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.