Member of Parliament Janelly Fortou is sending a text to Members of Parliament intended to convince them to vote for the latest compromise on the Enforcement Directive worked out behind closed doors. This is online at the AEL Wiki.
The AEL Wiki has also a page up countering Ms. Fortou's claims. I have spent some time today on spelling checks.
I would also like to focus on the relation to patent disputes. Ms. Fortou writes:
There is no longer a concern that the Directive’s remedies will be applied unjustly in patent disputes.
Despite initial opposition by the Legal Affairs Committee, who had sought to exclude these from the scope of the Directive, the Council text applies to patent infringements. The Legal Affairs Committee properly believed that certain of the Directive’s measures (double damages and strong criminal sanctions) should not apply to patent infringements. This concern has been mitigated by the elimination of double damages and criminal sanctions from the Directive. Patent litigation is almost exclusively conducted between competing commercial organisations involved in the same area of trade. Patent litigation tends to focus on questions about the validity of the relevant patent, and not necessarily on counterfeiting matters. In these circumstances, strong criminal sanctions and double damage remedies are less appropriate. Given that these remedies have been eliminated from the Directive, however, there is no longer a concern that they will be unjustly applied in patent disputes.
I support the FFII call for an amendment throwing patent disputes out of the scope. So I am interested in comparing this latest text with the reason given for doing exactly that in the September 2003 report of Ms. Fortou I discussed at the time.
That document said on page 6: "Patents need to be excluded from the scope of the directive in view of their special nature." And on page 27 it explains: "On the matter of patents the rapporteur proposes excluding them from the directive’s scope, since the European Patent Convention is the sole text in force at present and the question of patent protection is such a complex and delicate issue that it deserves a specific text, perhaps following adoption of the text on the Community patent."
That reasoning is in no way invalidated by dropping some of the stronger remedies of the original Commission proposals, like double damages and criminal sanctions.
The European Patent Convention is still the only text in force at present. And the coming patent regulation is still the correct place to legislate patent sanctions.
Doing so in this Directive without discussing the balance with the future patent regulation seems to be a sure-fire way to assure contradictions between both texts. For the very least, those supporting pushing through the compromise at supersonic speed should explain the relation to the coming patent regulation in some more detail.
A transcript of Eben Moglen's Harvard speech has been published at Groklaw. A few quotes:
"Patent law in the 21st century is a collection of evil nuisances."
"Patents are about politics. I thought that the pharmaceuticals companies did my side a favor by buying us 12 trillion dollars in free publicity in the last half decade by teaching every literate twelve year old on earth that "intellectual property" means people dying of preventable diseases because the drugs are too expensive because patents cover them."
"Our society is a much less aware one on that subject. For those of us who live here, the task of getting to the standard set for us by our colleagues in Europe this past summer is the first and most important challenge. We must make our Congressmen understand that patent law is not an administrative law subject to be decided in the PTO, but a political subject to be decided by our legislators. We may have to restore actual democracy to the House of Representatives in the United States in order to make that possible, and there are many other aspects to the challenge involved."
Good luck with the task of restoring actual democracy. That seems to be rather difficult.
Slashdot discussion here.
Update: Rainer Langenhan points to this Greplaw story on Moglen's presentation.
David Berlind has published an article in ZDNet about "open source insurance".
This idea wants to offer insurance against any form of intellectual property claim against open source software users for a premium of 3 percent of the annual coverage. Daniel Egger is the founder of "Open Source Risk Management" and is looking for the backing of large insurance underwriters.
As I have blogged before here, the EU Commission is also looking into the possibility of this kind of insurance. There is a 2003 study on "The possible introduction of an insurance against costs for litigation in patent cases" by CJA Consultants Ltd, European Policy Advisers, Britain and Brussels at the Commission website on the Community Patent.
That study was limited to insurances covering patent litigation, while the project above would cover all kind of intellectual property claims. The study says that patent litigation insurance has not seen much success until now. Demand is low, and premium prices are high.
I have no idea if this kind of insurance will be a viable solution to the intellectual property problems facing open source software. Eggert assumes that patent claims will be next after the SCO case. "The money to be made is phenomenal".
Assuming that he is right and that his insurance will provide the solution to the problem. That would convert the patent litigation costs for open source software to the model of car accidents litigation. Usually an insurance company pays for those. The cost of that risk for drivers is the cost of insurance.
And then one could easily sum up the total cost of software patents for open source projects by adding up all the insurance premiums.
That is not possible right now. However, Egger is probably right. It would be a big surprise if we won't see many claims against open source projects based on software patents in the future.
And if insurance won't work as a countermeasure, other strategies need to be discussed. Just as the basic idea of insurance and just as the basic idea of open source software to begin with, these strategies should be based on sharing the burden of dealing with the threat between many interested parties.
Slashdot discussion here.
I have blogged about this before here (link to NYT article) and here (discussion of Article 21 of the original proposal).
My criticism of Article 21 is moot now, since that Article has been dropped altogether in the latest compromise of February 16 2004, which is on the web at this FFII UK page.
FFII still has some reservations, which are discussed in this Slashdot story. They want:
1. Disputes about patents and trade secrets/confidential information taken out of the scope of the directive altogether. The draconian measures being discussed are completely inappropriate for such complex disputes.
2. The Directive should only apply where there is intent to infringe for commercial gain on a commercial scale. It should not apply unless there is good evidence of recklessness or a deliberate knowing intention to infringe.
3. Articles 7 to 10 should even then only apply in exceptional cases. It should be clearly stated in the Directive that they are not intended to become automatic standard procedure in all IP disputes.
I am pleased to see Article 21 deleted from the last draft, as well as the fact that Article 17 on damages has dropped the original idea of awarding the double amount of usual royalties, now reducing that to "at least the amount of royalties".
I also support all above FFII proposals for reducing the damage to be expected from this harmful and unnecessary legislation project.
The strongest reason against this special treatment of IP rightholders is from Ross Anderson.
"Justice: by insisting that Member States make things easier for plaintiffs in copyright and trademark cases, the Directive will distort the system of justice itself. Why should we make it specially easy for McDonalds to sue businessmen in Scotland for being called McDonald or even having the prefix `Mc' in their names, when someone suing McDonalds for compensation after their child dies of food poisoning has to jump traditional hurdles? Introducing special procedural privileges for certain classes of litigant is a drastic step, for which no intellectual justification has been offered."
Obviously there is a problem with equality pointed out by Anderson's example of McDonalds litigation.
But there is the added problem of consistency. If we get special rules for civil procedure and calculation of damages only for IP related disputes, all Member States will need two different sets of procedural law, leading to unnecessary complications.
Harmonizing the law on damages calculation and civil procedure in the EU might be a worthy project. This should however not be rushed and debated behind closed doors. And it should take into account the large amount of work on contract law to avoid inconsistencies, and certainly not be limited to the special field of intellectual property.
See also this IPJustice statement of February 11, 2004. There is also a written declaration of the European Parliament calling for "strong, harmonised civil sanctions for any intellectual property infringement and tough criminal penalties for commercial scale counterfeiting", and some more links from Axel H. Horns.
Joe Barr published a critical article on the World Summit on Information Society, saying that it is doomed to failure because the American delegation is more interested in the profits of software companies than in really spreading information technology with cheaper open source software.
He may be right. I don't expect the WSIS to go anywhere as well.
But he also reports that open source proponents have not been paying any attention to the national WSIS preperation phase, leaving all the lobbying to outfits like the International AntiCounterfeitign Coalition and the Business Software Alliance. The American position for the WSIS seems to have been strongly influenced by that fact.
Slashdot discussion on this article here.
Margaret Marks has good news: The CELEX database will be available over the Internet free of charge from 1 July 2004 on. See also my earlier post about CELEX and Eur-Lex.
Link credit: Rainer Langenhan.
I have received over 500 comment spams over the last day. I have deleted almost all of them, but I will leave only one set of 30+ spam comments undeleted for a few days, so people can get a look at the result of the obviously automated attack on this blog.
(Update: I have removed the spam comments now.)
Existing solutions to this problem seem to focus on blacklisting or denying the spammers Google ranking points by redirecting, as well as some countermeasures against automated spamming.
All of the above at the best stop the spammers from getting any illicit advantage from their evil activity. I think that is not enough. Since this is clearly an abuse of the Google ranking system, I think Google should delete all offending domains permanently from their database in retaliation.
Once Google starts doing this, comment spammers might want to think twice about their obnoxious acts. The risk of loosing everything might turn out to be an effective deterrent, which is not available for conventional e-mail spam.
Does anyone out there know if Google would be interested in tackling this form of abuse or who would be an appropriate person there to ask about their opinion?
The Japanese Supreme Court has decided a computer game case: Defendant created a computer game for the Sony Playstation that simulated horse racing. In that game they used the name of a racing horse owned by plaintiff, without asking for a license. A short report on the case (in Japanese) is here (link found at Trembling Leaf).
Plaintiff asked for damages, invoking the right of publicity for his horse. He lost. A horse is not a person, but an object. And there is no publicity right for objects, only for persons.
Horse owners might want to consider to register a trademark for the name of a successful horse to protect the potential income from the fame of such a name in the future.
From IPKat:
Is there copyright in the totality of the solutions to clues that a person writes on a crossword grid when he's solving a crossword puzzle (i) correctly and (ii) incorrectly -- and why?
The riddle doesn't specify which country's copyright law should apply, so I start out with the Berne Convention, Article 2, Paragraph 1:
1) The expression "literary and artistic works" shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.
Crossword puzzles might qualify as "books, pamphlets and other writings". The fact that they are interlaced in two dimensions does not remove their quality as "production in the literary domain". If anything, it rather enhances the amount of effort needed to write them, as compared with a simple list of clues and answers that might be included in a reference book for preparing for some university admission test.
On the other hand, Paragraph 8 of Article 2 states:
(8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.
That is a problem when looking at a single set of clue and answer typically found in crossword puzzles, since they often just ask for "miscellaneous facts". However, the question is not about the protection of a single such set, but rather about the "totality of the solutions". So the exception in Paragraph 8 would not seem to stop copyright protection for crossword puzzle solutions.
Now lets turn to the two cases in the question.
The first case is that a person writes the correct answer on the grid. In that case, there does not seem to be any room for an affirmative answer. Where is the creative work?
It would be premature, however, to conclude that there is no copyright protection in that case. There is. The author of the puzzle has copyright on the totality of clues and on the totality of answers in the first place. That copyright is not removed by the act of someone filling in the grid. And the question was not if the person filling in acquired a copyright, but if there is any copyright at all.
Now to the second case, that of the wrong answer.
In that case one could discuss a copyright of the person who thought of the wrong answer and filled it in.
Assume for a moment that one might recognize that kind of copyright. If people call for copyright protection on a rifle design, clearly there are extremists out there who would have no doubt whatsoever that wrong answers deserve copyright protection.
That wrong answer however would seem to be a derivative work based on the original crossword puzzle. So the author of the wrong answer would seem to need some kind of license from the author of the crossword puzzle, for example a Creative Commons license. See Article 12 of the Berne Convention:
Authors of literary or artistic works shall enjoy the exclusive right of authorizing adaptations, arrangements and other alterations of their works.
Assuming the original author has authorized the adaptation of writing a wrong answer, several questions remain.
The obvious question is if wrong answers deserve any copyright protection in the first place.
The copyright system gives authors a monopoly right to compensate them for the effort they have put into creating the work. What kind of effort is needed to write a wrong answer?
Actually, that might be quite a lot of effort, under one condition. That is, that the "wrong" answer still fits the original clue and the original grid. Under that condition, it is actually more difficult to come up with a "totality of wrong answers" than to just find the "correct" solution. I assume that this is close to impossible for just about any crossword puzzle, just as it is just about impossible to come up with more than one valid decryption for any random encrypted text longer than the unicity distance.
Therefore, to motivate people to invest a lot of time and energy in coming up with wrong answers, we might need copyright protection for them.
On the other hand, anyone engaging in that kind of activity is probably not motivated by profit anyway.
And the other question is how exactly infringements on the copyright on wrong answers are supposed to be dealt with in court. There is no market for wrong crossword puzzle answers, at least no market I am aware of. So any infringement would generate no profit making it worth talking to a lawyer and paying $500 for the act of saying hello.
That in turn means that even if we follow the extremist position that there is a copyright in wrong answers, that copyright won't have much of any practical relevance.
Cory Doctorow has published the text of a recent speech on E-books. The main point is a comparison between file sharing and earlier technological changes, most of which were at least as disruptive as the Internet.
Update: Slashdot discussion here.
has had one of their patents revoked by the European Patent Office, triggering a 17 percent slide in their stock.
Link found at MPI.
This BBC article as well as this earlier one hints at the possibility that people might assert a "copyright" in the design of the famous Kalashnikov AK-47 rifle.
That is somewhat confusing. How would the design of a rifle qualify as a "literary and artistic work"?
Link found at MPI.
from the EFF: The case against Diebold seeking compensation for abuse of the copyright system is scheduled for next Monday, Februay 9th.
Link found at MPI.
The EU Commission has proposed establishing jurisdiction for the ECJ over Community patents and a new patent court.
Both proposals however make no sense without a working Community patent. And as I have commented about a year ago, I'll believe it when I see the Community patent legislation in the Official Journal, in contrast to seeing announcement number 183792 on the political will to finalize said legislation.
Link found at MPI.
Update: IPKat comments here. They are rather sceptical of the proposed EU patent system.
FFII reports on a working paper circulated in the EU Council of Ministers that proposes to overrule the vote in Parliament last year.
Again I would like to point to the call for action here.
Any proposal the Council might come up with in their secret deliberations behind closed doors won't be voted on before the Parliament elections scheduled this year.
Update: See also this IHT article for some background. (Via MPI links).
I have posted an article "DRM and Data Protection" here.
I discuss anonymous use of the Internet, trusted computing and the proposal for a Directive on the enforcement of intellectual property rights.
In that paper, I am strongly opposed to the idea that all Internet users should be watched all the time. In contrast, I think that the data protection problems associated with trusted computing may well be worked out, and I don't share privacy concerns about the enforcement directive proposal.
Larry Lessig links on his blog today to a case about video surveillance in cyber cafes. That is exactly about the question if anonymous Internet access should be guaranteed or prohibited. There is a heated discussion about this point in Europe right now, which I address in the paper.