girl believed was an on-line romance with a 16-year-old boy. In taking those actions, the indictment alleges, Drew and her co-conspirators violated MySpace’s “terms of service” (TOS) that prohibit users from, among other things, using fraudulent registration information, using accounts to obtain personal information about juvenile members, and using the MySpace communication services to harass, abuse or harm other members."

This implies, strike that, this clearly states that lying in application forms and therefore violating terms of service is a crime. Say what? This practice is used every single day by thousands and thousands in discussion boards around the world! The prosecutors seem to be stretching the law to breaking point on this one. Specifically, I have read the relevant sections in the Computer Fraud and Abuse Act, and the legislation is clearly geared towards hacking and unauthorised access. Since when is breach of TOS equivalent to hacking?

This case is part of a growing line of murders and suicides where online annonimity, play-acting and misidentification have played a part. There was the strange case of an online suicide pact, or the bizarre case of IM deceit that led to a murder in upsate New York. Therefore, there may be some justification about enacting legislation to protect teenagers against cyber-bullying and cyberstalking, something that U.S. legislators appear to be keen on doing. However, tragic the case is, abusing anti-hacking law to try to punish some reprehensible actions is excessive.

On a semi-related note, it is strange reading some of my old posts. I sound rather unsophisticated!

Domain name dispute over Narnia

A family in Edinburgh has been the recipient of a WIPO domain name complaint as a result of their purchase of a Narnia domain name. Richard and Gillian Saville-Smith purchased the domain name narnia.mobi as a gift for their son so that he could use it as his email address. However, C.S. Lewis' estate has filed a complaint using WIPO's domain name dispute resolution mechanism (case D2008-0821).

The value of the domain name is quite evident, as Disney and C.S. Lewis Ltd will certainly be thinking of using it to further promote the popular franchise of Narnia books. Given WIPO's well-documented track record to support the trade mark holder, I am guessing that the result of this dispute could be a foregone conclusion.

This story has internet meme written all over it. Corporate greedy interests, Disney, and unscrupulous estates plot together against hard-working family who want nothing more than to give their son a birthday gift. C.S. Lewis is "rolling in his grave" according to the family. I may surprise some people here, but I have to say that I do not have any sympathy for the parents in this case, even if they are from Edinburgh. Domain name law is clearly moving towards trade mark, and a domain name can be a valuable commodity. If that is the case, what sort of right can this family claim over the domain "narnia.mobi" other than the fact that they registered early? The C.S. Lewis estate holds the trade mark, so it is perfectly valid to assume that they would have a better claim over the domain name than a random family from Scotland.

I would like to own the domain "lordoftherings.com", but it ain't gonna happen, is it?

Suicide 2.0

Here we go again, the Daily Mail broke a story on Wednesday that blames social networking site Bebo for the tragic death of a teenager. What is amazing to me is that other news sources have picked it up. The Guardian has a less strident treatment, as does The Independent, but the Australian site News.com.au starts with the headline "Bebo blamed for 13-year-old boy's death". Drawing conclusions much?

We have been here before, and there seems to be a trend to look at teenage suicides and find any link to social networking sites. Back in February we saw a similar phenomenon with regards to the series of suicides at the Welsh town of Bridgend. As then, the assumption behind most of the pieces is clear: suicide > bullying online > therefore the blame lies with internet. This is lazy journalism at best, and purposeful technophobe scaremongering at worst. There is no way to know what was the role played by online bullying in this instance. Isn't it more likely that the poor kid suffered old-fashioned bullying as well? There is plenty of evidence that Goth and Emo teenagers suffer from constant verbal and physical abuse. The very same Daily Mail that feels so sorry about the death of this teenager, was warning parents not so long ago that Emo music is a cult, hence helping to stigmatise those who dress differently. Shouldn't we then blame the Daily Mail's 'war on Emo' as the culprit, instead of attacking social networks?

Book publishing under Creative Commons

I have been granted sabbatical leave for the academic year 2008-2009 in order to write a book. The topic is related to my research into networks, and it will expand some of the ideas I've had in this area. One of the things I really wanted was to publish the book under a Creative Commons licence.

While it may seem counter-intuitive to publish a book under "some rights reserved" licences, some high-profile examples in academia and in fiction have proved that it can be a successful strategy. The number and quality of legal academic writing under CC is becoming quite impressive: Lessig's Code 2.0, Benkler's The Wealth of Networks, and Zittrain's The Future of the Internet are all released under a CC licence, and are selling as well as specialist Cyberlaw books sell, if not better. The Wealth of Networks can be found online in its entirety in a large number of formats, it can be downloaded as a PDF, and even read in HTML. Traditional proprietary thinking would tell us that a book which has been made available online would not sell, why would anyone buy a book that you can get online for free? But people are buying it, and buying it in droves. The book is ranked at an astounding 13,928 in Amazon.com's book sales rank. This is impressive when you compare it with other successful books in the area. Goldsmith and Wu's excellent book Who Controls the Internet (not released under CC) is ranked 181,050, while William Fisher's Promises to Keep is ranked 176,007. Not only have sales been positively affected by CC publication, overall impact is also enhanced. If the value of an academic book is measured on how many people read it, then these books are runaway successes.

But publishing is still a business, and success in academia is not only measured by how many people read your work. We are also required to show something tangible to promotion boards and heads of school. Having a successful blog and large number of downloads on SSRN does not equate promotion. Metrics and deliverables are the name of the game, and nothing gives as much academic kudos as a monograph printed by an established and reputable publisher. In the age of information overload, publishers are still seen as gate-keepers, providing a much needed seal of quality to the written word.

This brings me to the question asked by anyone who wants to release under a CC licence, but who also may want to publish commercially. How do you reconcile both worlds? How do you make sure that the CC strategy does not affect the commercial strategy?

I have been pleasantly surprised by the willingness from the publishers to talk about CC licensing. The publishers (which shall still remain nameless until everything is signed) has been open to suggestions on how to publish my book under Creative Commons, and how this would fit into their commercial interests. This would be a first time for them, and they have taken the chance precisely because I have been a vocal proponent of CC, it would seem hypocritical not to practice what I preach. For now, this is a one-off experiment, so no pressure on me then...

The first question for me was which licence to choose, and I have gone for the CC-Attribution-NonCommercial-NoDerivs licence. I know that non-commercial licences have many detractors, but to me their value is in allowing dual licensing strategies that allow commercial exploitation. I have also chosen to go for non-derivatives as I do not see the point of anyone remixing a book and releasing it with share-alike provisions, but I may be wrong here. Once the licence was chosen, the next step was to redraft the boilerplate agreement from the publishers in order to make it CC-friendly. The publishers were again very willing to let me look at the contract and make the adequate changes. I put my drafting hat on and started working on it.

The first thing is that I added a clause which specifies that the work is licensed under a CC licence:

"This work will be licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 Unported licence, hereinafter called "the Licence". The full text of the Licence is appended to this agreement. "

Then came the tricky part of dealing with exclusive rights. All publishers ask you to grant them with an exclusive licence to publish the work, which could be incompatible with CC, as there would be a number of publications that are not exclusive. For example, a person in Costa Rica decides to photocopy the work and distribute it in class. This would be keeping with the CC licence, but it would seem to infringe exclusive rights. What I have done is added "commercial" before the grant of exclusive rights, so that it now reads "the Author grants the Publisher the sole and exclusive right and licence to commercially produce and publish the work" (I am rephrasing slightly to protect the publisher's agreement). This allows the publisher to retain all of their exclusive commercial rights, while keeping all non-commercial uses protected by the CC licence intact.

I then turned to enforcement. Most publisher agreements have sections where they promise to sue infringers. I left that as it was, but added the following clause:

"In case of breach of the Licence, the Author assumes the sole responsibility for its enforcement. The Publisher may jointly bring suit if it believes that the breach infringes its exclusive commercial rights. "

This leaves the door open for the publisher to sue against infringers that affect their commercial exclusive rights directly, but it leaves all responsibility with regards to the enforcement of the CC licence up to me. Finally, most publishing boilerplate agreements also have a list of exceptions, fair use/dealing provisions, and circumstances where royalties will not be charged. I added the following to a list of free copies, that is, copies which will be exempt of licence and/or royalty:

"Copies of the Work which comply with the terms and conditions of the Licence."

There were a couple of other minor tweaks, but that was it. Now, I just have to write the bloody thing!

Edinburgh University studentship

SCRIPT - a law and technology research centre at the University of Edinburgh, School of Law - is seeking to recruit a suitably-qualified candidate to undertake a fully-funded PhD studentship. This is a full-time, full maintenance, three-year position sponsored by the Arts and Humanities Research Council, which also supports the Centre. The area of research will fall within the "Open Science Business Model" strand of the Centre's activities and the successful candidate will be supervised by Professor Graeme Laurie and Andres Guadamuz, Co-Directors of the Centre.

This studentship will benefit from collaboration with Roslin Cells Ltd, a not-for-profit company associated with the Roslin Institute which produces high-quality embryonic stem cell lines for research and clinical application. Roslin Cells, which is interested in issues of Open Science and wishes to develop a suitable open licensing strategy, will serve as a case study and this is expected to form a central part of the thesis.

This studentship is being fully funded by the Arts & Humanities Research Council and candidates must be eligible to receive such support. Further details of the eligibility criteria are available from http://www.law.ed.ac.uk/ahrc/aboutus/studentshipguidelines.aspx

Queries relating to this studentship can be addressed to Professor Graeme Laurie, Director of SCRIPT at graeme.laurie@ed.ac.uk or on 0131 650 2020.

An application form is available from the SCRIPT Administrator via john.anzani@ed.ac.uk

The closing deadline for application is 09:00 Friday 13th June 2008. Interviews will be held on the afternoon of Friday 20th June 2008.

Virgin ISP to issue letters to file-sharers

If you can't beat them, send them a polite letter. This seems to be the latest strategy from the BPI. As the three-strikes policy seems to have failed, several outlets are reporting that the BPI has reached and agreement with Virgin Broadband to issue letters to its customers if there is a suspicion that someone may be illegally file-sharing in that household. The letter itself is quite interesting. It does not directly accuse the account-holder, but it states that:

"We have information that someone – and it may not be you – is using your Virgin Media internet account to access music illegally. However it happened, it is illegal. We therefore need you to take steps to stop it from happening again. The steps you can take are set out in the enclosed ‘What To Do Next’ section. You should know that if you don’t do this and the problem happens again, then you could face legal action."

This could definitely act as a deterrent, but it may also alienate customers and get them to switch providers. The other problem with this approach is that monitoring is not perfect, and it may produce false positives. The EFF has publicised an interesting study where innocent devices have prompted DMCA cease-and-desist letters just by being connected to BitTorrent.

This has been stated many times before, but it is worth repeating. If the music industry spent as many resources trying to change its business model to respond to the new realities in the digital environment, then they may have found ways of benefiting consumers, musicians and secure profits, while not alienating their customers.

The failing three-strike strategy

I've been reading Danny O'Brien's excellent post on troubled French three-strikes-and-you're-out law. Nick Jondet at French Law also informs us that the controversial piece of legislation will be presented later this month. This has left me wondering whatever happened to three-strikes here in the UK?


Those inclined to follow this story might remember that the year began with warning from the UK music industry that it would pursue a policy of allocating responsibility for online copyright infringement upon Internet Service Providers. The British blogosphere was up in arms (or more literally, up in thumbs) about the thought of having ISPs police internet piracy. Similarly, the European Parliament thought that this was a bad idea, as did just about every person with more than two working neurons. The thing is this, by removing access to the internet for an entire family, you are exercising punishment that goes beyond the offence. Not only that, in the digital age access to the internet has become an important part of everyday life, and removing it via an administrative decision violates every principle of justice that I can think of.

The three-strike policy seemed like the natural next-step escalation on the War Against Piracy. Suing the clients failed. Suing the users failed. Bribing college kids failed. So let's sue the ISPs! Or get them to enforce copyright for us! Funnily enough, I believe that the music industry may have realised that the decision has become unpopular. The BPI threatened to sue Carphone Warehouse if they failed to make the necessary appeasing sounds, an ultimatum that failed to materialise. Meanwhile, the music industry may be shelving their three-strike plan because of the prompt action by advocacy groups and the European Parliament. Some bad copyright policy may have been averted. Am I being too optimistic? Only time will tell.

On a related note, I was going to name this post "Whatever happened to... three-strikes?" but when I googled the title I realised that it had been used already by Andrew Orlowski. Ugh. I am deeply disturbed by that, I need to go and take a shower.

Bean counting

The month of May has been rather crazy time here at TechnoLlama. With knit-gate and the killer totems of Stormwind, readership figures have risen like the beacons of Minas Morgul. Technorati now has me at 72 incoming links, which means that I have finally broken into the top 100,000 blogs in the world (ranked 90,243). Subscription figures to the RSS are also healthy, and for the first time the number of subscribers has broken the 300 mark, with 245 as average. Direct visits are down from a high 870 visits in one day courtesy of the coverage in the knitting saga, but they are up to a healthy 150 unique visitors per day, this despite the fact that I have not been posting as much due to all the travel.

Once again I must thank the habitual reader for their continuing support, you make blogging worthwhile.

Aerotel patent repealed

While I was away presenting on software patents in Brazil an important decision took place last week. Aerotel v Telco is one of the most important cases in this area, and the patent that originated it has now been repealed because of obviousness. Aerotel is an Israeli patent troll that provides no services and does nothing but engage in patent infringement suits all over the world defending their patent. The patent protects a method of making pre-paid telephone calls.

Fysh QC delivered the reasoning, and it makes for interesting reading (for those inclined to be interested in software patent litigation that is). Fysh QC states that:

"Even if it is proper to pose the first question in this context, the answer must I think, be this: the general idea of either post or pre-payment charging for telephone calls would unhesitatingly have been present in the mind of a skilled worker at the priority date. These were the alternatives. A telephone company must of course be paid and both methods of payment were not just well known but were the norm. [...] Thus, assuming it to be a relevant consideration, the idea of requiring payment in advance for telephone calls is in my judgement, completely obvious."

Hurray! One of the points that I make when talking about software patents is that there may be scope for some protection of computer implemented inventions, but that the implementation has been atrocious. In my opinion, most software patents fail in obviousness, prior art and disclosure. The problem is that patent litigation is expensive, and defending yourself even against a bad patent may cost a fortune.

Doodling

You know that you have been to a boring conference when.....

... the programme looks like this at the end.

Democratic engagment or PR ruse?

There has been considerable excitement in those interested in virtual world research about the results of the election of EVE Online’s Council of Stellar Management, which is as far as I know the first ever democratic experiment involving users of a virtual world. EVE Online is one of the most hard-core MMOGs in the world, an innovative and vicious global network of players engaged in galactic domination. The game has many interesting features that make it an excellent case study for regulation of the new virtual lands. It is a unique server, which means that unlike more popular games like WoW, all players can engage regardless of location. The game is also based on a unique premise, that of corporate and imperial greed in search of resources with which to bash your opponents. This has been translated into a loyal fan-base of tens of thousands, but little room for expansion, as the barriers to entry for new players are too big to overcome.

Now CCP, the Islandic company behind the game, have decided to empower its player-base by holding elections on the Council of Stellar Management, a body consisting of players which will be flown into Iceland to have direct talks with CCP and game designers. The press release reads:

"Since the earliest days of EVE’s development, we have relied heavily on collaboration with our playerbase regarding world issues. CCP has followed and nurtured what governing and organizational structures emerge within EVE and also brought best practices from the real world into the virtual world,” said CCP CEO Hilmar Veigar Petursson. “The formation of the Council of Stellar Management signifies to us that that EVE has extended beyond the parameters of being ‘just a game’ into something more meaningful. As this first group of Councilors works with us over the course of the next six months, we look forward to seeing how our combined efforts can further expand the potential for virtual worlds to entertain, educate and inspire.”
The men and women of the assembly will travel from their homes in the United Kingdom, United States, Netherlands and Denmark to Iceland in June for their first face-to-face summit with CCP representatives at the company’s corporate headquarters in Reykjavik. Speaking on behalf of the players that elected them, the Councilors will discuss EVE-related issues, offer suggestions and exchange ideas to continue the evolution of EVE, which recently celebrated its five-year anniversary."

This is quite a unique solution to the issue of governance of virtual worlds, but one has to wonder if it will be a genuine attempt to engage the fan-base, or it will end-up being just a clever PR exercise.

I found the demographics of voting more interesting than the actual vote itself. Veteran players constituted the largest voting block, and it is interesting to see that while roughly one third of EVE players are American, the actual voting was well-spread geographically.

Regardless of my typical cynical reservations, I believe that this vote is unique. Is this the birth of virtual democracy?

On the road

I'm in Curitiba, Brazil, jet-lagged and living off Guarana energy drinks. William Gibson mentions in Pattern Recognition that jet-lag happens when your soul is trying to catch up with you. I suspect mine to be somewhere over the Atlantic at this moment.

I used to love travelling, going places, meeting people, taking pictures in front of landmarks in an attempt to prove I was there. Now travel has become a nuisance and has lost all of its previous appeal. It has become a cliche to say this, but hell is an airport lounge. Forget the pitchforks and lakes of fire, to me there is nothing worse than bland lounges filled with neurotic travellers.

I'll be back to blogging about normal stuff as soon as my soul departs the baggage reclaim carousel.

Travel and "open" wifi

It's been quiet here in TechnoLlama for a while after knit-gate and the story about gold spammer executions being picked up by the always excellent Terra Nova. I am now off to Brazil for a conference, and as a reluctant traveller and Internet addict I am always very interested in finding adequate wifi coverage, which is not always easy and rather expensive.

For the last year I have been relying on BT Openzone, which came as part of my home broadband package. However, the free service was discontinued, and it has now been replaced with something called BT Fon. Fon is a really interesting experiment, an international network of users that agree to share their broadband connection with other Fon users. In their own words:

FON is the largest WiFi community in the world. FON is a Community of people making WiFi universal and free. Our vision is WiFi everywhere made possible by the members of the Community, Foneros. We share some of our home Internet connection and get free access to the Community’s FON Spots worldwide!

The idea is ground-breaking, yet amazingly simple when you think about it. Road warriors will be used to picking up all sorts of closed networks when roaming the wireless space. The idea is to let you connect to those wireless networks in exchange for making your own service available to others. This seems to me to be a logical step-up of the sharing open ethic exemplified by tools like Wikipedia, Creative Commons and open source licensing. By sharing your resources you also benefit by being able to connect to a network anywhere in the world.

Those legally inclined will certainly get suspicious right now. What are the legal implications? What are the liabilities involved if someone uses your network to download porn, terrorist manuals, unlicensed copyright works, or boot-leg Rick Astley videos? Is there a chance that sharing your connection will make you vulnerable to attacks? Fon say that the connection is secure, and because all users need to user their login in order to connect, a record will be left somewhere that access to that dodgy site was not yours, but it will identify which username did it.

I have to admit that I really like the idea, it has all of the sharing elements that I like about the participatory web. However, I am sort of sceptical about BT's reasons for joining the Fon network. Call me cynical, but I am certain that BT realised that revenue from roaming wifi is not what it should be, and that it was partly to blame on people like me who got access as part of a package. Now they can charge me whenever I need to go online on the road and I cannot find a Fonero. Hopefully, the network will become big enough soon enough.

Machinima for good causes

This is an excellent use of Machinima to illustrate the need for Fair Trade.

An end to the knitting saga

I never knew knitting was so popular. Yours Truly had a strange day yesterday, being quoted in The Times, and interviewed in the Daily Mail. The story has travelled far, it has been reported in Wired, Down Under, and even on the CBBC Newsround site (you know you have made it when a story you broke gets reported on the CBBC). To top up a crazy day filled with knitting puns and forgotten Doctor Who episodes, the BBC itself invited me for an interview in E24, BBC News 24 entertainment programme.

The experience was bizarre to say the least. I was invited into the BBC studio in Edinburgh, which is located in a small building in Holyrood Road. I was expecting something bigger, but there were only two people there, and the actual studio was a table with some chairs and a picture of Edinburgh as the background. No staff, no cameramen, just an automated camera, instructions to talk to a plastic cup (literally), and this guy talking into my ear. The interview was over too shortly, and I probably came across as either an illegal immigrant passing off as a university lecturer, or as an over-intellectual geek who needs to get out more (note to self: DO NOT make nuanced legal points in an entertainment program). I felt a bit ambushed, as the person who followed me was a BBC Worldwide exec saying that they invited Mazzmatazz to contact them to reach an agreement of some sort. The interviewer said that Mazzz had just contacted them and had asked where she could get in touch, so everyone wins.

This is a good resolution to all involved I believe. Hopefully the fans can continue knitting Oods, the BBC is seen listening to fans, and we have a nice collection of Dalek puns to ponder. And of course, we do not get a clear legal answer of whether the written instructions for doing something constitute a separate copyright to the artistic work that gave origin to it. Ilanah at IPKat thinks that this could be considered analogous to software and source code. Quite an interesting analogy.

Did I just lose a week pondering Daleks and knitting? I DO need to get out more.

Of fan art, mash-ups and licences

It's week two in the Knitting Wars (or Doctor Who and the Curse of Fatal Copyright). I have been surprised by the level of interest this is generating in the blogosphere, it has been ORGd, EFFd and BoingBoinged, it has also been picked up by the knitting community (I did not know there were so many angry knitters out there!) I have also been interviewed by The Times, so the story may have legs (which in Internet terms means that it will be on the radar for at least a fortnight). There have been some other interesting responses, such as one knitter siding with the BBC, and an excellent article by Jonathan Bailey on where this all fits in the wider fandom picture.

I think that the reason why this story has generated such interest is that it is seen as the typical Amateur David versus the Greedy Goliath. The blogosphere is particularly suspicious of any attempt to remove and take down things (remember the HD-DVD fiasco?) The story also fits well with the picture of corporate greed gone mad, and Brits also love to moan about the Beeb.

I must stress that I do understand why the BBC would want to defend their intellectual property. Doctor Who fans should understand that improved production values are expensive, and that the BBC needs to secure funding to continue giving us quality programming. However, I have to log my complaint about the horrible episode "The Doctor's Daughter", you could literally see the sterling signs in the eyes of the writers when they thought of a new Doctor Who spin-off directed at the teenage market. Even David Tennant seemed embarrassed by the whole thing. Similarly, it has to be said that the Adipose dolls were being sold on eBay by unscrupulous knitters, which appears to have prompted the whole action.

However, copyright owners should recognise that it is the fans who make or break their intellectual property, and as such, one should be very careful when biting the hand that feeds you. Danny O'Brien made the excellent point that it was the fans who kept the Doctor Who franchise alive during the 90s. Copyright owners should also finally understand that just because someone knits a Dalek or an Ood, they will still buy official merchandise.

This brings me to the wider question of fan art. The explosion of user-generated content tools means that it is easier than ever before to make one's own interpretation of a loved character, and to distribute it to the public. Creativity knows no copyright boundaries, and fans are likely to enhance and reinterpret works of popular culture in imaginative ways. Fan fiction, fan art, and mash-ups do not detract from the original work, they enhance the brand. The problem of fan art will not go away with angry cease-and-desist letters, it will only get worse.

Why then not recognise this in the law, and find ways of allowing legitimate non-commercial fan art? Lessig already suggested as much in Free Culture, and Creative Commons is part of a solution. However, it is extremely unlikely that large corporate owners will adopt CC in the near future, so perhaps other solutions are needed. I believe that fan licences are the way forward.

This is already taking place. Microsoft has created a Machinima licence with its Game Content Usage Rules, which allow fans to make derivative works of Xbox games as long as they are non-commercial. Blizzard has also created a Fansite Kit, which allows fans to download high-quality images for use on their own WoW sites. See, smart content owners know that the fans are their best marketing tool, why fight a futile battle against user-generated content, when you can make it work for you?

By the way, the name of that Dalek is "Extermiknit".

Death of a gold spammer

(The next victim stands on top of a pile of dead spammers)

A curious scene has been taking place in the streets of Stormwind. The square between the Auction House and the Bank is by far the busiest place in the game, with dozens of players moving to and from the commercial hub. This is why the square is also the favourite location for gold spammers. The spammers are randomly generated Level 1 characters, operated as bots and programmed to repeat an endless stream of ads. The typical message gives the name of the site, and the current price of gold. The constant stream of chat spam is so annoying that it has become a serious problem for players. Most people ignore it, but there are some who have taken the law into their own hands.

It is not possible to hurt a character from your own faction without inviting them to duel. Even if a player from another faction got there, he would not be able to kill the spammer, as he needs to be flagged for PvP. However, someone found that a shaman can cast a totem that will give just enough damage for a few seconds to all around it, even players from the same faction. This will not hurt anyone else, but it will kill a level 1 character. Because these are bots, the corpse will sit there, and will not resurrect. One can't spam when one is dead.

There are several legal issues here. Firstly is the legality of killing another player in this fashion. Interestingly, this is an action that is considered to be a game exploit, and therefore it is a bannable offence that would fall under s B.7-8 of WoW's Terms of Use. According to that, users may not:

"7. Harass, threaten, stalk, embarrass or cause distress, unwanted attention or discomfort to any user of the Program;
8. Cheat or utilize "exploits" while playing the Program in any way, including without limitation modification of the Program’s files;"

Because the exploit is a bannable offence, the thread where it was explained was deleted, but by the wonders of Google cache, you can find it here.

The second legal question is one of regulation. It seems like WoW is somewhat reluctant to completely stamp out gold selling and spam; see Judge Ung-Gi Yoon's excellent article on the subject (thanks to Nic Suzor for the link). However, there are several regulatory responses to the problem posed by chat spam. The first one is to use the top-down, legislative and contract approach, which is to make this a bannable offence under the terms of use. Sections B.2-3 of the Terms of Use deal with that:

"2. Carry out any action with a disruptive effect, such as intentionally causing the Chat screen to scroll faster than other users are able to read, or setting up macros with large amounts of text that, when used, can have a disruptive effect on the normal flow of Chat;
3. Disrupt the normal flow of dialogue in Chat or otherwise act in a manner that negatively affects other users including without limitation posting commercial solicitations and/or advertisements for goods and services available outside of the World of Warcraft universe;"

While this is enforced, the solution by spammers is to create characters as soon as the old ones are deleted, which explains why gold farmers are all Level 1. As with email spam, the second solution is code. SpamMeNot is a WoW plugin which filters out most of the chat spam, and a very effective one at that.

The third solution is the vigilantism described. It is intriguing how virtual communities will revert to community enforcement when they perceive that the legal solutions are not working. Suddenly, it is the Wild West all over again.

I'm sure that Blizzard will soon plug this exploit, but on the meantime, all bots in the vicinity of Stormwind better beware. Avatars are up in arms, and they want revenge.

In defence of Edinburgh

This is not at all related to the law, but I am so outraged that I must speak my mind. The Apprentice UK Edition has brought the reputation of Edinburgh University to the fore. At the heart of the question is a confusion on what constitutes the difference between halal and kosher chicken meat. Michael Sophocles is a former student of Edinburgh, and he did not know the difference , despite being "a good Jewish boy". Margaret Mountford, Sir Alan Sugar's sidekick, reckons that Edinburgh University is to blame. "I think Edinburgh isn't what it used to be," she exclaimed in the boardroom. Kosher-gate has legs, it has been picked up by the wonderful Anna Prickard in The Guardian.

I was more worried about Michael's cheating ways, and his attempts to bribery, than about his knowledge of the intricacies of kosher food. I checked the electronic records and he was indeed a student of Classics at the august institutions that pays my bills, albeit one not holding the most brilliant marks. However, should an institution be indicted based on whether one student knows what Halal is?

We demand an apology from Margaret!

Doctor Who: Partners in Copyright Crime

The good people at the Open Rights Group forwarded me an email they received from a Doctor Who fan that goes by the screen name Mazzmatazz, who has allowed me to tell his/her story. But beware, this is a scary tale of copyright abuse that will have you hiding behind the sofa, or perhaps it will send you into a Whogasm.

Doctor Who series Four started a few weeks ago with the episode "Partners in Crime". The episode featured a new creature generated from human fat called, what else, the Adipose (pictured below). While I did not particularly like the episode, I reckon that the Adipose made a good showing, and will probably become a memorable Doctor Who creature (much better surely than the lovable yet ludicrous Abzorbaloff). The Adipose however, seem to me to be the Doctor Who equivalent of Ewoks - small and cute creatures which serve little purpose to the plot, and whose value seems to be mainly as merchandising fodder (I notice that others agree).

Enter Mazzmatazz. Mazz has a website featuring photography and knitting. In a display of amazing knitting talent (and dare I say, too much time on their hands), Mazz has been making knitting designs of Doctor Who characters; see for example, the excellent Ood. Under normal circumstances, a fan who makes knitting designs of loved TV characters should not be the concern of copyright owners. However, these are not normal circumstances. The new Doctor Who series is merchandising gold, so much so that the BBC has been climbing up the world merchandise chart. This may confuse people in and outside of the UK. The BBC is not a commercial enterprise, is it? We in the UK have to pay licensing fees (costing a whooping £139.50 GBP per year) to support public broadcasting, so why are the BBC relying so much on their merchandising?

This is a good time to get acquainted with how the BBC works. While the BBC in the UK is free of advertising and supported partially by the licensing fee, expensive quality programs such as Doctor Who and Torchwood require investment that goes above and beyond guaranteed funding through licence fees alone. The BBC therefore has an international commercial body called BBC Worldwide, which sells its valuable intellectual property to the world entertainment market. The wide success of titles such as Planet Earth and Doctor Who have pushed BBC Worldwide's sales to more than £800 million GBP, and merchandising is a key part of that strategy.

Where does our friend Mazz fit in this picture of corporate success? Well, it seems that the Adipose knitting designs have hit a greed nerve somewhere at the Beeb. While I have a copy of the entire communication between Mazz and the BBC, I will reproduce it partially because the emails come with a confidentiality disclaimer (although I must point out that I believe, as others do, that those email disclaimers are not even worth the bits they are written on). The cease-and-desist letter reads:

"We note that you are supplying DR WHO items, and using trade marks and copyright owned by BBC. You have not been given permission to use the DR WHO brand and we ask that you remove from your site any designs connected with DR WHO. Please reply acknowledging receipt of this email, and confirm that you will remove the DR WHO items as requested."

Interesting choice of words to say the least. Further communication continues to stress the point that Mazz's designs constitute unlicensed merchandise, and that BBC Worldwide has every right to stop others from distributing their property. However, Mazz is not selling merchandise, he/she is providing a knitting design to tell others how to make their own versions of the Adipose. While commercial exploitation has no bearing on whether there is copyright infringement, I think that it should be a huge consideration for BBC Worldwide when deciding to prosecute a fan who clearly loves the show.

What about the legal argument? Does the BBC have a case? On the face of it, the BBC would be correct in their assessment that Mazz is infringing their copyright. TV characters are protected by copyright, and all sorts of fan art would be found to be infringing. However, there is a growing body of literature on the subject of the uneasy interaction between fandom and copyright, as many authors turn a blind eye to non-commercial use of their characters online. Of course, when the work becomes commercial, they will take action.

However, Mazz's case is more complicated, as copyright is less clear about transformative art. Nobody would claim that Andy Warhol does not have copyright over his iconic Marilyn portrait, or his Campbell's Soup montages, even if they use other's IP. Similarly, there have been various cases where the mere transformation for artistic purposes from one medium to another was deemed to have enough originality to warrant its own copyright protection (see for example Alfred Bell v Catalda). However, copy too much and you might be found to be infringing, the prime example is Roger v Koons, pictured above. While U.S. cases seem to be moving against transformative copyright, the same cannot be said for case law here in the UK.

My first reaction when I read about Mazz's knitting case was that this was straightforward infringement, but something kept nagging me. I asked our resident copyright expert Charlotte Waelde, and she remembered some case law which blurs the picture even more. In King Features Syndicate v Kleeman [1941] AC 417, the defendant was accused of having copied cartoon strips depicting "Popeye the Sailor" and placing them in brooches and other media. Although the defendants lost, the issue of the independent design was explored. The Lords found that the figures could constitute designs as protected in the then Copyright Designs and Patents Act 1907. Another relevant case is Anacon v Environmental Research Technology [1994] FSR 659. This case has nothing to do with art, but with circuit design. In this case the defendants made a list of the components in a circuit and their interaction with one another, and then made a circuit on its own that looked completely different to the original. The defendants claimed that the their design was artistic, and therefore different. However, Jacob J found that the actual list was a literary work, and therefore it was subject to copyright protection as such. This is relevant to Mazz's design, as it proves that a knitting design is subject to its own protection, and that it may be dissimilar to the actual artistic depiction of the character. This issue was also explored in Sandman v Panasonic, where Pumfrey J astutely described the dichotomy between design and the item resulting from it to that of musical notation and the resulting tune. Each has its own type of protection.

In other words, I strongly believe that BBC Worldwide's claims are over-reaching. While there could be infringement, I submit the hypothesis that Mazz has done enough transformation to the Adipose character to claim copyright over their design.

The cease-and-desist letter also makes a claim on trade marks. I know next to nothing about this subject, but I would be extremely surprised if BBC Worldwide had managed to register the "Adipose" mark. I did a quick search in the UK-IPO Trade Mark database and I could not find it registered.

Concluding, the BBC may not have a straightforward case if they decide to sue, and they could very well lose. I also believe that they are misplacing their energies pursuing a fan who has done nothing more than to display their love to the show by making a highly original design. While commercial use is not relevant to the infringement case, it should be noted that Mazz was not selling the design, and had actually licensed it under a Creative Commons licence.

So, will the real Adipose please stand up?

Update: I have been dusting off my copyright textbooks looking for more cases relevant to this issue. The important question to me is whether a design arising from a character is an infringement. I have not found anything specifically, but generally copyright protects an original work in most changes of form (say, if a 3D sculpture is made of a 2D image). However, instructions to make things, such as knitting patterns and recipes, are protected only as literary or artistic works, therefore, the item produced from such instructions is not infringing the original design (see Bridgid Folley v Elliot [1982] RPC 433). I have not found a single case however that answers the question of whether there is infringement if the form of the protected character is changed into instructions. Anyone out in the blogosphere know of such a case? Again, Sandman v Panasonic is the closest analogy that I could find, but it is not an exact match.

GikIII

GIKIII
Oxford Internet Institute
September 24-25, 2008

We are glad to announce the third edition of GikII (appropriately renamed GikIII), which will take place 24-25 September 2008 at the Oxford Internet Institute in, errr... Oxford!

GikII is so cutting edge that it is the nano-blade of workshops, so expect all sorts of challenging papers, tenuous legal connections, l33t powerpoint and keynote skillz, uber-geekery, and a healthy dose of lolcatz. Previous GikIIs explored Facebook privacy settings before privacy had become fashionable; it looked at the legal issues in Harry Potter and the Order of the Phoenix, anime, lolcatz, fandom, virtual property and tattoos.

No n00bs allowed.