Call for international negotiation on the public domain

I also learn from the Enlightened Economist that I'm not the only one who has been arguing recently for a 'restoration of the wildlands' or space for the public domain to roam free or find safe harbours. Apparently Berkeley professor of economics, Suzanne Scotchmer, at the Global Economic Symposium, called "for international negotiation on what forms of knowledge should form a global public domain and be kept out of the international arms race towards ever-tougher (and probably ever-less enforcable) protection of IP via ludicrous patents and copyright terms."

James Boyle book seminar

I did a seminar for some respected colleagues at the OU yesterday on James Boyle's book, The Public Domain.

Boyle is an exceptional scholar, activist and storyteller.  Needless to day I can't recommend the book highly enough.

In The Public Domain: Enclosing the Commons of the Mind, he eloquently and passionately argues that our culture, science and democracy depend on a delicate balance between ideas that are controlled by intellectual property and those that are freely available in the public domain.  He tells a terrific series of engaging stories about, for example, why the building blocks of synthetic biology, business methods, pairs of musical notes are now owned, why blues, jazz or soul music would probably be illegal if it were invented today, why most of 20th century culture is legally unavailable to us, and why the World Wide Web would, most likely, have been killed at birth if lawyers, commerce and policymakers could have reacted quickly enough.

This all adds up to what Boyle calls a 'second enclosure movement' – except that on this occasion we’re not facing an enclosure of the grassy commons of olde Englande but rather an enclosure of the 'commons of the mind' and a serious erosion of the public domain, a state of affairs future generations will rightly condemn us for allowing to happen; at the very point that we have the technical and economic capacity to facilitate universal access to recorded human knowledge, a digital library of Alexandria.

The book, destined to become the standard text in the area, also serves as the Silent Spring of the information society – a clarion call to understand and protect the public domain through scholarship, communication, articulation and recognition of shared interests and values that allow that notion - the public domain - to come into public consciousness and a diverse ecology of activism to support all this. A kind of "environmentalism for information" and the public domain.

Sadly I can't put the slides on Slideshare since I included some audio and video sequences of the evolution of some songs James mentions in the book and a parody animated sequence of Disney characters explaining copyright, fair use and the public domain.

My thanks to John Naughton, who very kindly attended on his first day of  long overdue study leave and recorded proceedings, despite having endulged my rants about IP for more years than he would care to remember.  So John had already heard the stories and my views on them on mulitple occasions previously.  Thanks also to Doug Clow who made a valiant attempt, live blogging, to make some sense of my incoherent ramblings during the afternoon.

In the final chapter of the book James makes a persuasive and heartfelt plea for a politics of the public domain. Although I'm pessimistic about his vision coming to pass I was just thinking in preparing for the seminar and following on from my presentation at the Gikii conference recently, wouldn't it be nice to have a visual representation of the erosion of the public domain equivalent to the kind of work James Balog does with the Extreme Ice Survey on glaciers.



Update: Just a PS for policymakers. When you do get round to reading The Public Domain and you should, pay particular attention to what Professor Boyle calls the "Jefferson warning" and its corrolary the "Sony axiom".

Update 2: Diane Coyle aka the enlightened economist posted a terrific review of the book at more or less the same time as I was discussing it yesterday.

Right to Read campaign in India

India has launched a right to read campaign.

"

The Problem

Nearly 70 million persons in India have some form of disability (visual impairment being the most common) that prevents them from reading printed matter. The good part is that there are technologies available which can help persons with print impairment to read, if the material is converted into an alternate format such as large print, audio, Braille or any electronic format. Unfortunately the Indian law does not permit a person with print impairment to make an accessible copy of a book in order to be able to read it. What this means is that every time a print impaired person wishes to read a book he/she has to get permission from the copyright-holder – a completely unfeasible proposition.

The Solution

To solve this problem the law in question i.e. the Indian Copyright Act, 1957 should be amended to permit persons with print impairment to convert materials into accessible formats.

Campaign Objective

The Right to Read campaign seeks to accelerate change in copyright law, raise public awareness on the issue of access to reading for the print-impaired; and gather Indian support for the Treaty for the Blind proposed by the World Blind Union at the World Intellectual Property Organisation (WIPO).

• click here to read the right to read declaration"

 Thanks to Christopher Friend of the World Blind Union for the alert via the A2k list.

Senator Proposes $15 Million in Grants for Open Textbook Creators

Thomas O'Toole at the E-Commerce and Tech Law blog reports that:

"Last week Sen. Richard Durbin introduced a bill (S. 1714) that would create a $15 million federal grant program for "open textbooks." The bill is a further example of continuing federal government interest in openness, transparency, and using information-sharing technologies to promote social aims.
Sen. Durbin is promoting his bill as a means to drive down the price of college textbooks, but I think it is going to have more far-reaching consequences than that. If it passes."

Fry and Anderson

Stephen Fry has been interviewing Ross Anderson for BBC Radio 4.

Professor wins fees from Joyce estate

In a long running legal saga, the San Francisco Chronicle reports that:

"A Stanford professor who battled James Joyce's estate for the right to quote family documents in research on one of the author's most celebrated works will get $240,000 from the estate for her legal fees, the university said Monday.

Carol Shloss' settlement with Joyce's heirs ends a court case in which the estate, fiercely protective of its rights to his works, refused to let Shloss use excerpts from his papers or his daughter's medical records in her 2003 book, "Lucia Joyce: To Dance in the Wake""

Lily unites musicians against file-sharing

Rory Cellan-Jones reports that Lily Allen has single handedly turned around UK music artists' opposition to 3 strikes.

Apparently the artists are now in favour of 3 strikes where the third strike is a massive restriction of the user's bandwidth rather than a suspension of access to the Net.

U.S.-EU IPR Enforcement Working Group

From TACD:

"A meeting of the EU-U.S. IPR Enforcement Working Group  took place today September 23, 2009 in Washington,DC.  The TransAtlantic Consumer Dialogue (TACD) and the TransAtlantic Business Dialogue were both invited to the event entitled ” IPR Enforcement Working Group – Meeting with Private Sector.”  Below are a few highlights from the meeting, comprehensive notes of the meeting will follow.
The meeting was well-attended with about eighty participants including industry representatives, government officials, and just four non-profit representatives.  Susan Wilson (US Dept. of Commerce) and Luc Devigne (EU Commission) were the co-chairs of the meeting. In addition, Stan McCoy and Jennifer Groves of USTR and other EU officials also presented their viewpoints.  The U.S. and EU government representatives reported on various IPR enforcement related activities and answered questions.
Susan Wilson in her introduction stated the IPR Enforcement Working Group’s objectives were:
- To promote enforcement
- To fight piracy and counterfeits
- To promote public & private partnerships on piracy and counterfeits
A copy of the meeting agenda is here."

Human Provenance pilot project

From Terri Dowty at ARCH:

"The UK Border Agency has just announced a new initiative – you may have seen a bit about it in the Observer this week.
It’s called the ‘Human Provenance pilot project’ and the ’stakeholder letter’ sent out a couple of weeks ago by UKBA explains:

Human Provenance testing analyses the isotope configuration as stored in a person’s body. All samples will be provided voluntarily. The analysis itself involves the testing of hair and nail samples to allow us to be able to match results using internationally recognised isotope comparison methods to help identify a person’s true country of origin. We will also be testing mitochondrial and Y chromosome DNA, which are collected by use of a mouth swab and matching results using similar comparative methods. These samples will not provide specific information about a person’s identity but simply an indication of their possible nationality allowing other investigations to be made.

See this statement from the British Society for Human Genetics if you want to know why the use of DNA to determine ethnic origin is a seriously daft idea.
UKBA’s letter continues:

…The pilot will also address the issue of children being brought to ASU as part of an asylum seeking family when they are in fact unrelated.

Oh, terrific. Quite apart from the sheer inhumanity of revealing possible family secrets to an already traumatised child and risking family meltdown, the whole idea gives off a whiff of the project’s designers having led blissfully sheltered lives."

TI tell calculator hackers to cease and desist

From the Register: Texas Instruments aims lawyers at calculator hackers.

"Lawyers for Texas Instruments are taking aim at a group of calculator enthusiasts who posted the cryptographic keys used to modify the devices so they run custom-designed software. Over the past few weeks, TI has sent webmasters letters invoking the DMCA, or US Digital Millennium Copyright Act (PDF) (http://www.copyright.gov/legislation/dmca.pdf), and demanding they remove the keys published in blog postings."

Green Dam removed from some Chinese school computers

The Washington Post is reporting that some of the schools in China have had so much trouble with the 'Green Dam' software filters mandated by government that schools administrators have decided to remove the software.

MoJ consultation on web defamation

The UK Minstry of Justice has opened a consultation on Defamation and the internet: the multiple publication rule.

The BBC has the story.

Google Book a disaster for scholars

Following the Department for Justice formally raising concerns about the Google Book settlement last week the deal is in the news and generating lots of heat and light on listservs, blogs, and in the standard news media.

Most of the criticism is focussed on the Google monoply and privacy issues so I thought it was worth referring back to Geoffrey Nunberg's piece in the Chronicle at the end of last month, where he outlines the concerns about the poor handling of meta data which will lead to usabilty problems with Google book search, Google's Book Search: A Disaster for Scholars.

"we're sometimes interested in finding a book for reasons that have nothing to do with the information it contains, and for those purposes googling is not a very efficient way to search. If you're looking for a particular edition of Leaves of Grass and simply punch in, "I contain multitudes," that's what you'll get. For those purposes, you want to be able to come in via the book's metadata, the same way you do if you're trying to assemble all the French editions of Rousseau's Social Contract published before 1800 or books of Victorian sermons that talk about profanity.

Or you may be interested in books simply as records of the language as it was used in various periods or genres. Not surprisingly, that's what gets linguists and assorted wordinistas adrenalized at the thought of all the big historical corpora that are coming online. But it also raises alluring possibilities for social, political, and intellectual historians and for all the strains of literary philology, old and new. With the vast collection of published books at hand, you can track the way happiness replaced felicity in the 17th century, quantify the rise and fall of propaganda or industrial democracy over the course of the 20th century, or pluck out all the Victorian novels that contain the phrase "gentle reader."

But to pose those questions, you need reliable metadata about dates and categories, which is why it's so disappointing that the book search's metadata are a train wreck: a mishmash wrapped in a muddle wrapped in a mess.

Start with publication dates. To take Google's word for it, 1899 was a literary annus mirabilis, which saw the publication of Raymond Chandler's Killer in the Rain, The Portable Dorothy Parker, André Malraux's La Condition Humaine, Stephen King's Christine, The Complete Shorter Fiction of Virginia Woolf, Raymond Williams's Culture and Society 1780-1950, and Robert Shelton's biography of Bob Dylan, to name just a few. And while there may be particular reasons why 1899 comes up so often, such misdatings are spread out across the centuries. A book on Peter F. Drucker is dated 1905, four years before the management consultant was even born; a book of Virginia Woolf's letters is dated 1900, when she would have been 8 years old. Tom Wolfe's Bonfire of the Vanities is dated 1888, and an edition of Henry James's What Maisie Knew is dated 1848.

Of course, there are bound to be occasional howlers in a corpus as extensive as Google's book search, but these errors are endemic...

I have the sense that a lot of the initial problems are due to Google's slightly clueless fumbling as it tried master a domain that turned out to be a lot more complex than the company first realized. It's clear that Google designed the system without giving much thought to the need for reliable metadata. In fact, Google's great achievement as a Web search engine was to demonstrate how easy it could be to locate useful information without attending to metadata or resorting to Yahoo-like schemes of classification. But books aren't simply vehicles for communicating information, and managing a vast library collection requires different skills, approaches, and data than those that enabled Google to dominate Web searching."

ECJ Advocate General sides with Google, web advertisers

The ECJ Advocate General, Poiares Maduro, has just issued an opinion in the Joined Cases C‑236/08, C‑237/08 and C‑238/08

Google France

Google Inc.

v

Louis Vuitton Malletier



Google France

v

Viaticum

Luteciel



Google France

v

CNRRH

Pierre‑Alexis Thonet

Bruno Raboin

Tiger, a franchisee of Unicis

The AG effectively seems to say (disclaimer - I've only very quickly scanned the judgement) that Google, other search engines and web advertisers cannot be held responsible for trademark infringement by virtue of their choice of keywords.

"The question, as put to the Court, is whether the use of a keyword which corresponds to a trade mark can, in itself, be regarded as a use of that trade mark which is subject to the consent of its proprietor...

48. The goal of trade mark proprietors is to extend the scope of trade mark protection to cover actions by a party that may contribute to a trade mark infringement by a third party. This is usually known in the United States as ‘contributory infringement’, (19) but to my knowledge such an approach is foreign to trade mark protection in Europe, where the matter is normally addressed through the laws on liability. (20)

49. The trade mark proprietors are urging the Court to go even further: to rule, in effect, that the mere possibility that a system – in the present cases, AdWords – may be used by a third party to infringe a trade mark means that such a system is, itself, in infringement. Indeed, the trade mark proprietors do not wish to limit their claims to cases where AdWords is actually used by sites offering counterfeit goods; they want to nip that possibility in the bud by preventing Google from being able to make keywords corresponding to their trade marks available for selection. From the existence of a risk that AdWords may be used to promote those counterfeit sites, they deduce a general right to prevent the use of their trade marks as keywords. If the infringement lies in the use of those keywords in AdWords, as the trade mark proprietors claim, that is so whether or not the sites displayed in response actually infringe the trade mark.

50. The Court is thus being asked to expand significantly the scope of trade mark protection. I shall make clear why I believe that it ought not to do so. My examination of the question whether there is trade mark infringement will reveal, first, that the use in AdWords of keywords which correspond to trade marks does not, in itself, constitute a trade mark infringement, and, secondly, that the connection with other (potentially infringing) uses is better addressed, as it has been hitherto, through the rules on liability...

III – Conclusion

155. In view of the above, I propose that the Court state in answer to the questions referred by the Cour de cassation:

(1) The selection by an economic operator, by means of an agreement on paid internet referencing, of a keyword which will trigger, in the event of a request using that word, the display of a link proposing connection to a site operated by that economic operator for the purposes of offering for sale goods or services, and which reproduces or imitates a trade mark registered by a third party and covering identical or similar goods, without the authorisation of the proprietor of that trade mark, does not constitute in itself an infringement of the exclusive right guaranteed to the latter under Article 5 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks.

(2) Article 5(1)(a) and (b) of Directive 89/104 and Article 9(1)(a) and (b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark must be interpreted as meaning that a trade mark proprietor may not prevent the provider of a paid referencing service from making available to advertisers keywords which reproduce or imitate registered trade marks or from arranging under the referencing agreement for advertising links to sites to be created and favourably displayed, on the basis of those keywords.

(3) In the event that the trade marks have a reputation, the trade mark proprietor may not oppose such use under Article 5(2) of Directive 89/104 and Article 9(1)(c) of Regulation No 40/94.

(4) The provider of the paid referencing service cannot be regarded as providing an information society service consisting in the storage of information provided by the recipient of the service within the meaning of Article 14 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’)."

The AG's detailed analysis is exhaustive (some might say exhausting!) and technical but the decision seems to come down to :

Q: Can the use of a keyword which corresponds to a trade mark, in itself, be regarded as a use of that trade mark which is subject to the consent of its proprietor?

A: No.

I really need to escape my IP addiction. I have absolutely no time to be reviewing these kinds of cases at the moment, so look to the usual suspects for a proper analysis.

Gikii IV Amsterdam 2009

I had the privilege of attending the Gikii IV conference, on the intersections between law, technology and popular culture, at the Institute for Information Law (IViR) in Amstersdam last week. As ever with Gikii it was a thoroughly thought-provoking, engaging and entertaining couple of days and all of the presentations were terrific. Gikii is possibly unique in the conference calendar in that there has never been a dud paper. My own minor contributions aside, every Gikii presentation over the past four years, even and especially when it has been testing some wild ideas on a group of professional peers and friends, has been excellent.

Highlights for me this year were Bernt Hugenholtz's succinct outline of the consequences of the Google Book settlement for Europe, Richard Jones's enlightening story of 'intelligent' electronic tags, Andrés Guadamez on Luddism 2.0, Peter Yu's hilarious contribution on the evolution of intellectual property, Chris Marsden on the politics of net neutrality and TJ McIntyre on the increasing push for legal and technical filters to protect children from the web.

Chris, Andrés and Peter deserve a special mention for not just carrying the toughest slot in the schedule - after lunch on the second day - but really grabbing the audience and stimulating the debate. In addition TJ's meticulously researched paper in the final session of the conference rounded the whole conference off on a high.

Mathias Klang, whose own terrific contribution 'Strangelove and salami: an illustration of the unintended consequences of technical solutions', came in the opening session of the conference on Thursday has offered to host Gikii V at the University of Gothenburg next year.

When the papers and presentations go up on the Gikii website I'll fill in the links here but in the meantime many thanks to all the Gikii goers and organisers, particularly Joris van Hoboken, Lilian Edwards, Andrés Guadamuz and Ian Brown for another terrific two days.

HADOPI 3 strikes resurected by French government

The 3 strikes legislation thrown out by the highest constitutional court in France was ressurected by the French Senate yesterday.

Soham detective on the CRB check paranoia

Chris Stevenson, the detective who solved the Soham murders and put Ian Huntley behind bars, has spoken out in this morning's Times about the government's latest child safety database initiative.

"In 2002 I was a senior detective with Cambridgeshire police. That August two ten-year-old girls disappeared, and I took over the investigation. Two days later I set up the surveillance operation that led to the arrest of Ian Huntley and Maxine Carr a few hours later.

Huntley has not been a free man since. He was convicted of the murders of Holly Wells and Jessica Chapman in December 2003.

Last weekend my actions came back to haunt me. My wife and I went to Benson, Oxfordshire, to celebrate the birthday of my nine-year-old grandson. We went off to see him play as goalkeeper for his village under-10s football team. Mum and dad, sisters, uncles and both grandparents were there to cheer him on.

One of my hobbies is photography, so I took my camera to take a few “action shots” of my grandson. Ten minutes later I was approached by the manager, who said: “Can I ask you not to take photographs, it’s against the regulations. You have to get permission in writing from every parent of every child.”

I felt humbled. I am now a suspected paedophile — along, I fear, with millions of other parents and grandparents. I looked at the pictures I had taken. They were of my grandson making saves as his team came under pressure. I am sure he would have liked to look back on them in the future... I deleted the photographs."

The former (now retired) detective chief superintendent explains in the body of the article that it was an unfortunate chance that brought the two girls into contact with their murderer. A lot has been made about Huntley being a school caretaker and given his history he should not have held such a position but he was at a different school to the two girls. Huntley's partner Maxine Carr had been a classroom assistant in Holly and Jessica's school and it was her the two girls were seeking out when they found Huntley, unfortunately, home alone.

To treat every adult in the country as if they are likely to have the same mentality as the thankfully rare Huntley mindset is less than sensible and as the former detective chief superintendent says, it is not going to stop another tragedy. And despite the reported ministerial climbdown on the 'solve it with another database' approach to child safety, they're continuing to press on and claim that their scheme has "got the balance about right". When the headlines have passed we can therefore expect the system to merrily continue its primary function of ensuring the government has been seen to have done something in response to the tragic events at Soham. That the something is big, costly, affects everyone and involves computers is presumably a bonus from the government's perspective. That it is big, costly, turns every adult in the country into a suspected paedophile and will get in the way of protecting children who really are at risk, is shameful.

Appeals court favours Alcatel-Lucent v Microsoft

From CNet news:

"A federal appeals court on Friday affirmed a lower court ruling that Microsoft infringed on a patent owned by Alcatel-Lucent, but said the jury award of $358 million in damages was excessive...

The patent, whose application was originally filed by engineers at AT&T, covers a method of entering information into fields on a computer screen without using a keyboard."

Apple lock Palm out of iTunes again

The tit for tat wars between Apple and Palm are continuing as Apple has again locked Palm Pre users out of iTunes.

Obama's health reforms and risk psychology

Andrew Koppelman at Balkanization has been explaining one of the key reasons President Obama has been stuggling with his healthcare reform proposals. About 75% of US citizens apparently have health insurance they believe will cover them against any future health problems. They also believe Obama's proposals will put their access to healthcare at risk.

The reality is that insurance companies have an incentive to minimise their financial support for people with serious long term health needs and a recent American Journal of Medicine study suggests 62% of all personal bankruptcies in the US were caused by medical costs. Koppelman says:

"In 2007, 62% of all personal bankruptcies were driven by medical costs."Nationally, a quarter of firms cancel coverage immediately when an employee suffers a disabling illness; another quarter do so within a year," the report states.Most of the medical debtors were well educated, owned homes, and had middle-class occupations, and three-quarters of them had health insurance. "Unless you're a Warren Buffett or Bill Gates, you're one illness away from financial ruin in this country," lead author Steffie Woolhandler, M.D., of the Harvard Medical School, said in an interview. "If an illness is long enough and expensive enough, private insurance offers very little protection against medical bankruptcy, and that's the major finding in our study."

In other words, all those people who oppose health care reform because they like the coverage they’ve got really have no idea of the real dangers they face, because they have no idea what their insurance companies would really do to them if they got sick.This poses a real political challenge for the proponents of reform.The people who will most benefit from the consumer protections that Obama is advocating – those who will experience serious illness in the future – have no idea that they are benefiting, and so will not politically reward those who deliver the benefits.The Democrats could give most Americans substantially greater security and receive no reward for it."