KAPOW! Revenge of 'City of Heroes'

There is a new ruling in the impressive saga of NCSoft (City of Heroes fame) v Marvel (of Spider-man fame).

For those unfamiliar with the case, Marvel Comics sued NCSoft, the makers of the popular City of Heroes MMORPG game because the game character-design engine allows users to create their own versions of existing copyright (and trade marked) heroes such as Wolverine, Hulk and Spider-man. I have played the game and I must admit that I have seen some large-looking green giants with purple pants called "Hu1k", or imaginatively, "Big Angry Man". The claim by Marvel is that these acts of infringement by players is the responsibility of the game makers.

Needless to say, the case has angered many fans. Does Marvel really mean that people cannot dress in super-hero costumes any more? No, Marvel's argument is that they don't care about Halloween costumes; but if a company has had a great idea for a game that sure beats the games licensed by Marvel, then they will find a way to sue that company.

Anyway, Marvel created characters in city of heroes that resembled their own characters, and then sued City of Heroes using the characters that they had created as evidence. Now the game seems to be up and NCSoft are alleging that these practices have led to loss of goodwill and cancelled accounts. It is now up to Marvel to prove that this is wrong.

Off to dust my old Batman costume.

New issue of SCRIPT-ed now online

The September 2005 issue of SCRIPT-ed is now online. The contents of this issue are:

• [Editorial] Patenting Lives; by Johanna Gibson.
• Los contratos por adhesión en plataformas electrónicas: una mirada al caso chileno (Adhesion Electronic Contracts: A Look at the Chilean Case); by Iñigo de la Maza Gazmuri.
• ‘Show me the money!’ An insight into the Copyright Licensing Agency (CLA) and its interaction with Higher Education Institutions; by Dinusha Mendis.
• About Leechers, Seeds and Swarming – The copyright implications of BitTorrent; by Bob Rietjens.
• Bloomsday: Copyright Estates and Cultural Festivals; by Mathew Rimmer.
• ‘.XXX’ Sponsored Top-Level Domain - Is it a solution to curb child abuse due to Internet Pornography?; by Indranath Gupta.
• Patents on Compatibility Standards and Open Source – Do Patent Law Exceptions and Royalty-Free Requirements Make Sense?; by Mikko Välimäki and Ville Oksanen.
  
• [Review] Lawyers and Vampires –Cultural Histories of Legal Professions, W. Lesley Pue and David Sugarman (eds). Reviewed by John Blackie.
• [Review] Genetics and DNA Technology: Legal Aspects, Wilson Wall. Reviewed by Michael Bromby.
• [Review] International Investment Agreements: Key Issues (Volume I), UNCTAD. Reviewed by Joseph Savirimuthu.

Enjoy!

Servers down?

It is interesting how you come to rely on the internet. The entire web at the university of Edinburgh seems to be down since yesterday. I haven't had access to my email since yesterday, and I feel isolated from the world.

Besides, today is the first day of the semester.

[UPDATE] Servers are back up.

Keyboards: The new security threat

A new security threat has been uncovered. The keys on a keyboard can be digitally recorded and used to determine what's been written. Researchers at the University of California at Berkeley (where else?) have been using a computer program that can pick up more than 90 percent of key sounds and reproduce the text that has been written.

Expect new soundless and keyless keyboards to be released soon.

Could cyber-trespass kill the net?

This is an interesting article in Wired from Jennifer Granick. The author claims that the growing number of cases that require users of other computers for permission before using it to access the internet may stifle innovation. The article starts with some amazing examples of websites coming together to help victims of Hurricane Katrina to find friends and family. But then the article makes a turn and warns that new cases against cyber-trespass threaten such examples. I must say that I did not follow the reasoning jump there.

Granick is correct in the assessment of the growing number of cases against cyber-trespass, used to regulate anything from unauthorised access to wireless networks to spam. Pamela Samuelson has a short article (registration required) with some of the cases. Dan Burk has another good article about this subject. Nevertheless, I think that some of the wider implications of the cases are being exaggerated, and thankfully, these cases may not have equivalent this side of the Atlantic, according to Professor Steve Hedley's paper "Do we need a tort of cybertrespass?", which I heard last week at the SLS conference.

This is an intriguing subject that requires more study.

Mobile payment system fails

This happened a while ago, but I just noticed (it has been a bit of a hectic summer). The mobile payment system SimPay was supposed to become the main manner to pay for stuff with your mobile phone. The idea was for a micropayment system that you could use to buy movie tickets, music downloads and the such. The system may have been doomed by the fact that many mobile companies already offer complicated payment schemes, it all goes to your bill at the end of the month.

GMail trade mark dispute

GMail is Google's email application, right? Wrong! The name had been first used by Independent International Investment Research, a British firm that had a trade mark for Gmail. Google and IIIR have been negotiating but the UK company is sticking to its guns, they probably realise that they are sitting on a gold mine. They are even threatening to sue Google.

There ain't such thing as a free lunch

Yahoo has had to provide access to Chinese authorities to the details of an email account of a journalist accused of being a dissident. The journalist was then convicted and sent to jail for 10 years. The Chinese government exercises heavy control over the internet, with filters that block some domains from the entire Chinese mainland. Blogspot is not available in China.

This is a disturbing story, but it demonstrates the vulnerability of users online. We are all using all sort of free services, chances are you have one account with either G-Mail, Hotmail or Yahoo. Millions use Flickr and Blogspot. Companies are gathering a significant amount of information about us. Most of the times all that will happen is that you will be the subject of some direct marketing, but what exactly will happen when there is something really important at stake? The company will give your information as fast as possible, you are not a paying customer after all. There's nothing wrong with that, businesses have to diminish their liabilities.

Those concerned about the vast amount of information out there may have a point.

Porn is sinful, virus says

A new and bizarre computer virus (a Trojan actually) called Yusufali-A is attacking Windows machines everywhere. The virus will scan the title of the active window and look for the following words:

sex
teen
xx
Phallus
jegger
Priapus
Phallic
Penis
Exhibitionism

If it finds any, then it will display the message displayed above stating how Allah knows what you are doing. The message stays on the screen, but the user will be given an option to "Exit", when they try that, another box is displayed that screams "Oh! No I'm in the Cage". Hell perhaps? As if Windows hell was not enough. Anyway, the screen will remain and the keyboard is locked until the user logs out.

Quite an interesting use of viruses to preach and warn about the dangers of porn, but I am a bit puzzled by the choice of words. When did "teen" become a dirty word? I would also like to know what "jegger" means, but I'm afraid to ask.

SLS

I'm attending the SLS Conference today and tomorrow.

Grokster and KaZaa don't matter

To emphasise the point that the Grokster and KaZaa decisions are irrelevant to file sharing, the latest statistics demonstrate that August has had the largest number of online sharing in history. Internet statistic company BigChampagne has calculated that there were 9.6 million file sharers at any given time.

KaZaa's market share has dropped to only 9%, while eDonkey is the clear winner at the moment with 50% of the market. This could be caused by the fact that eDonkey is faster than other networks because it is using Bittorrent.

KaZaa loses case

Unsurprisingly, Sharman Networks has lost their case in Australia. The Australian Federal Court has finally ruled in the case Universal Music Australia v Sharman License Holdings [2005] FCA 1242. The Court has ruled that Sharman Networks "authorised" copyright infringement. From what I understood from the ruling, "authorising" is the equivalent of the UK's "providing means for making infringing copies" (s 24(2) CDPA), and it is the equivalent of secondary infringement in American law.

The music industry did not get all they asked for, but they got enough. Sharman networks will be liable for the infringement and has had an injunction to stop the infringement. They will also have to include copyright filters in their software. To me, this may very well spell the end of KaZaa, but it will all depend on the amount of the liability.

The thing is that this will not affect P2P networks whatsoever. KaZaa could disappear tomorrow and people will still be using the software, because the network exists independent of Sharman. There are old clients out there, and the software will operate the same without those, but then there are loads of KaZaa clones (such as KaZaa Lite) that also connect to FastTrack, their P2P protocol. And even if FastTrack was to disappear (unlikely), there are many other surviving protocols out there, such as Gnutella, eDonkey 2000, LUSerNet and Kademila protocols.

MusicWorks 2005 Creative Commons debate

Last Friday I took part in a very interesting debate about Creative Commons at the MusicWorks 2005 Convention in The Lighthouse in Glasgow. The panel was moderated by Professor Simon Frith from the University of Stirling, and was attended by David Ferguson from the British Academy of Songwriters and Composers, Florian Koempel from British Music Rights, Jonathan Mitchell Q.C. from Creative Commons Scotland, Ashlyn Eaton from Fading Ways Music UK, and yours truly.

I thought that this was probably going to be a rather hostile crowd because the Convention was advertised as an industry event, but I was surprised that in the end it was not as well attended as I thought, and those present seemed to be less hostile than expected.

The event started with a foreword from Professor Frith, and then I presented a small introduction to Creative Commons. Not much to say about my participation other than the fact that I just gave my "CC for Dummies" presentation. My main point was that Creative Commons is a recognition that the internet has made it possible for everyone to become publishers, and that copyright is now something that happens to all of us, and not just to a few.

The next speaker was Florian Koempel from BMR. Florian did not criticise CC completely, but he said that he was concerned by some legal problems. The first one was that the licences are not "transparent" enough, and that they are not clear enough in the rights involved. He also complained that it was difficult to find the actual legal code on the licence, and that it took him two hours to find it. I was baffled by this, did he miss the clearly marked "Legal Code" link at the bottom of the Commons Deed? Most of his concerns were not warranted, such as the common FUD used against open source and free software licences that "they have not been tested in court". As far as I know, neither has Microsoft's EULA, but I don't see anyone complaining. The most valid point that was made was the potential problem with moral rights in civil law jurisdictions. This, in my view, was the only valid point in his presentation, but he did not really elaborate about it because he ran out of time.

Then followed David Ferguson. We knew that he was going to attack CC fiercely, he has been doing just that for a while, and his rhetoric has been vitriolic and over the top in the past. His presentation was indeed vitriolic, but I was more concerned by the fact that it was purposefully and completely designed to misrepresent Creative Commons in every way possible. The opening tirade was the same spiel about how "You and the band will never earn one penny in publishing royalties from your creation". This is not only untrue, it is mostly the fault of collecting societies, which have not considered CC in their models. Over and over we got the same attack, stating that using a CC licence is the same as "giving away your rights", equivalent to giving away your copyright. The presentation then took a turn into the surreal. Very cunningly, Ferguson started characterising Creative Commons as a personal attack against those who earn their living from copyright, a deliberate attack from academics and "amateurs". There was also a sublte equating of CC and piracy, of CC and file sharing, of CC and the copyfight. The implication was that this is an anarchic movement that wants to take away your right to make a profit, and that it must be opposed. Most interestingly still, David Ferguson used the event to launch his new sharing licence for musicians and composers from his organisation, drafted by a law firm in London. I have tried to find a link to this new licence somewhere in their site, but I have not found it, I will appreciate it if anybody has a link to it.

Then followed Ashlyn Eaton from Fading Ways. Ashlyn was precisely the type of person that can prove the likes of David Ferguson wrong, as Fading Ways is doing well as a CC label. Yet Ferguson and others kept insisting that you cannot make money from CC. Sigh! Nevertheless, there was a warning that CC still has some problems for musicians, particularly some problems with collecting societies.

The final speaker was Jonathan Mitchell. It was great that he was given the last spot, as he descended upon David Ferguson and Florian Koempel and tore them into little pieces. First by pointing out that it was bad form from Koempel to only read the Generic licence and not even care about the two British licences, to his sloppiness in not researching enough about how to find the licence. Then he attacked the many different inaccuracies from David Ferguson with applomb and by providing examples from his legal practice. I just sat there and grinned.

Some of the speakers had taken too much time (Ferguson and Koempel particularly), so the actual discussion was very short. We heard from a representative from collecting societies repeating the "giving away your rights" rubbish, and we had a couple of sympathetic questions.

What still bothers me about the debate is something that I have now witnessed in many discussions about copyright. Industry representatives are always keen on making two points. Firstly, there is the argument that the public domain is not free. They argue that the public domain takes money to be maintained. The fact that this is not always true, and that where it is true the maintenance is done with public money seems to elude them. Secondly, there is the strange argument that industry people always present themselves as "making their living from copyright", and that there is very clearly an "us and them" mentality. We are the true keepers of copyright, they tell us. We are the ones making a living, so you just shut up. David Ferguson made this argument several times. We are academics, and amateurs, they are professionals. The problem with this vision is that it is not only false, it is demonstrably false. Copyright does not exist solely as an economic right, it is awarded regardless of quality and/or commercial worth. This immediately destroys the argument that somehow only those who make money from their works should have a say on copyright. In the digital age, we are all creators, we are all publishers, copyright is no longer something that happens to other people. Whether they like it or not, my works have as much copyright as Mr. Ferguson's compositions.

Besides, what's wrong with being an hobbyist? An academic? Mr. Ferguson may have heard of some hobbyists. JRR Tolkien, JK Rowling, Albert Einstein. Hobbyists and academics, I'd rather be in their company.

Update on "Stealing booty"

I was not able to attend the "Stealing Booty" event I advertsied last Friday, but some other copyfighters (am I a copyfighter now?) were able to attend and have given some very good reports. The first one comes from former student Jordan Hatcher, who wrote a very good article here.

The other report comes from music enthusiast Paul Harkins. Paul comments that:

"The lawyer on the panel talked about the protecting the value of IP and the representatives from PACT and the UK Film Council outlined the mechanics of the film industry and how those involved in making film lose income from counterfeit copies. They stressed that small producers are the ones who will suffer but an audience member made a good point that producers in Europe should be more concerned about the current stranglehold over distribution than piracy.

The most entertaining interventions were made by Nick Love, the director of The Business and The Football Factory. The latter was one of the most pirated films in the UK but took £1 million at the box office and sold 500,000 DVDs so his attitude to piracy was laissez faire to say the least. One of his mates who had seen a pirated copy had complained that it was too long to which he replied: 'that's because I've still got 3 months to edit it!'"

Thanks to Paul and Jordan for their emails.

The Commonistas Strike Back

Seems like Andrew Orloski of The Register is at it again. I don't know if he has a personal problem with Creative Commons, but he seems to be on a crusade against CC. This time he is reproducing some letters and continuing his comments against the global licensing movement. We see a repeat of many of the arguments posed before, and some new ones. The first thing that we get is a selection of letters in favour of Mr. Orlowski's views. Hardly surprising, but then he starts his article by stating that:

"The use of an irrevocable Commons license, which effectively ends any hope of the artist being compensated by the creative industries, doesn't seem fair or sensible for most readers."

We keep hearing this, but I see no evidence of such an assumption. The first thing to point out is that this assumes that most people create with profit in mind. This is of course, a ridiculous assumption, as the internet proves without a shadow of doubt. People will create for all sorts of reasons, including profit, but to assume that the licences are not sensible or fair because there may be no hope of future profit misses the entire point. It is also not true that the licences do not offer any hope of profit to artists. There is a growing number of successful examples of people who manage to profit even while using Creative Commons, such as the good people at Fading Ways.

In general, the entire article rests on that faulty assumption. Orloski repeats the mantra that people cannot profit from Creative Commons, with no hope of any evidence to support that assumption. The fact that the licences are irrevocable is not relevant whatsoever. If you release a work with a CC licence, the irrevocable nature only means that those who have acquired rights will retain those rights in the future. You can still change your mind and stop releasing the work with a CC licence if you want, and even remove the work from the internet altogether. You can also negotiate rights in the future for commercial uses (if you are using a non-commercial licence).

Mr. Orloski should do his research in the future. It is painfully obvious that, despite protestations to the contrary, he still doesn't get CC.

Pirates of the Multiplex

(The article may require registration). Once again we are being warned that movies are in danger of becoming a thing of the past by internet pirates and DVD-copying rings. This is another article that warns that movies will become impossible because of pirates. I have many problems with the underlying assumptions here. The first one is that we have yet one more article that conflates DVD-burning and bootleg-selling to P2P and internet downloads. Then the movie industry claims that they have lost $3 billion USD in sales due to piracy. How do they calculate that? They keep assuming that a download or a person who buys a dodgy DVD would have purchased their product anyway, which is not proven.

We then get another serving of the horror stories of movies downloads. We are told once again how Star Wars Episode III was downloaded before it made it to the cinemas, but there is no mention that the movie earned $834 million USD worldwide in ticket sales. Then we are told that 100 thousand people downloaded "War of the Worlds" online ($570 million USD worldwide gross).

Then we are treated to a bizarre description of cammer rings, where people actually go to the movie and film it, then offer it online. The FBI is after them. Perhaps I am a bit naive about this stuff, but I really cannot see that a person will not go to a movie and will prefer to spend hours downloading a lesser quality picture. Have these people considered that people are still going to the movies, and downloading the work so that they can view it again before the DVD comes out?

Then we get to the real meat of the article, the bootlegs. I am amazed by the fact that the phasing between both activities is made almost without a glitch. They are both parts of the same coin. The fact that people in Peru cannot buy full-priced DVDs is not really mentioned.

Network Law: citations

I keep thinking that there may be a new subset of IT Law called Network Law, interested with the formation, regulation, and study of networks. An article in The Economist is making the usual rounds through the blogosphere describing an interesting paper by Seth Chandler of the University of Houston, where he maps the network of U.S. Supreme Court decisions and discovers that there is a scale-free topology at work. Apparently, some older cases about Federal Jurisdiction are the hubs on the network.

This is yet another interesting use of the mathematics of networks. I am sure that in the near future there will be many other applications for such studies in the law.

Silly Saturday post

So, the Llama song was a hit, so I will continue with the silly Saturday tradition. Here are the Ninja Kittens from RatherGood.com, the best site on the net. As contagious as the Ninjas are, my favourites are still the Angry Kittens, with the Viking Kittens following in a close second (there's something about a kitten wearing an axe and a viking helmet that always makes me smile).

P2P suits, chilling effects, and a last stand

So, the MPAA is filing 286 more "John Doe" suits against internet users from logs obtained from old bittorrent sites LokiTorrent and SuprNova. I am sure that those who paid money to LokiTorrent to mount a legal defence will be feeling a bit silly by now, and proves that those logs were indeed important, as we predicted back in February.

This could lend credit to those who claim that the effects of Grokster are starting to be felt. According to an article in The Guardian, the chilling effect of the Grokster ruling on technology may hinder the development of new digital advances. The argument presented is that venture capitalists are abandoning file sharing technologies and investing in safer ones. This may be an accurate picture of what is happening, but I think that it is too early to tell because a lot of the most innovative P2P technology has been developed by hobbyists (Napster and bittorrent for example).

On the other hand, there are some more positive shifts in the copyfight (positive for us, the pinko-leftie commies that is). First, there is the amazing report that a new UK ISP will allow its users to share files from the Sony BMG catalogue. And then there is the very interesting case of a New York mother that has decided to take on the industry and fight a suit by the RIAA. It will be interesting if the RIAA will fight this, it could turn out to be a disastrous PR exercise, but many of us fear that this has gone beyond PR. They are suing dead people anyway.

Piracy: Stealing Booty

This is an event at this year's Edinburgh Film Festival. From the event's advertising blurb:

"Why should you care about film and video piracy if you can get a DVD cheaper than the retail price? Film piracy is theft. Black market DVDs are not just terrible quality but deprive the filmmakers of millions in income each year. And unauthorised downloading and file sharing of films is illegal. Last year the Federation Against Copyright Theft (FACT) confiscated almost 3 million pirate DVDs. Why should you care? Come and talk with the industry experts about film piracy can and see a popular feature film which looks so much better on the big screen than on any pirate DVD or download!"

I have some comments about the many mistakes and faulty assumptions in this paragraph, but I really don't like swearing in public.