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.

Regulating gold farming

I'm in Malaysia for a WIPO seminar on the software industry (note to self: in the future, stay away from water and ice). Yesterday there was an interesting session on the gaming industry in the Asian region. The representative from the Japanese software industry gave statistics on the subscription-based online gaming market. By 2006, there were 660,000 people playing subscription-based games (of which 90,000 were female). Laura Ho from the Malaysian Multimedia Development Corporation had an interesting take on virtual property. While it is clear that some games make claims over ownership of virtual goods, what happens in exchanges between two players? While the actual ownership over the intellectual property may be clearly delimitated through licences, what is the relationship between users?

This made me think about the growing economic importance of virtual economies, but also brought me back to my own experiences with gold selling. On the plane in I read an article in Edge magazine on the behind-the-scenes work of support staff at NCSoft Austin. A prominent part of the interview talked about the problem of gold farmers, and about the amount of resources that go into curbing farming. Support staff are very much aware of the activities of gold farming, so they claimed to conduct account banning, as well as being familiar with Chinese IP addresses. One of the claims is that farmers are given away by sudden large earnings, or by unusually large transactions.

Farming is clearly aganst most EULAs, but I was wondering about the extent of policing excercised. For example, I think that whatever the evils of farming, the underground economy could actually be good for a game. Farmers must be subscribers after all, and many other virtal inhabitants appreciate access to gold without countless grinding hours.

Jail for priests over copyright infringement?

I was surprised to find this story on the front page of Saturday's Guardian because it shows the growing importance of copyright questions in the mainstream press. However, I was less impressed with the article's content. The headline tells us that "Polish priests threatened with jail for plagiarising sermons". Quite an impressive claim, and definitely a headline-grabbing topic. Plagiarising priests behind bars, it doesn't get any better than this, right?

Certainly, if the priests are lifting entire sermons from online sources, that is clearly copyright infringement, besides being morally dubious, and potentially a sin if one considers it as theft. However, nowhere in the text of the article there is evidence for the claim that the plagiarising clergy will be thrown into jail. Copyright infringement is mostly enforced through civil remedies, and very rarely there are criminal implications for casual copiers. So, maybe Polish copyright law is different? Polish copyright law punishes with two years of imprisonment for two years for "any person who usurps the authorship or misleads as to the authorship of all or part of the work or performance of another..." So in theory it is possible, but this does not seem like something that would be enforced.

Confessions of a gold buyer

Meet a typical level 70 human mage (name and server omitted to protect the innocent). He has reached highest level, so what is he to do next? Embark on the endless pursuit of better gear and epic mounts! But he cannot compete with those kids that spend all day in front of their computers and farm gold like it is imminently going to reach the peak of the production curve. Our mage has places to be, people to meet, conferences to attend, articles to write.

Enter the gold sellers. They spam the public channels day and night. "Welcome to Happygold.net, we sell you 1000 golds for only €25 euros". The mage knows that this is wrong. Those gold farmers are actually kids in China working in depressing conditions, nothing but a techno-sweat-shop. Gold selling inflates prices and demeans the game. It is a form of cheating, as it erases the need to grind for hours to obtain the reward. Yet, you want that fast mount so that you can fly through the skies of Outland at a decent speed. Then there is the issue of writing and talking about virtual worlds and virtual economies, yet never having conducted a real-world online monetary transaction. The mage tells himself that it is all right, it is all in the name of scholarly legal research.

He fires up his PayPal spell.

Choosing the gold seller is a tricky endeavour. He has been writing down names of in-game gold sellers (proving unfortunately that channel spam does work). He weeds out those which are too pushy or annoying. He then goes to several sites, and further filters out the ones which have not even bothered getting their sites in decent English. He then compares prices, and selects one with a 10% extra gold offer, and which also has a well-designed website and decent interface (sloppy coding is a sign of sloppy thinking). He types in his European server, his faction and his character, and selects that he wants to buy 1000 gold. PayPal comes up, requests the password, and the transaction is complete. Was that it? It was way too easy!

Ten minutes later the mage is slowly flying around Netherstorm in his non-epic mount, when he receives a private message:
"Hello, this is happygolds.net" (not the real name of course).
"Oh, hi! Err... how do I do this?"
"Come to SW"
"OMW "Being a mage has the advantage of teleportation, so our hero swiftly materialises in Stormwind, where he is invited to a group by a Level 1 player.
"Meet me at the bank" it says.
"Ok, I'm there". A generic Level 1 warrior shows up, goes into the Guild vault, clearly withdraws something, and the trade screen comes up. He transfers 1000 gold just like that, says "Cya" and disbands the group and logs out in front of your eyes.

Our mage is left experiencing a maelstrom of conflicting emotions. There's glee at the fact that he now can afford his epic mount. There's a good amount of guilt, peppered with the strange sensation that one has just participated in an illicit act, thrown in with a hint of amazement at how fast, easy and painless the whole process was. £20 GBP gone just like that, converted into a virtual currency that can be used only to spend virtual goods.

The immensity of the economic implications of the transaction finally start to dawn. No wonder Sweden is considering taxing in-game economies. The amount of money changing hands must be huge!

Now, off to get that Swift Blue Gryphon.

Harry Potter and the Maze of Fair Use

I have been following with interest the ongoing litigation between one Joanne Kathleen Rowling and Steven Vander Ark (a Rowlingian name if I ever saw one), the maker of the Harry Potter Lexicon, but until now I have been silent as the intricacies of American Fair Use are as much of a mystery to me as the arrangement of a Hippogriff's entrails. Edinburgh's most famous authoress is suing the maker of the Lexicon in a New York court alleging copyright infringement over the publication of the Lexicon in printed form. The merits of the case are discussed elsewhere more intelligently, but I have been struck by the strength of the interest by the UK mainstream media on the case. In retrospect, this should not be surprising, as the British press have been starved of access to Rowling due to her famous seclusive nature. There are articles describing her outfits, comparing her to the Queen, et cetera, ad nauseam, and all the rest. But there have been a couple of articles in the British press that caught my eye and prompted me to write a few lines on the case.

Joan Smith in The Independent writes that JK Rowling is justified in bringing up the suit because she is fighting for the rights of authors everywhere. She comments:

"... the lexicon isn't an encyclopedia in the normal sense, consisting of facts that are in the public domain, but something parasitic on years of hard work by Rowling. Her present bank balance is irrelevant to the case, except in so far as she is one of the few British authors who can afford to sue when their work is used without permission or payment; in that sense, she is defending the rights of thousands of writers, most of whom don't earn enough to live on."

Ms Smith should perhaps inform herself of the particulars of the case before writing. The Lexicon is indeed akin to a reference work, even if it is based on other people's work. Derivative reference and commentary of other work has been with us for years, and it has always been a legitimate endeavour. Heck, by Joan Smith's standards, most modern scholarship would go out of the window. I know people who have made their careers out of interpreting and re-interpreting Lacan.

Joan Smith follows with the inane and lame argument about how most writers do not earn enough to make a living, while trying to tie this fact with the internet. She says that "British writers are struggling to survive and badly hit by unauthorised use of their work on internet; at a time when half of UK households have a broadband connection, fewer than 15 per cent of authors have received any payment for online use of their work." I may be mistaken here, but where can one find this wholesale pirating of written works? I am aware that it exists, but I truly do not know of anyone who has illegally downloaded a book instead of buying it. The phenomenon described is due to the market, and the fact that the book market is geared towards few hits, and most authors do not make enough out of their work.

Smith seems to have a problem with the internet. In a line that reminds me of Andrew Keen, she says:

"What's weird about this is the way in which some readers change their attitude completely when they're confronted with the notion that writing is work and should be paid for. Bloggers are the worst offenders, hiding behind pseudonyms to complain that the law of copyright is an attack on free speech."

The chain of non sequiturs (see what I did there?) in that sentence is astounding. Somehow, being a blogger is not writing, and it is not hard work. Somehow, those bloggers do not like paying for written work (I am surprised, as my bookshelves are filled with, for lack of a better word, books). Not only do they not like paying for stuff, they are cowards hiding behind pseudonyms (*checks name on the right-hand side*). On top of all that, those dastardly free-loading cowardly internet people think it's all about free speech. Witness the dried stalks flying as Jane Smith beats that poor straw man to death.

The funny thing is that no, this case is not about free speech, it is about the American system of Fair Use. The question is simple. Is making a derivative work based on other work copyright infringement, and if so, is such use fair use? As I said, I do not know enough about this to give an educated opinion, but my guess is the fact that Rowling and Warner Brothers have admitted to using the Lexicon before will count against them. Sam Leith in the Telegraph has a very interesting take on the case, and astutely recognises that this is all about reference materials.

Personally, I just think that Rowling should be indicted for making a mess of her last book, but if we sued authors for destroying their own creations, surely George Lucas and Robert Jordan should be first in line.

New reasons to buy a Mac

The video speaks for itself. Can you spell "desperation?"

BitTorrent traffic still growing

Ars Technica has an interesting story on the continuing growth of BitTorrent traffic, yet the head of anti-piracy operations at the MPAA says that things are getting better.

The problem for those figthing BitTorrent traffic is that sites are one Google search away, regardless of which tracker site you prefer. Google "galactica torrents" and the first page is filled with tracker sites where you can download the show. This is why the current legal battle against sites such as The Pirate Bay are doomed to fail.

British music industry says no to private copying

(via Out-Law). The Music Business Group, which brings together all of the collective music industry associations, has issued its Response to UK IPO consultation on copyright exceptions. Just when you think that the music industry cannot sink any lower, they go and surprise you with documents like these. Amongst the many things covered, the music industry seems determined not to give up the prohibition on private copying existing in the UK. For readers outside of these shores, UK copyright law does not allow for private copying, so every time I rip my CDs into my iPod I am infringing copyright. I know, it is a barbaric legal quirk, one of those outdated legislative fossils that comes to us from the time of tape recorders and 1200 b/s modems.

The UK IPO is conducting a consultation to implement the recommendations of the Gowers Review with regards to private copying, namely, that there should be a strictly limited 'private copying' exception to enable consumers to format-shift content they purchase for personal use. The MBG does not seem to like this, and their recommendation is:

"We need to redress the balance which underpins copyright - one that allows consumers to enjoy their music, drives technological innovation, yet recognises music creators’ and right holders’ place in this market. Our proposal creates an easily-implemented, flexible, futureproofed and transparent solution: an exception subject to licence."

How is this licensing scheme going to work? The MBG wants to impose a levy on manufacturers of "devices substantially used or marketed for making copies of music." I am guessing this would include CD-ROM and DVD-ROM manufacturers, as well as digital players. It is also possible that this levy will then be transferred to the consumer as increased cost, in which case we would end up paying for it.

The reasoning leading to the proposal is bizarre to say the least. The BMG recognises that a lot of the music in digital players is the result of format shifting. They cite research by Music Ally which shows that 51% of music in digital players is from owned CDs, while only 9% is purchased, which leaves 40% of unpaid music.

Music in digital players

This is one of those half-full half-empty moments. If you wanted to be positive, you would say that this is a great finding for the music industry, as it is evidence that 60% of the content of the average iPod has been paid for. However, they do not see it that way. They see that large 51%, and they want a cut, regardless of the fact that this has already been paid for. When looking at the chart above, it is clear why we need to change the law, but why do we need a levy? As things stand, the music industry has kindly stated that they will not enforce private copying. So at the moment, they have clearly specified to consumers that private copying is fine. How on Earth do they think that they can now ask for a levy? They claim:

"The Government faces a marginal trade off. Should this policy be passed, it has changed the law and, whilst this might not appear to change behaviour, it does widen the gap between value and utility yet further. Put another way, it increases the gap between a consumer’s willingness to pay for music content and hardware by making hardware relatively more valuable to the content. So, for example, if a consumer had a utility value of £100 per annum on music, of which 2/3 was taken up by the cost of an iPod and the residual on CDs and iTunes, that balance can be expected to shift towards hardware as a result of increased transferability of the content. Interventions should narrow the gap, not widen it."

This reasoning is so convoluted that I do not know where to begin. They seem to be saying that institutiong a private copying exception will further erode their rights, as it will make the digital player more valuable that the content that fills it. Consumers do what seems fair with their CDs and rip the content, but the music industry sees this as behaviour that must be changed. While a private copying exception will not change behaviour, they argue that it makes music less valuable.

I am off now to wilfully engage in copyright infringement while I still can (in other words, I'm going to listen to music on my iPod).

SCRIPT-ed April 2008

The April 2008 issue of SCRIPT-ed is now live. This issue is filled with excellent material. There are some very relevant and timely articles on the P2P debate, and also on the German Constitutional Court decision with regards to Trojans. Another very intriguing article about trade marks and the No Logo movement. The contents are:

Editorial

• Lex Personalitatis & Technology-driven Law
  Joseph A. Cannataci, pp.1-6
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Reviewed Articles

• Trade Mark Coexistence Agreements: What is all the (lack of) fuss about?
  Matthew J Elsmore, pp.7-30
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• Criminal Friends of Entertainment: Analysing Results from Recent Peer-to-Peer Surveys
  Herkko Hietanen, Anniina Huttunen, Heikki Kokkinen, pp.31-49
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• Entry into the Market for Online Distribution of Digital Content: Economic and Legal Ramifications
  John B. Meisel, pp.50-69
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• The Black Label: Trade Mark Dillution, Culture Jamming and the No Logo Movement
  Matthew Rimmer, pp.70-138
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• Oscar Pistorius and the Future Nature of Olympic, Paralympic and Other Sports
  Gregor Wolbring, pp.139-160
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Analysis

• Genetic Models of Disease Resistance in Livestock: “What Does Our Conscience Want?”
  Kenneth M Boyd, pp.161-167
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  Corporate Counsel's New Dance Partner: "Criminal Lawyers Teach the Limbo Dance"
  Maureen Duffy-Lewis and Daniel B. Garrie, pp.168-175
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• A Modest Proposal for Annotating the Dialectical State of a Dispute
  Ronald P. Loui, pp.176-197
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Reports

• TILT – Tilburg Institute for Law, Technology, and Society
  Paul de Hert, pp.198-204
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Book Reviews

• The Global Technology Revolution 2020: In Depth Analysis - Bio/nano/materials/information Trends, Drivers, Barriers, and Social Implications
  by Richard Silberglitt et al.
  Reviewed by Carolina Botero , pp.205-207
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• The Ethics and Governance of Human Genetic Databases: European Perspectives
  by Matti Hayry, Ruth Chadwick, Vilhjalmur Arnason and Gardar Arnason (eds.)
  Reviewed by Adrienne Hunt, pp.208-213
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• Bioethics and Armed Conflict: Moral Dilemmas of Medicine and War
  by Michael L. Gross
  Reviewed by Michael H. Kottow, pp.214-217
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• How Universities Promote Economic Growth
  by By Shahid Yusuf and Kaoru Nabeshima (eds)
  Reviewed by G Narasimha Raghavan, pp.218-219
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• Crossing Borders: Cultural, Religious, and Political Differences concerning Stem Cell Research. A Global Approach
  by Wolfgang Bender, Christine Hauskeller, Alexandra Manzei (eds)
  Reviewed by Michael Steinmann, pp.220-223
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• Broadcasting Pluralism and Diversity: A Comparative Study of Policy and Regulation
  by Lesley Hitchens
  Reviewed by Eliza Varney, pp.224-226
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European Parliament votes against three-strikes

(via Philippe Aigrain) There has been a bit of an overload on the three-strikes proposals these last few weeks, but I think that this is really important. The European Parliament voted last Wednesday on report A6-0063/2008 on Cultural industries in Europe. The report originally looked the the average pro-copyright industry document, although it stated that "criminalising consumers not seeking to make a profit is not the right solution to combating digital piracy."

Interestingly, the document's rapporteur Guy Bono has clearly been following the debate on the three-strikes proposal. Much like yours truly, he recognises that cutting-off internet service to an infringer is a disproportionate response in the digital age. He commented that:

"On this subject, I am firmly opposed to the position of some Member States, whose repressive measures are dictated by industries that have been unable to change their business model to face necessities imposed by the information society. The cut of Internet access is a disproportionate measure regarding the objectives. It is a sanction with powerful effects, which could have profound repercussions in a society where access to the Internet is an imperative right for social inclusion."

Excellent point. The parliament agreed, and adopted the inclusion of the following paragraph to the report:

"Calls on the Commission and the Member States to recognise that the Internet is a vast platform for cultural expression, access to knowledge, and democratic participation in European creativity, bringing generations together through the information society; calls on the Commission and the Member States, therefore, to avoid adopting measures conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness, such as the interruption of Internet access."

I believe that this may prove to be the tipping point against the ludicrous three-strike policy. ISPs are clearly uneasy about becoming enforcers (and they should). Everyone with more than two functioning neurons has been able to recognise that the proposal is unworkable. Now the European Parliament has thrown its weight against the policy. One hopes that this may prove to be the death of this proposal.

The ISP rebellion

Much virtual ink has been spent discussing the latest attempt to shift liability for illegal file-sharing back to the intermediaries. UK ISPs are said to be in negotiation with the British Phonographic Industry in order to turn them into enforcers. ISPs are supposed to disconnect illegal file-sharers after other disciplinary action has been taken. No ISP had spoken against such action, but last week, the chief of Carphone Warehouse has come out and attacked the plans as the unworkable mess that they are. He said that "I cannot foresee any circumstances in which we would voluntarily disconnect a customer's account on the basis of a third party alleging a wrongdoing." a brave position in my opinion. I have already said that turning ISPs into an enforcer of IP rights cannot be done, and disconnecting an entire family's internet service for the sins of one member seems rather extreme. Just wait for the first news item recounting Little Ian's trouble with his homework because of the Big Bad Music Industry, and you will see just how this plan is doomed.

However, things could get messy for Carphone Warehouse. The BPI has called their response "irresponsible", and according to the Daily Telegraph, the BPI has threatened them with legal action if they do not comply. Apparently, they sent a fax which says:

"... unless we receive your agreement in writing that within 14 days Carphone Warehouse will implement procedures set out above, we reserve our right to apply to court for injunctions and other relief without further notice to protect our members' rights."

This is clearly where the music industry's strategy lies. It has been trying to get agreements of enforcement from ISPs, but the underlying threat has always been legal action. Comply or else.

I hope that the Carphone Warehouse sticks to its guns. For starters, we may get a clear ruling defining ISP liability once and for all. I would also believe that Carphone Warehouse has a good chance of winning the case, which would be more problematic for the music industry than it is for the ISPs. If they fail in this tactic, what will they try next?

Anyway, the BPI are barking up the wrong tree. New research clearly indicates that the problem of sharing music is not an online problem, it is people sharing music with their friends, just as it has always been. We haven't really moved much from the good old days of the mix tape it seems. And then we get Feargal Sharkey telling us that unless this is stopped, musicians will stop making music. Somehow, I do not think so.

Microsoft wins OOXML standard

The geeks are up in arms because Microsoft has won approval of its much maligned Office Open XML (OOXML) format as an open standard. The International Organization for Standardization (ISO) has finally allowed OOXML to become an international standard after its initial rejection last year, but the decision still can be appealed.

Why is this controversial, and why should we care? You may already be familiar with OOXML, if you own Office 2007 (or 2008 for Mac), then you are using it; you know, the annoying .docx file format that is not fully backward compatible. However, the format is much better than previous XML schema used in the likes of Office 2003, and despite the many problems with backward compatibility, I must admit that it does produce nice PowerPoints. One problem highlighted with the OOXML is that it is protected by various patents. While holding a patent over a standard technology is not such a problem, Microsoft's history of abusing a dominant position has made some people nervous. Under current standardisation practice, patent holders must offer their patented technology subject to standard approval on a Reasonable and Non Discriminatory basis (RAND). Arguably, Microsoft has fulfilled this requirement by issuing the
Microsoft Open Specification Promise, a unilateral promise of non-enforcement of their claims on OOXML. Nevertheless, many people have been suspicious of the promise.

The other problem with the OOXML format is that it has been pitted against the Open Document Format (ODF), the one favoured by the open source community and developed for the Open Office project. The ODF has already received ISO standard approval, which has raised questions about the need for a competing standard. There have also been serious issues about OOXML's approval procedure, with accusations of bribery and worse. The accusations have been so strident that there is talk of further action by the European Commission.

I must admit that at the moment I have not made up my mind. While I am disturbed by the many reports of browbeating and corruption, I am somehow troubled by the strident opposition from the open source community against the format. ODF has already been approved, and I believe that the battle should take place with the consumer. Open Document proponents should fight to make Open Office better, so that it will get wider adoption. In my experience there is a good window of opportunity at the moment, as Office 2007 has failed to capture the market, much like Vista has failed to dominate. Open Office and the Open Document standard then should take the fight directly to Microsoft, not at the ISO, but at the PC.

Users liable for phishing and hacking

(via Out-Law) Who should be liable if a consumer is the subject of a phishing attack? At least in the UK, the common banking practice has been to assume some or all of the losses incurred by the customer. This is about to change with the new Banking Code. The Banking Code is a financial services self-regulating document which institutes a number of best practices and rules for financial services, and it is offered by the British Bankers' Association, the British Building Societies Association, and the UK Payments Association (APACS).

One of the recommendations to consumers set out by the Banking Code is to maintain one's computer secure by using updated anti-virus software. Seems like sound advice. However, this one comes with a barb. If the consumer does not fulfil this requirement, he/she may be liable for losses arising from fraud, phishing or other online scams or attacks.

The issue stems from the follwing articles:

10.3 "If we confirm a transaction is unauthorised, we will refund any interest charged, unless you have acted fraudulently or without reasonable care. [...]
12.11 "If you act without reasonable care, and this causes losses, you may be responsible for them. (This may apply, for example, if you do not follow section 12.5 or 12.9 or you do not keep to your account’s terms and conditions.)"

What does section 12.9 looks like? It contains the following advice:

• Keep your PC secure. Use up-to-date anti-virus and spyware software and a personal firewall.
• Keep your passwords and PINs secret.
• We (or the police) will never contact you to ask you for your online banking or payment card PINs, or your password information.
• Treat e-mails you receive from senders claiming to be from your bank or building society with caution and be wary of e-mails or calls asking you for any personal security details.
• Always access internet banking sites by typing the bank or building society’s address into your web browser. Never go to an internet banking site from a link in an e-mail and then enter personal details.
• Follow our advice – our websites are usually a good place to get help and guidance on how to stay safe online.
• Visit www.banksafeonline.org.uk for useful information.

I am confused about the last two. Are those recommendations or requirements? Similarly, how would a bank determine that your anti-virus was out of date? How will a financial institution determine that your PIN and password are secure? Similarly, I receive an email from my credit card provider every month with a link to their website. Does that violate the requirement for accessing the website only by typing the address into the browser?

While I agree that users should be proactive in protecting their data and avoiding scams, I am not sure that this list can be enforced. Thankfully, the Banking Code is only soft law.

Blackboard's patent on the way out

(via Ray Corrigan) I have been following the saga of U.S. Patent 6,988,138 protecting "Internet-based education support system and methods". After winning an injunction in a Texas court, Blackboard has seen 44 of its claims knocked out in a preliminary injunction by the USPTO. Ray has a comprehensive report, so I will not repeat it.

Blackboard's claim exemplifies everything that is wrong with software patents. Theirs is a patent that should not exist, and if there is any justice in the world, it will be repealed and <Hugo Weaving> cast back into the fiery chasm from whence it came </Hugo Weaving>.

Think of the children

The British press is going through a feeding frenzy, as tabloids and mainstream media outlets try to outdo each other in reporting the threats posed to children online. The Daily Mail warns us that "Millions of girls using Facebook, Bebo and Myspace 'at risk' from paedophiles and bullies". Even by its low standards, this has got to be the most misleading headline in the history of Internet reporting. The Daily Express tells us that "Parents warned of website predators". A word of advice to the good folks at the Daily Express, update your stock photographs to reflect that the century has changed.

At the heart of the media feeding frenzy is a report by Ofcom (full report here, thanks Daihí!) that warns parents about the potential dangers of social networking sites. What seems to be a measured study has been translated by parts of the press into yet another cluster of accusations that the Internet is filled with predators and filth.

This of course comes on the tails of the Byron Review entitled "Safer Children in a Digital World". I have finally gone through the report, and I am troubled by some of the broader claims made. While I applaud the attempt to make evidence-based policy-making decisions, I am afraid that the Byron report is long on speculation, and short on sound evidence. I was particularly struck by the Review's treatment of gaming. While it recognises that there is little evidence on the harms of violent video games, it goes on to make some tenuous links to ethnographic evidence that it may be harmful. Online gaming was cited as a particular worry, although here the evidence was even thinner.

The public perception of the internet as a bad place is one of my pet-peeves. I am amazed by how easy it is for journalists to paint the online world as a scary place full of monsters. There is a sector of the British press that relishes any chance to scare parents silly about the dangers of the virtual world, when children are still vulnerable from the usual threats. Bullying and abuse take place as they did before the internet, and the actual recorded cases of grooming do not warrant the volume of the coverage.

Should we think of the children? Of course! The Byron Review is not bad, it has some sensible ideas about online safety, privacy, and self-regulation, but responses should be proportional to the actual threat posed.

Update: Open Education has two excellent posts on the Byron Report, one on the Internet findings, the other one on the video game issues (thanks to Tom Hanson for the heads up).

Who broke the Internet?

The Internet is broken. You may have noticed some of the signs: slow connections, sluggish downloads, constant disconnections, lost emails, tons of spam. Who broke it, and how can we fix it?

This was part of a very interesting talk by Chris Marsden at BILETA 2008, an earlier version of which can be found on SCRIPT-ed. At the heart of the topic of network neutrality lies the very real fact that there is a serious problem with current architecture. Bittorrent protocol is a wonderful way of transferring large files, but it is resource-heavy. Small number of users can hog as much as 70-80% of the network traffic at any given time.

How can this be stopped? Many ISPs have started working on traffic-shaping, throttling, and using other restrictive tools. The justification for these practices is that by throttling bittorrent protocols, it is possible to make sure that the rest of users will not see their service affected. In an unfair situation, placing caps on protocols guilty of hogging the network would be a good idea. To me the "gotcha" moment came when I saw a chart by George Ou, presented at the Network Neutrality hearings in Washington. To me, this is incontrovertible proof that Something Must Be Done:

The problem is of course that current solutions to the problem, such as rate limiting, are inherently unfair, as they castigate the legitimate and occasional bittorrent user as well as the hardcore seeder. It also can be partially circumvented through encryption, although I have heard it on good authority that encryption can be easily shaped.

Bob Briscoe, a researcher at BT, is proposing a change to the network architecture that has been in place since 1986. Current TCP/IP traffic is handled through the additive increase/multiplicative-decrease (AIMD) algorithm, which shapes current congestion through the network. Briscoe and others argue that the current algorithm is unfair as it allows a bittorrent user to open many streams for sharing the same content, while someone browsing will only use one session, which favours the bandwidth hog in detriment of the normal user. The proposed change is to allow for a weighted TCP algorithm, which will allocate similar bandwidth to users, regardless of the number of streams they have open at the same time.

I find Broscoe's proposal elegant and logical, but most importantly, I like the idea of fixing an architectural problem through architecture. Amongst all of the regulatory debates about the subject, I find that the best solution is not to legislate, but to fix the broken protocol.

Now, if I can only get my BT Vision box to work, I will be a happy man.

Selling out?

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

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

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

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

Everyone loves llamas.

COMMUNIA Workshop

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

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

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

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

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

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

---------------------

About COMMUNIA

The COMMUNIA Thematic Network aims at becoming a European point of reference for theoretical analysis and strategic policy discussion of existing and emerging issues concerning the public domain in the digital environment - as well as related topics, including, but not
limited to, alternative forms of licensing for creative material; open access to scientific publications and research results; management of works whose authors are unknown (i.e. orphan works).


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

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

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

Why do you hate America?

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

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

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

Do WoW autopilot bots infringe copyright?

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

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

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

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

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

Computer programs are not software, UK judge says

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

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

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

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

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

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

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

Then he identifies the contribution:

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

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

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

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

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

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

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

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

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

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

Symbian ruling will be appealed

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

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

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

ISP police, Sweden says no

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

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

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

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

ISP liability, round two

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

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

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

Firefox 3 beta 4 released

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

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

BILETA panel on open access

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

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

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

Microsoft blues

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

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

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

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

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

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

Cyberterrorism and virtual worlds

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

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

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

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

Blackboard wins e-learning patent suit

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

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