Friday, October 22, 2010

Eldred mark 2 heads to the US Supreme Court

This week the Center for Internet and Society at Stanford University filed a petition for a writ of certiorari asking the United States Supreme Court to review the Golan case.  Ever since the Supreme Court ruled, in a split 7-2 decision in January 2003, against Eric Eldred (and his lawyer, Larry Lessig) who questioned the constitutionality of repeated extensions of copyright terms, copyfighters have been looking to return the issue to the Court's agenda.  The Golan case has been their great hope of, if not overturning, then putting a dent in the Eldred ruling.  Brewster Kahle failed to get the court to consider overturning Eldred in 2008. But since the Kahle case was all but the same as the Eldred case that was arguably an almost inevitable, if disappointing, outcome.

Technically the case is about re-applying copyright protection to thousands of foreign works the Copyright Act had previously placed in the public domain. Mr Golan performs and teaches works by foreign composers like Shostakovich and Stravinsky. He argues that the removal of some of these works from the public domain, due to changes in US copyright laws, led to higher costs to him for performance fees, royalties, sheet music rentals etc. When these costs are too high they may interfere with his first amendment rights to freedom of expression.

There are other issues being argued but effectively, like the Eldred case, this is about testing the limits of congressional power to continually expand the scope and term of copyright.  It will be really interesting to see whether the Court agrees to look at the case.

Random cybergeek trivia: Having argued and lost the Eldred case before the US Supreme Court, afaik Larry Lessig earned his first courtroom victory in September 2007, in the Golan case.

Is turnover the barometer of “Worth”?

Rich Huxley has an insightful post on the music business, Is turnover the barometer of “Worth”?

"Less than 10% of signed artists recoup. Take Maximo Park for example. They have by their own admission never made a penny from record sales and make their money from DJ sets in the main. An example I have first hand knowledge of, Embrace, have sold millions of albums, they were a genuinely massive band; they performed from Glastonbury main-stage to Top Of The Pops and everywhere in-between. When they split from Virgin, they owed their label three quarters of a million pounds. I guess my point is that if we promote the Trad Music Biz’s model as “The model” then the message we’d be sending is:
  • less than one percent of musical artists are part of the music business
  • only a tenth of those will recoup and make money from their record sales, and that’s good
  • an artist should be saddled with debt, the rate at which they pay that back is equivalent to a credit card with a 900% interest rate
I can’t promote that, I can’t encourage it, and it’s not representative of the vast swathe of music makers interests to do so."

Thursday, October 21, 2010

The consumer perspective on the open internet

Video and reports from the POLIS and Communications Consumer Panel 'Net neutrality and the Open Internet: the consumer perspective' event at the LSE in September are now available.  The 4min 23sec video gives a very good flavour of the discussions on the day.

Consumer Panel Net Neutrality event from Communications Consumer Panel on Vimeo.

Wednesday, October 20, 2010

James Boyle and Pamela Jones win EFF Pioneer Awards

James Boyle and Pamela Jones have been awarded the Electronic Frontier Foundation's highest acolade and named as EFF Pioneer Award winners, 'leaders who are extending freedom and innovation on the electronic frontier.'
"James Boyle is William Neal Reynolds Professor of Law and co-founder of the Center for the Study of the Public Domain at Duke Law School. Professor Boyle is recognized for his exceptional scholarship on the "second enclosure movement" -- the worldwide expansion of intellectual property rights -- and its threat to the rich public domain of cultural and scientific materials that the Internet might otherwise make available. An original board member of Creative Commons and co-founder of Science Commons, Professor Boyle has worked for over 20 years as both an academic and institution builder to celebrate and protect the values of cultural and scientific openness.
When Pamela Jones created Groklaw in 2003, she envisioned a new kind of participatory journalism and distributed discovery -- a place where programmers and engineers could educate lawyers on technology relevant to legal cases of significance to the Free and Open Source community, and where technologists could learn about how the legal system works. Groklaw quickly became an essential resource for understanding such important legal debates as the SCO-Linux lawsuits, the European Union antitrust case against Microsoft, and whether software should qualify for patent protection."
Congratulations to both and to the other award winners this year, Steven Aftergood of Secrecy News and Hari Krishna Prasad Vemur, a security researcher in India who revealed serious security flaws in India's paperless electronic voting machines; enduring jail time, repeated interrogations, and ongoing political harassment from a political establishment more focussed on covering up the problems than doing anything to address them.

Tuesday, October 19, 2010

Net neutrality on BBC's Click on

I made a brief appearance on the BBC Radio 4 'Click On' programme yesterday to discuss net neutrality with presenter Simon Cox, ZDNet editor, Rupert Goodwins and chief technology writer at the Economist, Tom Standage. The segment starts about 17.5 minutes into the programme.  Simon Cox opened with a succinct explaination of net neutrality suggesting it boiled down to the principle that all data on the internet, no mater what it is or where is comes from, should be treated equally.

We then went on to have a wide ranging discussion during which I displayed the standard academic's curse of trying to explain the complexity of the issue, Tom Standage was very entertaining on how he thought the concept of net neutrality was 'silly' and Rupert Goodwins made the points I was trying to make but in a much more accessible way for a radio audience.

Simon Cox invited me to begin the discussion by setting some of the background and the history.  I explained that the Net kinda grew by accident and there were a couple of key things that facilitated that:

1. General purpose computers - which can be programmed to do anything and are not controlled (post sale) by the vendor/manufacturer

2. The open network - which was open to everyone not just trusted sources like the BBC

I also explained that it grew on the back of the telephone network originally and before governments or telcos really noticed.  So all of this - the general purpose computers, the open network and the lack of control led to an explosion of commercial, social and cultural creativity.  Enterprises like Amazon, the World Wide Web itself, Wikipedia, Google, Facebook etc. grew.  And because of the absence of concentrated control of the platforms or network none of the instigators of these entities had to ask anyone for permission. No permission was required.

Now, however, governments and commerce are both very much aware of the net and energetically attempting to assert control over it.  These combined forces are leading to a closing down of the Net and an evolution towards a future of fragmentation (walled gardens and national firewalls) and control.  That in turn kills the facilty for innovation and creativity which should have us asking where the next Google or Web is coming from.

Rupert Goodwin then went on to explain some of the commercial forces involved - how, for example, when network owners also have an interest in content they naturally try to cut out competitors and keep people in walled gardens and that's why net neutrality is important.  So there is a very very strong commercial impetus to break the internet. People with great ideas in back bedrooms will be shielded out and we'll be back in the bad old days where if you don't play the game of the big companies you don't play at all.

Tom Standage amusingly pointed out that if you get three geeks in a room you'll get 4 definitions of net neutrality - true! -  and then launched into a entertaining radio friendly discourse on the concerns of people advocating net neutrality.  He condensed those concerns into (a) big companies are too powerful and (b) governments are going to censor the net (c) geeks talking about the end to end principle (d) walled gardens and then said these were different discussions and dismissed net neutrality as the thing you invoke when something you don't like is happening on the Net.  He suggests that each element be taken separately and for example take a legitimate concern like network operators engaging in discrimination and deal with it in a pretty obvious way by encouraging more competition.

He went on to say that the reason network services were so much better in Europe than the US was that competition was much better in Europe with dozens of available suppliers whereas there were only three big ISPs on the other side of the pond.

Tom and I then got into a discussion about what exactly he meant by competition - was it competition between applications providers, between network service suppliers, between content suppliers, device suppliers etc. - which didn't make it onto the airwaves. My final comment of that debate, which did make the final cut, was that I was less than impressed with the state of the competition between network providers in the UK since there were only about 6 main suppliers, most of which rented their lines from BT and my personal experience of switching suppliers had been painful.

Simon Cox invited Rupert Goodwins to comment then on whether competition was the key and he explained that it was part of it but the evolution of the market tends to lead to amalgamations and mergers and ultimately a small number of large companies in a virtual monopoly or duopoly situation.  He went on to disagree with Tom Standage about net neutrality being too wide a term - "that's like saying freedom is too wide a term and that we should never argue about freedom".  (Why can't I do soundbites like that?!). And that the basic principle that there should be open access where the people who provide the network services don't have control over what content is delivered is a very important foundation principle. And that's where the core of net neutrality lies.

Tom then came back and argued that that's fair enough but as soon as you try to write it down in law it gets difficult. The internet is not neutral now and there are lots of things we don't want to be neutral. For example it is desirable that spam is blocked or gamers might want superfast low latency broadband pipe that they would be prepared to pay extra for.  The danger of saying things must stay as they are is that you fossilise the Internet in its current state and a simplistic net neutrality law might just do that - making illegal a lot of things that we already do and making things worse. So the best legislation in relation to net neutrality is none.

Rupert disagreed and said the law should specify that network operators have a duty to provide a level of access and include sanctions if that service is not up to scratch.

In the segment broadcast Simon Cox then wound up the discussion noting we could have continued for much longer.  In the recording studio he had asked me for a final comment which understandably didn't make the final cut due to the time constraints on the programme.  Essentially I just said that whether you were looking towards a future of dynamic competition as Tom favoured or net neutrality and an open net as Rupert was arguing, it needed to be backed up with a deep understanding of the complexities of the issues and a political commitment to deploy the resources required to address them.  Sadly politicians are busy generalists and don't do deep.

As a radio pundit I should probably stick to blogging, teaching, writing or just listening.  I found myself agreeing with a lot of what both Tom Standage and Rupert Goodwins were saying.  I would be interested to know if Tom really believes net neutrality is 'silly' or he's just using that as a rhetorical trick to emphasise his concern that writing a net neutrality law that is balanced is a very difficult thing to do.  If the latter then I agree it is difficult and it could be damaging if it was done carelessly or got moulded by the conventional lobbying processes into an inappropriate form.  But saying that some groups invoke net neutrality as a cure for the things they don't like on the internet and that writing a net neutrality law is difficult don't necessarily come together to mean that net neutrality is silly.

As James Boyle says, lots of people have different definitions of "the environment" but just because it is hard to define doesn't mean it is 'silly' or not useful.  If anything that abstract, ill-defined concept of the environment is an articulation of a shared interest that brings that interest - the environment - into being.  The duck hunter and the bird watcher might not like each other but the both have a shared interest in protection the birds' ecology.

Thanks to Simon Cox, Tom Standage and Rupert Goodwins - I enjoyed the discussion in the studio - and to Click On series producer, Monise Durrani, for the invitation.