Friday, July 01, 2005

Boyle on geeks and EU software patents

James Boyle has yet another terrific article in the FT, this time on the need for empirical evidence in the thorny debate over the EU software (or "computer implemented inventions") patent directive.

"It does not help the debate that well-intentioned people simply disagree about what the proposed directive actually means; an indication of the dangers involved in law-making about property whose boundaries are marked, not by fences or walls, but by vaporous ideas and concepts. A property right crafted with one goal in mind can spread, amoeba-like, to cover situations its drafters never intended. That was the certainly the experience in the US."

What you've got here is a difference of values. Because there is no widely accepted empirical evidence (and indeed very little empirical evidence at all on the effects of intellectual property in a digital age), there is no objective process whereby somebody who believes in the positive benefits of software patents can convince somebody opposed to them of their point of view. So what plays out in the public debate on the subject is a shouting match over what each side believes might be the positive or negative effects of implementing a software patent directive in Europe.

James thinks the EU should be looking to the US for evidence:

"For example, Professor James Bessen and Robert Hunt of the Federal Reserve Bank found that the increase in the level of software patenting in the US was associated with a significant decline in investment in research and development by software companies. As more and more patents were granted, companies spent less on R&D. Correlation does not prove causation, as the authors appropriately caution. Nevertheless their conclusions are clear about the assumption that granting stronger property rights in software will stimulate innovation. Â?Our evidence suggests this assumption may be incorrect in the case of software patents. If, instead, the legal changes create patent thickets, the result might well be less innovation.Â?"

We can't really know what the effect of software patents would be in the next few years until we implement them and find some objective way of observing, measuring, analysing and evaluating what happens. But here's the rub - we can't really find out what the effect of not having software patents might be unless we avoid implementing them and find some objective way of observing, measuring, analysing and evaluating what happens. Just to complicate matters, the European Patent Office have been merrily granting patents on "computer implemented inventions" for many years now, as have national patent offices such as that in the UK, despite a statutory prohibition on the granting of such patents.

Me? I tend to lean, as regular readers will know, towards the avoidance of pure software patents, partly because, as James says, the Besson report shows a correlation (even if it's not a definite causation link) between software patents and reductions in software R&D spending; but partly also because I don't think it is sensible economic policy to grant 20 year monopolies in a market where the products have a life of a few years at the outside.

Thursday, June 30, 2005

Back to the cards

Now I've decided to give Grokster a rest it's back to another ongoing hobby horse, ID cards. Does the ID system hold risks for honest citizens? William Heath and Brian Gladman ask.

William has also had a suggestion as to how the government might have arrived at their cost estimates for the ID card scheme. It's inspired, if not inspiring.

Sin and sinners

Interesting takes on the Grokster decision by Chris Guzelian and Andrew Orlowskiat the Register. Ok now I should give Grokster a rest for the few days at least.

Home taping saves missing BBC heritage

Donna points to the news that some illicit home taping of old BBC programmes has heped to retain those programmes when they would otherwise have been lost to the annals of history. The BBC had deleted the programmes because they needed to re-use the expensive tapes. As Donna says:

"One of the unexpected side-benefits of copyright's (traditionally) "leaky boat" -- you've got a bit of help when you need a bail-out."

The importance of RSS

Jenny Levine, aka the shifted librarian, on Why RSS and Folksonomies Are Becoming So Big is well worth a read.

"And if Hale is right about all of this, it makes you wonder if this isn’t just one more place librarians and our expertise aren’t going to be found, even though we should be. And don’t we already have goldmines of data that could be found in these services if we just started tagging them (in addition to the structured searching we already provide)?"

The engineer and the manager

A new version of an old joke. This time it is the Republican in the baloon rather than the manager and the democrat on the ground rather than the engineer. I wonder does that make me more sympathetic towards the democrats?

Teenagers face criminal charges

A group of teenagers is facing criminal charges for bypassing a password on school issued laptop computers. Without knowing the whole story, it's difficult to comment but the school adminsitrator doesn't come out of the story too well in the report. Thanks to EFF minilinks for the link.

They also have a link to an interesting story about the copyright clearance process a documentary film maker had to go through to clear the rights to use background music.

Information Commissioner's ID card concerns

The Information Commissioner has published a damning list of concerns about the UK government's plans for an ID card system. He concludes:

"The measures in the bill go well beyond establishing a secure, reliable and trustworthy ID card. The measures in relation to the National Identity Register and data trail of identity checks on individuals risk an unnecessary and disproportionate intrusion into individuals' privacy. They are not easily reconciled with fundamental data protection safeguards such as fair processing and deleting unnecessary personal information. An effective ID card can be established avoiding these unwarranted consequences for individuals as research has shown. The primary aim of government with this legislation should be to establish a scheme which allows people to reliably identify themselves rather than one which enhances its ability to identify and record what its citizens do in their lives. The Commissioner hopes that during the passage of the bill parliamentarians will not just focus on the desirability of ID cards but look into the acceptability of government recording so many unnecessary details of their own and their constituents lives."

The pledge is now up to 7020 signatures.

Medical database worse than ID cards

"Government plans to put the medical records of 50 million patients in England on a national electronic database pose even more of a threat to civil liberties than the ID card scheme, doctors' leaders warned yesterday." says John Carvel of the Guardian.

UK Research Councils back open access

There was some good news for open access supporters in the UK, in the Guardian yesterday.

The UK Research Councils have decided that people getting research grants will need to make the fruits of that research freely available on the Net. This is a big deal the UK. The government had rejected recommendations from the House of Commons' Science and Technology committee on open access, after publishers expressed concerns about the economic impact of such a move. But it looks like the Research Councils have decided to ignore the government line.

I doubt we've heard the end of this, as neither the government nor the publishing industry will be prepared to let this go lightly.

Wednesday, June 29, 2005

6500 sign anti-ID card pledge

As of 11.26am on Wednesday, 29th June, a remarkable 6521 people have signed NO2ID campaigner Phil Booth's pledge, "I will refuse to register for an ID card and will donate £10 to a legal defence fund but only if 10000 other people will also make this same pledge."

I had my doubts whether he would get anywhere near his target of 10000 signatures when he made the pledge a few weeks ago because I didn't think enough people were sufficiently interested. It looks as though he might just do it though.

Tuesday, June 28, 2005

Scotusblog forum on Grokster

There's a very thoughtful discussion about the Grokster decision going on, as you would expect given the contributors, in the Scotus blog forum.

This is a fantastic example of the web facilitating rapid, in depth, public analysis of important matters of public policy, in a way that would not have been previously possible.

Copyright guru, William Patry, for example is able to share his deep disappointment with the Grokster decision, saying the court effectively avoided the substantive issue that it was asked to rule on i.e. whether the P2P companies met the Sony subtantial non infringing use test.

"Grokster raises to me serious issues about the ability of the Court to deal with hard copyright technnology issues. I had predicted after Grokster there were not 5 votes for either side and that proved true. But I didn't expect a phony 9-0 unanimous opinion, phony in the sense of tossing something out as if the Court had really done something. In my view they didn't. I'm happy they slapped down the Ninth Circuit's misreading of Sony. And I agree that the staple article of commerce doctrine shouldn't by itself insulate someone who actively induces infringement (although query whether the betamax would itself meet that test), but I find disturbing the real result of the case a 3-3 decision with three on the sidelines. The Court is only deciding 75 cases a year. It is shameful to me that 5 votes couldn't be found and that the Court instead took the easy way out"

Monday, June 27, 2005

Grokster commentary

I'm sure there's an absolute blizzard of reaction to the Grokster decision but I haven't had the time to read any of it this afternoon. I did manage to skate through Justice Souter's opinion, which makes very interesting reading.

Right up front on page one, paragraph is the summary

"We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."

A clear win for MGM and the studios and a clear loss for the P2P companies. No doubt there is significant gnashing of teeth about this amongst the anti-copyright expansion lobby, suggesting it undermines or kills the Sony v Universal "substantial non infringing use" test but it is not as bad for them as it might at first appear.

First of all, the court was ruling on whether the Court of Appeal for the 9th circuit were right to give a summary judgement against MGM, saying they couldn't sue the P2P companies for damages. ON that they decided the 9th circuit was wrong to stop MGM from getting a substantive hearing. So the case now goes back down the chain to look at MGM claims for damages in detail.

Secondly, the Supreme Court focussed heavily on the intentions of the Grokster and Streamcast in relation to the "staggering" scope of copyright infringement on their networks. They concluded that there was a lot of evidence to demonstrate that these two particular P2P companies not only distributed technologies "capable of substantial non infringing uses" (which I thought would have been ok under the Sony test but there is a disagreement amongst concurring justices on this 3v3 with 3 not commenting on the issue), but that they also acted to heavily promote copyright infringing activity amongst the users of their software. The CTO of Streamcast, for example, is on record with the statement "[t]he goal is to get in trouble with the law and get sued. It's the best way to get in the new[s]."

And this becomes the key to the Court crafting a new inducement rule, based on a similar rule in patent law, which will probably become known as the rule in MGM v Grokster. On page 19 of the decision, Justice Souter says the patent law inducement rule (emphasis mine):

"is a sensible one for copyright. We adopt it here, holding that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression of other affirmative steps taken to foster infringement, is liable for the resulting act of infringement by third parties...
mere knowledge of infringing potential or of actual infringing uses would not be enough her to subject a distributor to liability. Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful purpose."

There are a lot talking points in the decision but that's the key one. It adds up to a really bad decision for Grokster and Streamcast (moreso for the latter because Grokster at least sent emails to users warning them about infringing content) but not necessarily bad for other P2P companies.

The court clearly want to avoid scaring potential technology innovators and more or less strike that balance (of course they have no control over how the decision will be presented which wil be crucial). There are a number of points in the decision where they may well undermine that intent, though.

At page 12 (top para) Justice Souter says the argument for indirect liability is powerful because there are too many individual infringers for the music companies to pursue. That will be picked over justifiably, especially since the RIAA have issued lawsuits against over 10000 individuals already.

At page 13 he says they are resolving the case on the new inducement theory not vicarious liability theory as hoped by MGM. Again this is important but I can't go into the detailed questions here. I had a problem with his depiction of Sony on page 14 as a totally innocent distributor of VCRs and that the famous 1984 case provided no evidence that Sony aimed to infringe copyright or that they took active steps to encourage infringement. (Isn't that exactly what this ad did?). This attempt to distinguish the case in this way does hold water if crafted carefully enough but at this point he was trying too hard to make Sony look innocent so he he could make Grokster et al look guilty. The argument distinguishing the Sony case on page 16 is slightly tigher, where he concludes the court of appeal for the 9th circuit interpreted Sony too widely in offering the protection of the "substantial non infringing uses" defense to Grokster and Streamcast. (Even though I still have my doubts).

HE refuses at page 17 to declare the proportion of infringing use that would lead to a technology being completely outlawed, as MGM wished.

In relation to this case, starting on page 21, he says there are 3 features demonstrating evidence of intent to induce copyright infringement on the part of Grokster and Streamcast.
1. "Each company showed itself to be satisfying a known demand for infringement"
2. Neither company tried to develop filters or other mechanisms to stop copyright infringement on their networks. (Note that seems a fairly clearcut commercial decision to me, so perhaps unfair. He does pose this as part of an overall pattern of behaviour - though this won't stop future lawyers trying to make it into a defintive rule.)
3. The companies business models depended on advertising revenues, so they had a commercial incentive to get as many users as possible. (Again it seems to me that this is a business decision and the Supreme Court's decision here leaves scope for misinterpretation.)

He sums up by saying the case is significantly different to the 1984 Sony v Universal decision (I certainly agree with that) and closes by referring it back to the District Court for a substantive hearing of MGM'c damages complaint.

I'm a little surprised at the outcome, as I didn't think it would be quite so clear cut. And now I'll have to re-write the part of my Open University internet law course that covers Grokster.

Look to the usual suspects for more in depth commentary. I have to agree with the commentators that say the keys to future P2P cases is what evidence specifically will be enough to prove "inducement" and how the disagreeing justices will resolve their differences on who can claim the Sony "substantial non-infringing uses" safe harbour.

The Grokster decision in full

Here's the Grokster decision written by Justice Souter. Justice Ginsburg's concurring take on the case. And Justice Breyer's concurrence.

Grokster lose

Breaking news:

SCOTUSblog reports that "The Supreme Court ruled unanimously that developers of software violate federal copyright law when they provide computer users with the means to share music and movie files downloaded from the internet."

I don't have any details yet but that sounds pretty clear, much more so than expected.

Update: An early news report on the decision is on Yahoo. "We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties," wrote Justice David H. Souter in a unanimous decision.

Ndiyo and tuxlab

It seems John's Ndiyo has a forerunner in South Africa, tuxlab.

"WHAT IS A tuXlab?
A partnership between the Shuttleworth Foundation and South African schools to provide learners access to information, knowledge and education. This is carried out through the establishment of Open Source computer centres in the schools. Open Source (non-proprietary) Software is installed on these computers as an economical and sustainable way to bring the power of computing to the learners.

tuXlabs can be found in schools all over the Western Cape, Eastern Cape & Limpopo. Click here to see a list of existing tuXlabs.


• The tuXlab project has installed:
• 110 tuXlabs in the Western Cape since August 2003
• 25 labs in the Eastern Cape since February 2005
• 19 labs in the Limpopo since March 2005
• We have a committed team and a dedicated band of volunteers who assist in tuXlab installations.
• We have given over 100 000 learners the power of Open Source Computing."

What a terrific project.

Guardian on the LSE ID report

The Guardian have weighed in on the LSE report.

And I'm reminded of the ACLU's flash animation on the future of ordering a pizza, once IDs are a wired networked.

LSE ID Card Report

The LSE report on the government's ID card scheme, The Identity Project: an assessment of the UK Identity Cards Bill and its implications, has been published today and has already been rubbished by a government minister on the radio this morning, attempting to get his retaliation in first. Executive summary of the report here,(which runs to just 10 pages compared to the full report at 318).

The preface to the LSE report is written by Richard Thomas, the government's own Information Comissioner. In it he re-iterates his concern at the government's proposals and his belief that the scheme is "disproportionate to the stated objectives behind the introduction of ID cards." He goes on to say that "Eradicating unnecessary personal information and ensuring that individuals, rather than government, have appropriate control over how their personal information is handled, will go a long way towards achieving the essential pre-requisite of establishing a system that inpires public confidence: one where individuals can be identified when they really need to be rather than one which has the intrusive side effect of the government identifying and recording information about how individuals go about their daily lives."

Thomas has been a reasoned critic of the government's proposals from the moment he had examined them in depth but they have totally ignored his concerns. That he has to come out publicly endorsing an independent academic study which is critical of the government's proposals is quite extraordinary. Congratulations to him for having the courage to do so.

The report itself notes six areas of serious concern with the current proposals as well as offering an alternative more workable scheme. From the LSE's own website, the concerns in brief are:

Will the technology work? No scheme on this scale has been undertaken anywhere in the world. Smaller and less ambitious schemes have encountered substantial technological and operational problems that are likely to be amplified in a large-scale national system. The use of biometrics creates particular concerns, because this technology has never been used at such a scale.

Is it legal? In its current form, the Identity Cards Bill appears to be unsafe in law. A number of elements potentially compromise Article 8 (privacy) and Article 14 (discrimination) of the European Convention on Human Rights. The government may also be in breach of law by requiring fingerprints as a pre-requisite for receipt of a passport. The report finds no clear case why the ID card requirements should be bound to internationally recognized requirements on passport documents.

Security The National Data Register will create a very large data pool in one place that could be an enhanced risk in case of unauthorized accesses, hacking or malfunctions.

Citizens' acceptance An identity system that is well-accepted by citizens is likely to be far more successful in use than one that is controversial or raises privacy concerns. For example, it will be critical for realizing public value that citizens want to carry their ID cards with them and to use them in a wide range of settings.

Will ID cards benefit businesses? Compliance with the terms of the ID cards Bill will mean even small firms are likely to have to pay £250 for smartcard readers and other requirements will add to the administrative burdens firms face.

The Executive summary at least should be compulsory reading in secondary school civics (do they still call it "civics" in schools now?) classes all over the country. Likewise concerned citizens of every brand.

Turning surveillance technologies inside out

Howard Rheingold suggests keeping an eye on Marc Smith at Microsoft, " who is thinking about ways to use tomorrow's panoptic snooping technologies -- cameras, microphones, even sensors of your bodily processes -- as a new kind of authoring." Smith reckons that since government and industry will be moniotoring our behaviour in intimate detail, why shouldn't we keep our own records, if only to challenge the official ones. That's pretty much David Brin's thesis. Smith sees his human body black box (equivalent to the airliner black box) as being primarily a positive life enhancer rather than a mere defence mechanism, however.

Cost drive for cheap ID cards?

The Sunday Times seems to think the UK government are sufficiently worried about the cost of their ID cards scheme that they may be considering a cut price alternative.

The Sunday Independent meanwhile suggest the government are going to sell people's personal details from the ID card database in order to raise extra money. The government had denied this by the time I tuned into teletext yesterday evening, though they have agreed that banks, for example, will be able to check the ID card database for a fee. Hmmm.

5000+ sign no2id pledge

More than 5000 people have now signed the NO2ID pledge against ID cards. Not bad in 2 weeks.

Grokster hours and counting

With hours to go before the US Supreme Court announce their decision in the Grokster case, the experts have been speculating on the outcome. Not that this is anything new of course. The speculation began on the day of the hearing. Ernest Miller has a convincing argument on why this and the post decision mass online analysis and debate are a good thing. In a nutshell - open debate about important issues by smart people improves the overall knowedge pool for society and that's good.

Meanwhile, copyright news on this side of the pond is that the French have decided to act on their worries about Google's project to digitise major academic libraries and produce a French equivalent. Good for them.