Friday, March 04, 2005

Wired on Wikipedia

Wired on Wikipedia. Recommended.

Slowly, Sunshine Creeping Into Texas E-voting Process

Grokster, Ye Harlot

Apple 1, Bloggers 0

SW patents try try again

The Council of Ministers are to have another go at passing the software patents directive this coming Monday.

Broadcast flag

"As the FCC and the entertainment biz get ready to end home recording as we know it, a bunch of radical geeks are working on a solution or two." says Annalee Newitz of the EFF

Moglen on Grokster

Cory is particularly impressed with the Eben Moglen's brief in the Grokster case.

"The Free Software Foundation and New Yorkers for Fair Use have filed a brief in Grokster, EFF's Supreme Court case to establish the legality of P2P networks. Eben Moglen, the author of the brief, really lights into the RIAA and MPAA -- he's a fantastic writer:

At the heart of Petitioners' argument is an arrogant and unreasonable claim--even if made to the legislature empowered to determine such a general issue of social policy--that the Internet must be designed for the convenience of their business model, and to the extent that its design reflects other concerns, the Internet should be illegal.

Petitioners' view of what constitutes the foundation of copyright law in the digital age is as notable for its carefully-assumed air of technical naivete as for the audacity with which it identifies their financial interest with the purpose of the entire legal regime.

Despite petitioners' apocalyptic rhetoric, this case follows a familiar pattern in the history of copyright: incumbent rights-holders have often objected to new technologies of distribution that force innovation on the understandably reluctant monopolist."


NO2ID have a useful list of frequently asked questions about the proposed identity card scheme.

Plagarism is the sincerest form of flattery - Controversy in the Kenyan blogosphere

Plagarism is the sincerest form of flattery - Controversy in the Kenyan blogosphere

The Long Tail

Some very interesting comments at the Long Tail on the copyright wars and the need for flexibility in intellectual propoerty regulations:

"I've noted before that some have spotted a conflict between Lessig and the Long Tail. Specifically, Lessig argues that most creative work doesn't have value for long and doesn't need as much protection as it gets. The Long Tail, in contrast, argues that as the limitations of shelf space diminish and older content is kept available we are finding that demand continues for longer than we thought...

So Lessig says the commercial life of creative work is short. The Long Tail says it is, well, long. Lessig concludes that copyright is overprotecting stuff that doesn't need it, since it doesn't sell anymore. What does the Long Tail say about that?

On the face of it, it really does seem to disagree. I've argued, for instance, that the concept of "out of print" is anachronistic and will soon go away. Even worse (for the not-worth-protecting argument), I think the availability of archive content could lead to a real boom in new content as it attracts/creates a generation of remixers and others who can find ways to find new value in old wine. More content available + more people who want to do stuff with content = more commercial potential. Whether you like copyright or not, it's no longer safe to say that it's irrelevant for older material.

But there's another way to look at this that offers a neat bridge between the two views. Many of those extracting new value from old content are not the original creators or rights-holders. Some of them are repurposing older material, and others are aggregators who have found ways to find new markets for material that's fallen beneath the commercial radar. Either way, they typically aren't the original record label, film studio, publishing house, TV production company or any of the other names that might be on the copyright declaration. They are someone else, probably someone entirely unexpected. This is, after all, the dawn of Remix Culture.

What's changed is the presumption that the primary rights-holder is the best at extracting the commercial potential of creative material. Instead, anyone can do it: the advertising company that remixes an old movie to sell a car; the Linux t-shirt done Warhol-style, or just plain old DJ magic. What you need to encourage this multiplicity of commercialization potential is tiered alternatives to one-size-fits-all copyright, from allowing derivative works (good marketing!) to shorter terms for the sake of the remix-culture social good. I can't think of a better example of that than Lessig's own Creative Commons, which has already become the license of choice for the right side of the Tail, where the commercial imperative is less all-consuming.

So, bottom line: the Long Tail ends up in the same place Lessig does, but via a different path--the diversification of commercial potential rather than the absence of it."

How the music business can get to be loved

I was reminded this morning of a speech the Register's Andrew Orlowski gave in September last year "How the music biz can live forever, get even richer, and be loved."

" Register San Francisco bureau chief Andrew Orlowski spoke at the In the City convention in the UK, telling the cream of the music industry it's never had it so good, that it's been swindled by the technologists, and that it should dump DRM and embrace freedom. As, to our knowledge, he got out alive, we think it's possible they listened just a little. What follows is the text of his speech. -Editors"

He basically told them they are sitting on a goldmine, that technologists are ripping them off, that drm is pointless and that they need to embrace the technologies that will facilitate Paul Goldstein's celestial jukebox. Also that the way to collect the cash is to charge a levy eg on the various communications services and technologies which act as distribution channels for the music, to continue their success with merchandising and perhaps diversify into complimentary markets (so called 'horizontal integration' in MBA textbooks).

I'm not so sure about some of his suggestions for diversification - insurance sales for instance - but sensible folk like William Fisher at Harvard's Berkman Center have been thinking deeply about the practicalities of levies and collection agencies; and moving forward from the polarised, unproductive copyright war situation we currently face.

NO2ID newsletter no. 16

NO2ID newsletter no.16 is now available. Highlights:


Last Thursday (February 24) the Scottish Parliament sent a clear message
to the Home Secretary Charles Clarke and the Labour government, when
they passed a motion that called the proposed Identity Card "an
unacceptable threat to civil liberties". Outside the Holyrood building
protestors tore up fake ID cards."

Transcript of the debate:


Cambridge became the latest council to state their objection to the
government's proposed identity card scheme and affiliate to NO2ID last
Thursday (February 24). The council passed a motion that laid out its
concerns about the government's bill and stated its plans to oppose it
wherever possible."


NO2ID held an hour-long vigil beneath the statue of Winston Churchill in
Parliament Square on Monday, February 21.

In funereal black, NO2ID and Liberty mourned the short memory and lack
of sense that leads this government to try and reintroduce ID cards and
create the National Identity Register, 53 years after Churchill scrapped
the wartime ID card system.

Proceedings were watched with interest by the real authorities,
including Charing Cross constabulary--and the all-seeing eyes of our
database state were represented by costumed suppporters as giant, unblinking eyes. The group was moved on after an hour and a half, with police claiming the polystyrene breastplates of the costumes, not unlike police body armour, looked like explosives."


The NO2ID Voter Education Tour began on Saturday 19 February in the
streets of Norwich, delivering thousands of leaflets to voters in the
city centre and in Charles Clarke's Norwich South constituency."


The French government is trying to impose an electronic ID card on
French citizens, using the justification that other countries are. In
particular they incorrectly cite the 'law of the 20th December 2004'
introducing compulsory ID cards in Britain.

For a rough and ready google translation see"

"Angela Sasse, Professor of Human-Centred Technology at University
College London, questions the expected performance of ID cards and biometric passports in light of the "reality of human behaviour".
This is a lovely article outlining just some of the practical difficulties the ID systems will have.

ID card shelved until after election

The Independent report that "The Government's plan to bring in a national identity card scheme is to be shelved until after the general election."

Thursday, March 03, 2005

Appeal Court order re-trial in MS v Eolas

The Appeal Court yesterday ordered a re-trial in one of the most important patent cases in the history of the Internet, Eolas Technologies Incorporated and the Regents of the University of California v Microsoft Corporation. A jury had awarded Eolas $521 million in damages for patent infringement and Microsoft, in parallel with the judicial appeals process, had been having some success in getting the US Patent Office to re-examine and invalidate the patent.

There's probably lots of commentary from all the usual suspects.

Restrict freedom to preserve liberty

John Lettice is not impressed with the Home Office's cunning plan to restrict freedom to protect liberty.

"We shouldn't allow yesterday's democratic low point to pass unremarked. Clarke's intention to amend the Bill became known as the Commons debate on it was beginning, and his intended amendments effectively made Commons discussion of the first section of the Bill redundant. Clarke's amendments however had not at that point been written, and he proposed to put them to the House of Lords once the Bill had moved there (which it did today). The Commons was therefore asked to vote not for the Bill they had in front of them, but for the one sketched out by Clarke that was to be presented to the Lords, but which did not yet exist. The Commons was therefore asked to vote for a promise - it did."

Meanwhile, says the BBC:

"UK Muslims should accept that people of Islamic appearance are more likely to be stopped and searched by police, a Home Office minister has said.

Hazel Blears said innocent Muslims would be targeted because of the search for Islamic extremists...

"The threat is most likely to come from those people associated with an extreme form of Islam, or who are falsely hiding behind Islam," the Salford MP told the Commons home affairs committee.

"It means that some of our counter-terrorism powers will be disproportionately experienced by the Muslim community."

It was a reality that should be recognised, she said."

Wednesday, March 02, 2005

Government breach FOIA on ID cards?

Spy Blog is reporting that the UK government are technically now in breach of the new freedom of information act regulations, as they admit they have not complied with Spy Blog's request for "meeting diaries, agenda etc. of the Identity Cards Programme Team"

Open Access News says Stealth copyright impeding research in psychology

Slashdot on the MGM v Grokster briefs:

"MGM v. Grokster: Here's Why P2P is Valuable
The Courts
The Internet
Posted by jamie on Wednesday March 02, @11:55AM
from the spelling-it-out dept.
Briefs defending Grokster's right to exist were filed yesterday in MGM v. Grokster, from Intel, Creative Commons [PDF], and many others. Among them, 17 computer science professors laid out the case for P2P, beginning with principles: "First, the United States' description of the Internet's design is wrong. P2P networks are not new developments in network design, but rather the design on which the Internet itself is based.""

Moglen on same:

"At the heart of Petitioners’ argument is an arrogant and unreasonable claim—even if made to the legislature empowered to determine such a general issue of social policy—that the Internet must be designed for the convenience of their business model, and to the extent that its design reflects other concerns, the Internet should be illegal.

Petitioners’ view of what constitutes the foundation of copyright law in the digital age is as notable for its carefully-assumed air of technical naivete as for the audacity with which it identifies their financial interest with the purpose of the entire legal regime.

Despite petitioners’ apocalyptic rhetoric, this case follows a familiar pattern in the history of copyright: incumbent rights-holders have often objected to new technologies of distribution that force innovation on the understandably reluctant monopolist.

[Petitioners] have no statutory bases for their claims, and are arguing here, as they argued below, that they don’t need any. As though this degree of overreaching were insufficient evidence of their mettle, petitioners go on to identify as the technical features of respondents’ computer networking software that establish their entitlement to relief those features that are shared by the whole recent generation of Internet protocols, embodying the future of network design. In the teeth of this Court’s clear statements extending back almost a century, without the slightest statutory justification, petitioners claimed below that they had a right to veto the technological design that organizes the majority of contemporary traffic on the global Internet. Not surprisingly, they lost, and now resume their blustering before this Court. In referring to this as a very important case, petitioners characteristically mistake selfimportance for the real thing."

Why DRM Should be Cause for Concern

Why DRM Should be Cause for Concern: An Economic and Legal Analysis of the Effect of Digital Technology on the Music Industry. Important paper from Paul Petrick at Harvard's Berkman Center.

In response to piracy and online file trading, the music industry has begun to adopt technological measures, often referred to as digital rights management (DRM), to control the sale and distribution of music over the Internet. Previous economic analysis on the impact of DRM implementation has been overly simplistic. A careful analysis of copyright law and the microeconomic principles governing the music industry demonstrates that commentators have failed to account for factors relevant to the measure of social welfare within the music industry. This paper develops a more refined economic model that is better suited to accurately assessing how legal or technological changes like DRM will affect the music industry.

Utilizing a refined economic model, the analysis suggests that the economic effects of implementing DRM technology are generally negative, albeit uncertain. While DRM implementation may inhibit piracy, facilitate price discrimination, and lower transactional costs, it will likely decrease social welfare by raising barriers to entry and exacerbating a number of existing market failures. Specifically, DRM implementation may facilitate the extension of monopoly pricing, decrease the amount of information available to potential music consumers, diminish the number of positive externalities, and raise artistic and informational barriers to entry into certain genres of music."

I've only had the time to scan it but it looks to be covering some basic economic analysis of a drm music market, using some nice illustrative examples. It would need some empirical evidence to test the basic theories.

Tuesday, March 01, 2005

Bush cartoon cut

The Chicago Tribune decided to drop a cartoon about George Bush because the "strip presents inaccurate information as fact."

Grokster Respondents Briefs Submitted Today says Derek.

The Engadget Interview: Elliott D. Frutkin, CEO of TimeTrax. Recommended.

"TimeTrax is software that lets you turn your PC into a TiVo for satellite radio. Veteran journalist J.D. Lasica spoke with CEO Elliott Frutkin about the upstart startup’s prospects, its diffident relationship with the RIAA, the future of music subscription services, and whether the recording of satellite transmissions will be outlawed.

Tell me your backstory. I understand TimeTrax was created by Scott Maclean, a lone programmer in Toronto who didn’t like missing cool radio broadcasts in the dead of night.

I found out about TimeTrax the way other people did, through an online tech news roundup. Scott wrote an app to record a Blondie concert that was on in the middle of the night. There turned out to be tons of interest in it. He posted it and it was hugely popular and people started asking him to add new features. He decided to spend more time on the software and start selling it for $19.99, and it just kept growing. I then got in touch with Scott and we put together a deal to formulate a business around TimeTrax...

What kind of DRM do you use?

We don’t want to encourage people to distribute what they capture with TimeTrax over the Internet, so we encode the satellite signal into each recording that’s made, with a specific identifier for each user. Besides that, we don’t have any other restrictions on what people can do with their recording. We just want to encourage people to be responsible, and yet not punish them at the same time.

That sounds perfectly reasonable. Are you insane? What if this catches on?

You know, this approach takes the responsibility off us in a certain way and puts it on the user, where it belongs. We’ve shared our methodology with Sirius and XM and told them, if you find users who are violating your copyright you can take them to court or unsubscribe them."

Time Trax brings the functionality of VCRs to radio and is much more important a development, IMHO, than even Napster in its heyday.

Ed Felten on Computer Science Professors' Brief in Grokster

"Today, seventeen computer science professors (including me) are filing an amicus brief with the Supreme Court in the Grokster case. Here is the summary of our argument, quoted from the brief:

Amici write to call to the Court's attention several computer science issues raised by Petitioners [i.e., the movie and music companies] and amici who filed concurrent with Petitioners, and to correct certain of their technical assertions. First, the United States' description of the Internet's design is wrong. P2P networks are not new developments in network design, but rather the design on which the Internet itself is based. Second, a P2P network design, where the work is done by the end user's machine, is preferable to a design which forces work (such as filtering) to be done within the network, because a P2P design can be robust and efficient. Third, because of the difficulty in designing distributed networks, advances in P2P network design -- including BitTorrent and Respondents' [i.e., Grokster's and Streamcast's] software -- are crucial to developing the next generation of P2P networks, such as the NSF-funded IRIS Project. Fourth, Petitioners' assertion that filtering software will work fails to consider that users cannot be forced to install the filter, filtering software is unproven or that users will find other ways to defeat the filter. Finally, while Petitioners state that infringers' anonymity makes legal action difficult, the truth is that Petitioners can obtain IP addresses easily and have filed lawsuits against more than 8,400 alleged infringers. Because Petitioners seek a remedy that will hobble advances in technology, while they have other means to obtain relief for infringement, amici ask the Court to affirm the judgment below."

Clinton wants evoting paper trail

Hillary Clinton has stepped into the debate on voter verified paper trails for electronic voting machines, proposing a new law, The Count Every Vote Act of 2005, which

" will provide a voter verified paper ballot for every vote cast in electronic voting machines and ensures access to voter verification for all citizens, including language minority voters, illiterate voters and voters with disabilities."

There must be votes in votes.

Walker's Copy catfight

Jesse Walker wrote an article in Reason 5 years ago about the copyright wars that remains sufficiently current to make into a new book, Choice: the best of Reason. In "Copy Catfight: How Intellectual Property Laws Stifle Popular Culture's Virtual Warriors", Walker does a nice job of explaining some of the basic problems of over expansive intellectual property laws. Extract:

"For centuries, our popular myths have enshrined the "romantic" or "heroic" author, conjuring new books out of nothing but his solitary genius. This image is popular with nonwriters, because many of them do not know how writing is done, and it is popular with writers, because it flatters us. It is, however, untrue. Every book, film, and song in the world draws on an existing cultural commons. Creativity rarely, if ever, means inventing something out of nothing. It means taking the scraps and shards of culture that surround us and recombining them into something new.

When the government tells us we can't use those scraps without permission from Disney, Fox, or the Sherwood Anderson Trust, it constrains our creativity, our communications, and our art. It tells us that we cannot draw on pop songs the way we once drew on folk songs, or on TV comedy the way we once drew on vaudeville; it says we cannot pluck pieces from Star Wars the way George Lucas plucked pieces from foreign films and ancient legends. The consequences are staggering. Imagine what would have happened if, 100 years ago, it had been possible to copyright a blues riff. Jazz, rock, and country music simply could not have evolved if their constituent parts had been subject to the same restraints now borne by techno and hip hop.

Few would argue that artists shouldn't be able to make a living from their work, or that customer confusion is a good thing. But we've stood those ideas on their heads. Rather than promoting enterprise and speech, copyrights and trademarks often restrain them, turning intellectual property law into, in Jenkins' words, "protectionism for the culture industry.""

Commission refuse to restart software patents process

Via Groklaw, FFII report that the EU Commission are refusing to re-start the software patent directive proposals from scratch, as recommended by the JURI (Legal Affairs) committee of the European Parliament.

Monday, February 28, 2005

Showtime and the Visigoths.

Round up of interesting things:

Showtime and the Visigoths from IP Central.

"Everyone in the IP debate is focused on songs, songs, songs, and now to an extent movies. But broadcast and cable TV shows, business software, books, video games, quilting patterns -- just about any intellectual property -- can be digitized. Thus, just about any intellectual property that currently is offered either on a purchase or subscription model is vulnerable to the threat of BitTorrent and its successors."

ID theft amongst children is apparently spiraling out of control.

Obscurity in patent matters. INDICARE.

"Abstract: This editorial presumes that DRM patents are a public policy issue which at the end of the value chain has an impact on the consumer experience with protected digital content. After a brief general characterization of the "social invention" called patents, DRM patents are addressed and open questions are raised which deserve further analysis. Surprisingly even seemingly simple questions like the one what the meaning of "DRM patent" is, have no easy answer. The second part of the editorial introduces the content of this INDICARE Monitor issue and draws your attention to a slight change of our publication concept."

You Could Put Someone's Eye Out With That Thing. Susan Crawford. Recommended.

"The big copyright tussle, the ancient battle between content and technology, is going into a new phase. Now it's all about product liability.

Here's how the argument goes:

1. Failing to design something so as to constrain copyright infringement is just like failing to design something so as to avoid injury. When the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design, failure to use that alternative design renders the product not reasonably safe..."

Digital TV's Hollywood showdown MIT Technology Review.

Publius, RIP?

"EFF's own Fred von Lohmann has a monthly column at, and fortunately we have the freedom to publish these columns in their entirety here at the EFF website. This month's column is "Publius, RIP?" -- a look at why it's critically important to our society that we preserve anonymous speech on the Internet."

CIA too cautious in targetting terrorists

A former CIA official has spoken to UPI:

"At the heart of the issue is a remarkable legal document, known as a Memorandum of Notification, which was signed by President Bush less than a week after the Sept. 11 attacks.

In the effort to justify the broad legal authority it granted the United States to kill its terrorist enemies, some administration lawyers drew on a legal theory of anticipatory self-defense, first developed as a strategy for battered women who had killed their abusers...

The former official said the anticipatory self-defense theory enabled the administration to get around the long-standing ban on U.S. personnel taking part in or procuring assassinations stipulated in Executive Order 12333. Self-defense is not a defense for the crime of homicide. If a killing is self-defense, no crime has been committed."

Richard Clarke told a congressional inquiry "There was concern ... that we not create an American hit list that would become an ongoing institution that we could just keep adding names to and have hit teams go out and assassinate people." but the former CIA official said interference from the lawyers:

"It got so ridiculous. When we were training for an operation to capture bin Laden, the lawyers made us build an ergonomic chair in which he would be comfortable. ... At one point we took three rolls of tape to the lawyers (at the National Security Council) -- duct tape ... masking tape and white adhesive tape -- so they could decide which we could use to put over his mouth that would be least uncomfortable."

I've no idea how much if any of this is real but it gives an insight into how nasty and difficult the actual business of managing the fighting of terrorism can be. You can understand the anger of intelligence operatives who have to put their lives on the line but if we're to maintain the facade of a civil liberal democratic society, there have to be moral imperatives and moral absolutes... or so I can suggest, in theory, from the comfort of my office in the UK. I don't envy any of the people who have to deal with these things in real life.

Boyle, the weather and access to information

Havning pointed a friend of mine at some typically insightful work by James Boyle, I heard from James this morning on his latest short piece in the FT. Cuts right to the core of the issue as usual:

"On one side of the Atlantic, state produced data flows are frequently viewed as potential revenue sources. They are copyrighted or protected by database rights. The departments which produce the data often attempt to make a profit from user-fees, or at least recover their entire operating costs. It is heresy to suggest that the taxpayer has already paid for the production of this data and should not have to do so again. The other side of the Atlantic practices a benign form of information socialism... It is easy to guess which is which. Surely, the United States is the profit and property-obsessed realm, Europe the place where the state takes pride in providing data as a public service? No, actually it is the other way around."

He goes on to illustrate the value of weather data as social wealth and the potential for shared seismographic, cartographic and satellite data in a similar vane [excuse the pun].

John Gilmore's crusade v internal passports

The Post Gazette has a profile of John Gilmore's crusade against the US government and the airlines requirement to show a government approved form of ID before being allowed to board an internal flight.

"John Gilmore's splendid isolation began July 4, 2002, when, with defiance aforethought, he strolled to the Southwest Airlines counter at Oakland Airport and presented his ticket.

The gate agent asked for his ID.

Gilmore asked her why.

It is the law, she said.

Gilmore asked to see the law.

Nobody could produce a copy. To date, nobody has. The regulation that mandates ID at airports is "Sensitive Security Information." The law, as it turns out, is unavailable for inspection.

What started out as a weekend trip to Washington became a crawl through the courts in search of an answer to Gilmore's question: Why...

At the heart of Gilmore's stubbornness is the worry about the thin line between safety and tyranny.

"Are they just basically saying we just can't travel without identity papers? If that's true, then I'd rather see us go through a real debate that says we want to introduce required identity papers in our society rather than trying to legislate it through the back door through regulations that say there's not any other way to get around," Gilmore said. "

Gilmore's lawyer, Jim Harrison, describes the case:

"It's about the ability of the citizens of this country to be able to move about the country, to move about freely, without being subject to laws they can't see."

Gilmore can be abraisive and no doubt his adversaries find him difficult but he's making an important stand on the importance of transparency to free societies.

Meanwhile on this side of the pond, the UK government are today rushing through legislation to respond to their comprehensive defeat in the House of Lords case before Christmas, which extends the Home Secretary's powers to detain terrorist suspects without trial to UK citizens. The ability to move about freely without being subject to charges they can't see? That's sounds familiar. Once thing is certain, though. Laws rushed through without due consideration always have unintended consequences. Some of these have already been pointed out by critics of the proposals and dismissed by the government. For the rest, we'll just have to wait and see and deal with the consequences. The government would be far better off if they were to pump the billions of pounds they propose investing in a national ID card into better trained and better resourced security, customs, policing and intelligence personnel. But there's no Daily Mail "Government move rapidly to avert terror threat" headlines in that.

Empirical IP

Mark Rogers and his colleague Christine Greenhalgh at Oxford University have been doing some much needed empirical research on the real correlation between intellectual property (specifically patents and trademarks in this paper) and market competitiveness. The Powerpoint slides of Mark's presentation at INSEAD in July last year give a nice summary fo the findings.