Tag: ip

In the last couple years, I’ve earned something of a reputation for giving Creative Commons a hard time. This fact hit home a few weeks ago when a reporter for the San Antonio Current called me up to get "the other side" on a story he was doing on CC. Apparently, the journalist had found my name in the criticism section of Wikipedia’s Creative Commons article.

Now, while I’m not happy with CC’s reticence to take a normative stance of any kind and I’m not thrilled with many CC licenses that don’t respect what I believe are essential freedoms, I should give credit to CC where credit is due.

Over the past half year or so, I’ve had the pleasure of helping represent Debian in conversations between a Debian team and folks at CC to help iron out a number of nits with the CC licenses that seemed to be (unnecessarily) creating barriers to Debian blessing some more permissive licenses as DFSG free. Throughout this process, folks at CC have been helpful, responsive, flexible, and seriously willing to make changes based on our suggestions.

The first and hardest stage of this work culminated with CC’s release of the discussion draft of their 3.0 licenses. Evan Prodromou published a great in-depth report on the talks between Debian and CC that helped shape these drafts. While we didn’t get 100% of what we were asking, I’m personally quite confident that we have or will get all of what is necessary to ensure that the licenses are DFSG free both in letter and spirit.

Not only does CC build several great licenses, they are willing to work with the community in difficult meaningful ways. When we build a real social movement around calls for essential freedom of culture and content, we’ll be lucky to have CC writing some of the licenses that help make it happen.

I’ve been doing a little research on the open access to scientific articles movement to bring myself up to speed. It’s interesting because while they have adopted CC licensing and are often mentioned in the same breath as open source and free software, they have employed a set of normative stances and tactics that seems to be very different than what you’d see in those communities. Lots of good stuff.

Nature has a nice focus page on the debate around open access in the scientific community. In it, they link to articles that they have published on the topic including one titled, Societies take united stand on journal access. Of course, if you try to click on the article and are not on an IP block of a subscriber, you are brought to a page that requires that pay US $30 for the article.

I’ll bet I can name at least one society that’s not part of that united stand.

There’s a disturbing little press release floating around where the Sun-backed Open Media Commons announces it’s release of a new DRM specification to be implemented using free software. That people are creating DRM systems under open source and free software licenses is not surprising; much of the encryption technology on which DRM is based has been free and open for a long time. What is disturbing is that it contains what appears to be an endorsement by Lawrence Lessig:

Lawrence Lessig, Chairman of the Board of Directors of Creative Commons and Professor of Law at Stanford Law School: "In a world where DRM has become ubiquitous, we need to ensure that the ecology for creativity is bolstered, not stifled, by technology. We applaud Sun’s efforts to rally the community around the development of open-source, royalty-free DRM standards that support "fair use" and that don’t block the development of Creative Commons ideals."

Lessig’s position seems to be that DRM is bad and should not exist. But in a world where it does exist, he thinks that not-quite-so-bad DRM is better than the alternatives. Is that the sort of message we want to be sending?

The fact that the software is "open source" is hardly good enough if the purpose of the software is to take away users freedom — in precisely the way that DRM does.

It doesn’t help that EFF has already spoken out against this project.

Lessig is on the board of directors of both EFF and FSF. I think it is smart for members of either organization who are opposed to DRM, even when it’s sweetened up, to contact those organizations and let them know how you feel.

On the OMC website, there is a photo of two young attractive people listening to a single pair of headphones. Apparently, the people in the picture need to share a single pair of headphones because the Open Media Commons rights management system won’t allow them to share the digital media itself.

Seth Schoen pointed me to this article by Ray Nimmer (not to be confused with the (more) famous copyright scholar David Nimmer). Nimmer₂ is an outspoken advocate of strong copyright and is very skeptical of free software.

What is interesting about this article is the overlap between my argument in Toward a Standard of Freedom and the argument made by Nimmer₂. Nimmer₂’s subject is the free information movement and he argues against a principled position and a social movement toward freedom. He argues that part of Free Software’s maturation can be seen in what he sees as the movement’s tendency to look beyond its principles and standards. He positively describes a trend of putting aside core values and principles — both in terms of the particular values in the FSD, OSD and DFSG and in terms of the method of building a movement around a defined standard of freedom — as, "an assertion of productive and healthy individualism [that] arguably, reflects an expansion of the core ideas of open source outside the narrow confines of its own limiting doctrines."

He holds up Creative Commons as a productive example of how the free information and culture movement is getting beyond their whole doctrine, principles and standards nonsense. If we look at CC as part of a larger free information movement that may eventually start influencing free software, he may be right.

Open Source succeeded in separating the doctrine and definitions of Free Software from its principles and ethical arguments. Creative Commons, and others following their example, has now introduced a broader free information movement that has fully excised any fixed definitions of freedom and openness and has even abandoned the strategy of providing definitions at all.

This of course, is precisely the argument I made in Toward a Standard of Freedom but it’s a little disconcerting to see it made by someone on the other side who then comes to the opposite conclusions. As Seth put it, "Nimmer is saying that CC is doing exactly what you’re saying it’s doing, except that he thinks it’s good because he doesn’t like free software!"

Antiquated technology makes for emancipatory possibilities.

—Alan Toner (2005)

Perhaps a truism. Perhaps merely what I fear is a prescient statement.

About a year and a half ago, I wrote an essay on Creative Commons that was critical of what I thought was a major difference between CC and the Free Software movement that many folks in the Free Software world didn’t seem to see. I showed it to a number of people and received a series of very mixed reactions. Some folks from iCommons Italy said they were reconsidering their role in CC. Cory Doctorow (who worked for CC at the time) compared me to a Troskyite. Others were conflicted.

Since I knew the article was potentially inflammatory and could easily be misunderstood, I’ve sat on it. In the last year, the things that bothered me about CC have continued or been aggravated and my article has continued to be passed around and revised. A growing number of people have been pushing me to publish. Under pressure — and kind words — from both Richard Stallman and a team of folks at Libroscope in France, (in addition to everyone who has been pushing me all along), I’ve finally decided to throw the article out there.

Many people seem to be criticizing CC lately and I don’t agree with all of them. As I say in the article, I think CC is doing a lot of good. My criticism is not with what CC has done but with the fact that they have failed to take a strong ethical position in the way that that has made Free Software successful.

Please feel free to pass the text around. The piece is short and I encourage anyone to read it and send me feedback. If you’re at What The Hack, just find me.

Finally, thank you to everyone who helped listen to this, read it, give me feedback, send me corrections. An incomplete list includes Alan Toner, Jamie King, Julien Tayon, Antoine Pitrou, Biella Coleman, Andreea Carnu, Richard Stallman, Holger Levsen, and WTH-DebCamp the Debconf5 sauna party.

You can read the whole article at its canonical(!) location on my homepage or upon on on Advogato. Source is also available.

Through the generosity of one of my favorite people, a Thinkpad X21 has recently entered my life. The X21, like many other IBM laptops, has small LED right above the LCD inside the lid’s bevel. The LED can be toggled on and off with a key combination on the keyboard and is designed to illuminate the keyboard and mouse. However, it is not particularly bright and does absolutely nothing except in complete darkness. At that point, it’s light is basically drowned out by the light coming from the LCD. It’s a cute gimmick but it is not particularly useful.

At Greg Pomerantz’s 43811/1461 birthday party, I wondered out loud who thought this would be a useful feature. Greg pointed out that anybody who held a patent on the technology might think so. After all, they went through the trouble of getting the patent; they might as well use it for something!

Sure enough, IBM holds US Patent number 6,561,668 for a computer with keyboard illuminator for use in operating environments with inadequate ambient lighting conditions. Here’s the abstract:

In a portable computer, an LED holder is provided in the upper portion of an LCD and an LED is attached inside the LED holder. Light emitted from the LED passes through an aperture provided in the bottom portion of the LED holder and illuminates a keyboard. Furthermore, switching on or off the LED is manually performed by a switch installed in the portable computer and is also controlled from a utility program, etc., by a switching controller circuit installed inside a main body.

Thank $GOD for patent law. Without it, the inventor of the LED on the laptop screen would not have been motivated to follow through on this highly original and non-obvious innovation. The fact that other computer manufacturers will not be able to mount dim LEDs above their laptop monitors without shelling out to IBM is the small price society pays to encourage such breakthroughs and to make sure that all of the information necessary to reproduce this invention is fully available to us in the form of published patent.

So on the IP::JUR — an important WIPO and international IP high-protectionist weblog — there’s quite a bit of concern about this recent campaign booklet by ATTAC.

Unfortunately, I can’t read German anywhere near well enough to make my way through the booklet so I can only read what Horn, the blog’s author, has to say about it.

If you read the post, you’ll see that there is real fear from the high protectionist crowd that this is a step towards unification of what has been a rather broad and separate set of anti-patent movements — and in a way that is even more frightening to the high protectionists, a wide range of groups critiquing different types of IP.

Whether or not real steps along these lines have actually been made, I think it paints a picture of a solid strategy we should pursue — and not just because it strikes fear into the heart of "our political adversaries." In dealing with patents, the anti-software patents folks have a lot to gain from joining hands with the access to essential medicine folks and we’ve both got something to gain from working with groups challenging patents — and other types of IP — in a host of other fields.

Part of the reason that IP is so strong right now and so highly connected to international trade’s legal and policy apparatuses is that folks from a wide range of vastly different industries working with what is vastly different types of law (trademark, patents, copyrights and trade secrets are very different) were able to promote a single concept — a banner — of "intellectual property" under which they could rally and join forces. Our potential for success in deconstructing these system may lie in part in our ability to use tools and terms in the same ways to create an anti-IP or IP-reform movement that is more powerful than any single group’s interest and that ultimately will be more effective than what any group could achieve on its own.

I think it’s interesting to see real recognition from the other side of our success so far and our potential for continued success that places us in a place of an adversary that is no longer ignorable. I think this one is ours to lose.

The article ends with:

Another interesting question in response to this booklet is the connectivity between copyright affairs, on the one hand, and patent affairs, on the other hand. Can the IP system be defended only in its entirety or will there be a considerable shear stress from groups defending the copyright system but not the patent system, and, not to forget, vice versa?

Patents and copyrights can no longer to discussed, attacked, or defended separately and the IP industry only has themselves to blame. TRIPS was one step toward collapsing the two concepts into a single conversation but the work of software companies in recent years has cemented any ambiguity.

This question will be answered in the realm of free software which, whether we like it or not, sits at the intersection of, and is highly influenced by, both patent and copyright policies. The free software crowd is going to fight both because we have to for our survival. I think that if we learn to work with others in other camps and in both areas, the effect will go well beyond the world of software. Which is exactly what they fear.

Seth Schoen gave me a whole much of cool stickers that were evidently made by Don Marti several years ago. The stickers say "OPEN" and are a parody of the DMAT logo. Here are pictures of the DMAT logo and the OPEN stickers:

For those that don’t know, DMAT was the trade-name for the recording industry’s Secure Digital Music Initiative (SDMI). It was basically a secure (read DRM) standard that the recording industry wanted to use to kill MP3. Except it wasn’t a standard. It was many incompatible standards. That may not even have been the biggest thing wrong with SDMI.

There was a time, not really very long ago, when people I knew were very afraid of SDMI and what it would might do to online music. As you might imagine, DMAT/SDMI fell on its face.

In any case, the sticker is a funny parody. I put them all over the place. Of course, because SDMI was so completely unsuccessful, very few people get the joke. This is my favorite thing about the stickers.

The door to my apartment has an OPEN sticker on it. This is funny because the term "open," as it is commonly used, is rarely an accurate way to describe the state of the door. In the sense of the sticker (meaning DRM free), it is technically true — but only because the lock is not digital. Our door is certainly a piece of technology that we use to protect our more traditional property rights.

While I’m on the subject (and since I will almost definitely never return), I should point out that one of the only places I could find any copy of the DMAT logo is in the portfolio of work for the corporate name generation firm "Catchword" whose motto seems to be: "a great name is the genesis of a lasting brand." Evidently, the recording industry paid some expensive naming firm to come up with the idea to replace the very unsexy "SMDI" with the oh-so-hot "DMAT" with the the promise this would lead to a lasting brand. If I were Catchword, I’m not sure I’d host the only google-accessable copy of the logo in the portfolio I show to my clients.

Greg Pomerantz pointed me to this article on a recent 2nd Circuit copyright decision. The case basically disambiguated the term "owner" in 17 U.S.C. §117 (a). It may seem nit-picky and obscure but (AFAICT, IANAL, OMG) this decision has good implications for free software hackers. Because Greg continues to refuse a blog of his own, I’ve agreed to write this up to spread the good news.

As the article points out, §117 (a) of the copyright code provides an affirmative defense against copyright infringement for anyone who owns a physical copy of a computer program and who makes an adaptation "as an essential step in the utilization of the computer program in conjunction with a machine," and uses it "in no other manner." Basically, owners of programs can modify said programs.

The case in question is Krause v. Titleserv Inc., 03-9303. Here is the back story: William Krause was a programmer and consultant hired by Titleserv to write a series of programs over the course of a decade. When Krause left Titleserv, he left the company the right use the software but not modify it. Using technical means that are not entirely clear from what I’ve read, he left the software "locked" so that the company did not have access to source code or the ability to modify the program. Evidently, the technical means were not very good ones. Titleserv managed to sidestep these restrictions and bring the software back into modifiable source form. They modified the program to keep it working a number of times and in a number of sometimes rather intrusive ways.

As I mentioned above, copyright law says that the right to modify is something all owners have. As a result, the core argument in the case boiled down to Krause saying that the owner of the software was the person who held a title to the software — unsurprising himself in this case. Titleserv, predictably enough, argued that the owner was anybody who rightfully possessed the software and that any rightful possessor of a copy was an "owner" and could modify software without any risk of infringement.

Second Circuit Judges Pierre Leval and Robert Katzmann sided with Titleserv. Leval said that courts should, "inquire into whether the party exercises sufficient incidents of ownership over a copy of the program to be sensibly considered the owner of the copy for purposes of §117(a)." Rightful possession is ownership.

Krause also argued for a narrow definition of "essential" that would only cover modifications necessary to keep the program functioning. The court was willing to side with Titleserv again and adopt a broad interpretation of "essential" that covered the wide range of changes that Titleserv made: everything from bug fixes to updates to cosmetic changes.

For free and open source software hackers, this is great news: a broad definition of owner in terms of software is fantastic for software freedom. The implications of ownership as defined as rightful possession are not necessarily limited to a distributed right to modifiability by groups other than the title holder although alone this is a major victory. Apparently, Titleserv sidestepped what sounded like sort of copyright protection device. The ability as the owner to do this on software one rightfully posesses is great. It remains to be seen (or explained) how much or how little good can be squeezed out of this.

The Debian-Legal mailing list talks about the "tentacles of evil test" which is a hypothetical situation that the list uses to evaluate licenses. Basically, the test tries to prevent against bad things happening to rightful possessors if the owner or the ownership for the title of a piece of software falls within the grasp of some nasty anti-freedom entity. I agree that the sentiment is an important freedom concern (although am not always happy with the way it has been employed and applied in the past on the list). This case seems to mean that we can worry a bit less about those tentacles in many situations.

While I’m not happy with the idea of software having owners, this case defines owner in a massively less centralized fashion that many of us had assumed was the case and this is a victory for software freedom.

If you’re really interested, here is another article and you can find the full case on Lexis and elsewhere.

As has become customary now, I took a short trip on the subway to check in on the Fordham Annual Conference on International Intellectual Property Law and Policy this year.

The conference always posts an extensive line-up of the biggest and brightest stars in IP law. There are folks from the copyright office, governments around the world, and all of the big media companies. While the conferences usually offers a token spot or two to more critical IP folks like Jamie Love or Fred von Lohnmann, it is basically a high-protectionist love-fest and strategizing session. It’s interesting to go to take the pulse of the high protectionist world and to get a preview of upcoming policy and legal pushes around IP enforcement, DRM, litigation, legislation, and more.

It’s also always interesting to see the way that free and open source software is treated in the conference. It is particularly interesting in light of that famous quote attributed to Gandhi that Eben Moglen has used in reference to the free software movement: First they ignore you, then they laugh at you, then they attack you, then you win.

When I went to Fordham several years ago, free software was completely ignored. In previous years, it has been raised briefly but only to be dismissed and laughed off. They’re still telling jokes but the jokes are becoming increasingly vicious (although not increasingly grounded in fact).

As an example of our progress and of the way that free software is treated by some of the most famous and influential minds in IP, here is a very short recording of Hugh C. Hansen — professor of IP at Fordham, director of the conference and an famous and highly respected name in IP — speaking about free and open source software and its developers:

• Clip in OGG Vorbis
• Clip in MP3

On the other hand, the conference web site appears to be served by Apache running on Fedora so apparently he has a little good sense.

I have a unofficial policy of not writing "this what I did today" blog entries. Today has been special so I’m going break my rule.

Yesterday night, I met up with Matt Norwood of Columbia Law School and soon-to-be of the Software Freedom Law Center to take a bus down to Washington DC to sleep on the sidewalk in front of the United States Supreme Court with the ultimate goal of seeing the oral arguments to Grokster v. MGM — an extremely important P2P case and probably the most important copyright and technology case since the Sony Betamax.

Seeing the case argued was an important goal but so was showing support for the EFF and for meeting a hole host of old friends (Seth Schoen, Wendy Seltzer, Annalee Newitz, Cindy Cohn) and for a meeting a few people on my "really should meet" list including Kragen Sitaker.

I met all of the people I’d hoped to met and many new smart and passionate freedom lovers, slept at the court and, through a rather sneaky set of events that I’ll detail tomorrow, managed to get into the court to hear the arguments. I was behind a column and at the very back of the room but I was one of the 35 people from the general public that got in so I can’t complain.

In my shamelessly biased opinion, I think the case was argued very well by our side and somewhat less well by the entertainment industry lawyers.

The industry lawyers were passionate but the passion behind the responses seemed to overshadow the substance of their argument. The justices asked the industry counsel repeatedly for a description of the legal standard that the industry would replace the simplified version of Betamax that Grokster is clinging to. The industry counsel repeatedly failed to answer these questions in a way that the Justices thought was satisfactory.

Justices that I suspected would be hostile toward Grokster’s position, including Justices Ginsberg and Scalia, returned repeatedly to the idea of the lone inventor in her garage unaware of exactly how she might predict the impact or use of her technology without being sued out of business from all sides before she had a chance to let the technology prove itself. They seemed concerned about the industry blocking the next Xerox machine, iPod, or printing press. Souter, Breyer, and Stevens each grilled the industry lawyers on their own. Rehnquist, who due to his respirator from his recent illness was tastelessly — but accurately — dubbed "Justice Vader" by one person at the court, said very little.

In what I’m sure is certainly a Supreme Court first, the justices asked, "what about the iPod?" Both counsels used hypothetical examples like, "so I want a file and you have it on your computer," that I thought introduced the fun idea of sharing music online with Supreme Court justices. Of course, I haven’t seen their iPods, but I suspect the Justices and I have different taste in music anyway.

The justices seemed comfortable with the technology at hand which was something I was worried about going in. They seemed to solid understand of the technological issues in the case. The only tech slip I caught was a bit of "bits and bytes" confusion uttered by Grokster’s counsel.

Minus this minor slip, Richard Taranto did what I think was a very good job. The justices seemed quite upset with the fact that certain issues in the case has been bifurcated at an early stage in the Ninth Circuit Court of Appeals and decided separately — something that was done with agreement of both parties and court at the time. If this really is the court’s largest problem with Grokster’s case, we’re in a good position. I’ll echo what Fred von Lohmann said afterward and say that I believe that the justices asked all of correct questions. I’m ready to be cautiously optimistic as we wait until this summer to hear the decision.

I will not be totally surprised if the court decides to tweak or add a little bit to Betamax but I think there seemed to be agreement by most involved that Betamax was a pretty good idea overall. Evidently, Jack Valenti, who autographed one of Seth Schoen’s Betamax tapes on the way in to court, even gave the nod to that.

If the decision comes down against us, it will obviously be a very bad thing. I’m not primarily concerned, as most people seem to be, in the loss of technologists ability to innovate — although it does concern me. What I am very worried about is the local effects on P2P technologies. I’ve recently launched a few popular websites and if it had instead been popular videos and not ten kilobyte chunks of HTML, I would now be faced with paying for a five or six figure bandwidth bill — unless I used P2P.

P2P is essential technology for spreading and democratizing the distribution of media with any sizable footprint on the disk. The technology for the grassroots and democratic production of information is quickly becoming a reality and if P2P technology is killed now, video and audio makers without record deals or deep pockets become voiceless and helpless. Of course, this is a risk of that the RIAA and MPAA are more than willing to take.

However, I’m also concerned with what will happen if Grokster wins. I’m afraid that a decisive court loss for the entertainment industry will help make the industry lobbyists increasingly effective in pushing congress toward anti-P2P, anti-technology, pro-industry and legislation like the INDUCE act.

In closing, I want to send many thanks to everyone who helped make this case possible and to everyone who helped make sure it was argued so well on our side. Also thanks should go to the folks from CEA for organizing a little demonstration that went head to head with the music-industry’s demonstration and to Public Knowledge who organized and sponsored a great little post-argument shindig for all of the good guys and their supporters.