Now articles critical of a US patent appear in the Rolling Stone, of all places. Link found at Slashdot.
Apparently, in America it is worthy of a patent if someone thinks of recording concerts and selling the recordings to exactly the people attending by producing them in time while the fans are still at the venue.
This is of course just another obvious application of existing recording technology.
But whether that particular patent should have been issued or not is not my point here. The point is that the patent system just made every music fan prevented from buying a recording of their favorite band rather sceptical of said system.
Way to go. If you want to abolish patents by nuking support for it in the general population, that is, which is not my agenda (I'm agnostic on the point).
Once you lost the Rolling Stone, things will go downward rapidly.
Andreas Bovens is now in Tokyo studying Japanese copyright law. He visited me at Aoyama Gakuin yesterday and kindly gave a short blogging introduction to students in my postgraduate seminar.
We also discussed some copyright issues. One of them was the question if records of chess (or Go) games are or should be protected by copyright. I have been looking at that problem recently.
One interesting aspect is the fact that there is no such copyright protection in China or Korea. That, however, neither limits the popularity of the game in those countries, nor does it restrict the income of Chinese and Korean professional Go players, who obviously can find ways to get paid very well without copyright protection.
That seems to be some empiric evidence against the ex ante justification of copyright that without a copyright system there is no sufficient incentive to create.
On the other hand, if you have a copyright system at all, I really don't see any reason to discriminate against the creative effort of chess or Go players. There is much more thought expressed in Go games than in most writings or photographs.
And the copyright status of game records might be interesting for other games as well. For example, recently Slashdot pointed to an article saying that the gross Ebay value of all items in the EverQuest game exceeds the GNP of India.
What exactly is someone selling when auctioning off a "level 50 powerful warrior" for $500? Does the seller have any copyright in the result of several thousand hours of gaming effort?
And does he need that copyright as an incentive to play?
These seem to be interesting questions, all related to the simple problem if there is a copyright for a chess or Go game record.
Version 2.0 licenses were launched officially.
As announced in January and discussed by me here, licensors who want to declare some kind of warranty now must decide to offer the warranty on top of the CC license. The default has changed.
I also note that both issues I have raised in my comment on the January draft seem to have been resolved.
Again, I would like to thank Creative Commons for reconsidering on the warranty issue.
Mark A. Lemley has posted a paper "Ex Ante Versus Ex Post Justifications for Intellectual Property" (Link found at BoingBoing).
Ex post justifications discussed - and dismissed - by Lemley are:
1. Intellectual property is necessary to assure investment in existing ideas.
2. Without intellectual property, some ideas would be overused.
I agree that it is important to understand the difference between ex ante and ex post justifications. And I also agree with most of the critical evaluation of the above two positions.
On the other hand, this might make it difficult to find any justification for trademark law.
Lemley writes (in footnote 52) that in contrast to technology or creative works no incentives are needed to create new trademarks, since that is so easy to do.
If that is true, what justification remains for trademark law?
In my view, in the case of trademark law it is indeed easy to come up with some name. The difficult part is building any value for that brand. That requires effort, all of which comes after the creation of the trademark.
Therefore, any justification for trademark law necessarily seems to be ex post. That in turn means that if you don't want to abolish trademark law there must be some kind of acceptable ex post justification.
I would also like to suggest the term "success story of the commons" as the opposite to "tragedy of the commons" in place of "comedy of the commons" used on page 15 in the paper.
What I reported as the good news that the German government would oppose the Irish proposal on a software patent directive here turned out to be wrong.
Actually, according to the FFII report here, the German government has done exactly the opposite. They have worked to weaken the opposition to this proposal by paying some meaningless lip service to our side, and then voting for it, leaving the proposal with a slim majority in Council, if one counts Denmark's votes (which were not really declared in any way).
That doesn't mean the proposal is ready for publishing in the Official Journal. It does seem to be rather far away from what Parliament thought of the issue. Barring a major shift in Parliament's opinion it would seem to be difficult to have it pass there as well.
On the other hand, while the opposition to the Irish proposal barely failed to block it, there seems to have been no chance for a majority in Council just approving the Parliament's text.
That probably leaves Council and Parliament blocking each other. Of course, the new Parliament might change its mind and pass this proposal.
It would seem to be fair to expect some major lobbying efforts by both sides in the next round in Parliament.
Ryosuke Kataoka, a student in my seminar at Aoyama Gakuin University, points to this interview with Larry Lessig by Asahi.com (in Japanese) on his Wiki page.
Most of the interview covered ground well known to anybody paying attention to Internet copyright, especially about the situation in America. However, the last question was: Why is copyright important? There are other problems like privacy and security associated with the Internet. Why should copyright get so much attention?
Lessig's answer was in line with what he said in the interview about the reason for writing "Free Culture". He said copyright is important because so few people are interested in it. Therefore, there is a need to raise awareness for these issues and prepare the ground for a more balanced copyright system.
Now, that seems to be a somewhat paradox statement. Usually, important questions would be those that everybody cares about, as opposed to those only three or maybe five people pay attention to. Therefore, under conventional logic, the less people are interested, the less important a topic should be.
Also, I somewhat doubt that there are not much people interested in copyright. Lessig gave a number of 180.000 downloads for "Free Culture" in the interview.
Of course, it is still perfectly possible to say that even with getting some more attention to this area, there is still much more work to be done to increase the number of people who are interested in the question and understand the problems associated with it. That makes sense, and it is probably Lessig's position.
Anyway, the number of people interested really doesn't say very much about how important an area is (except if you are talking about sales figures for CD or movie releases). So there might be another, better answer to the question why copyright is important when talking about the Internet.
The short answer, in my opinion: Technological changes require discussion of the copyright system. The same answer, somewhat longer, is recital 5 of the 2001 EU copyright Directive 29/2001:
(5) Technological development has multiplied and diversified the vectors for creation, production and exploitation. While no new concepts for the protection of intellectual property are needed, the current law on copyright and related rights should be adapted and supplemented to respond adequately to economic realities such as new forms of exploitation.
And as to the other problems the interview question mentioned: Actually, the discussion of Internet copyright needs to pay attention to DRM and trusted computing, which in turn raise important privacy and security issues.
I might have been wrong in expecting America to continue ignoring WTO obligations on their illegal "Foreign Sales Corporation" subsidy scheme.
Now, after the EU has enacted sanctions, the American Senate has actually adopted a bill that would repeal the illegal subsidies.
The EU welcomes this, though of course it remains to be seen if the bill actually gets passed by the House of Representatives and signed by the President.
In case you wonder what that means, it's an abbreviation for "Community Patent", which makes perfect sense to everyone and is in no need whatsoever of cutting four syllables. The EU Commission however feels differently and uses this kind of confusing language in their new FAQ on their "dead" legislation project.
The Commission wants now that translations are required, except when a Member State renounces.
Personally, I don't approve of that idea. All languages of all Member States are official languages of the EU. While it might be acceptable to reduce translation requirements for a brief transitional period if there is a shortage of qualified translators, as in the case of Malta addressed in Council Regulation 930/2004 of May 1st, I think it is reckless and discriminatory to expect citizens of minority language Member States to pay for translation work themselves, just to be able to read patents they are supposed to obey.
If the patent holder doesn't want to pay for translation costs, he shouldn't get a patent in the country in question. Member States have no business waiving this fundamental requirement and exposing their citizens to translation costs that come on top of the considerable financial burdens associated with patent searches in the first place.
There is no other case where a citizen is required to obey some text as law that is not available in his own language. In Germany, the last time we had legal texts in foreign languages was in the 19th century (Latin, and French for some parts of the country), which was a strong motive for enacting the present German Civil Law, the BGB. From the 20th century on, German citizens finally were able to read their law in their own language.
Waiving that right for patents leads right back into the 19th century. I don't approve of that idea, even if it affects only smaller Member States like Malta. Creating a group of second-class citizens and discriminating against them should be resisted strongly.
This conference in Berlin on June 10-12 looks rather interesting. I won't be able to come, but I hope to be able to catch a few of the thougts expressed there over the Internet. There is a one-day workshop organized by Ian Brown of the London Foundation for Information Policy Research on "Where next for copyright in Europe?".
FFII reports that the German government declared opposition to the proposal now discussed in the EU Council which would reverse most of the restrictions on software patents Parliament voted for in September last year.
Update: Groklaw coverage here.
Slashdot has the story: The Japanese police has arrested a scientist for the crime of developing a computer program called Winny. Joi Ito comments that this "is an absolute disgrace to Japan" and "Japan is yet again leading the world in stupid Internet policing."
This case is sure to generate a lot of controversy. The debate won't end anytime soon. I have a few preliminary comments, but will probably have occasion to come back to the question later.
From what I have heard, the scientist in question designed his program with the express purpose of facilitating copyright violations by building strong privacy protection. He also said that he accepts the charges since in his opinion his activity was illegal.
He might be wrong. But the fact that a clearly intelligent scientist at the leading Japanese university chose to put a lot of effort into this programming project even when convinced that it was illegal to do so tells us one thing: There are people out there who will resort to civil disobedience to fight against copyright extremism.
Arresting scientists for development work obviously has a chilling effect. One comment on slashdot is from a post-graduate student who is doing research work on P2P networks. If he lived in Japan, his career in that field would carry a new strong risk now. Therefore it is important to find out what exactly is legal and what exactly is illegal in development work.
For example, no one even thought of indicting Akio Morita, the founder of Sony, for work on the development of tape recorders, even though that clearly is a device that facilitates copyright violation. It was exactly the other way round: One of the early large orders came from the Japanese Supreme Court (see Morita/Saito, Made in Japan, Tokio 1986, page 51).
So clearly only developing some technology that enables copyright violation can't be enough.
If that would be different, all development on the Internet as such might become illegal. FTP has been around since 1971. Of course, users can violate copyrights by FTP. What exactly makes Winny different?
If there is no clear answer to this question, this kind of arrest is extremely dangerous. It might lead to a big setback for the development of the information society in Japan.
here. This is what he has to say about software patents:
"I think many people in the proprietary world will take a cue from SCO and that we are approaching a very bad time regarding software patents. We have an overload of improperly issued, invalid, non-invention software patents that will be prosecuted aggressively against people who can't really afford to defend themselves.
The problem is worst for the open source developer, but it's also a problem for small and medium-sized businesses. If the open source developer gets sued, he probably can't afford to be in court very long. He'll probably have to settle. In the one example I have of this so far, the developers signed their copyrights over to the plaintiff and signed a covenant that said they wouldn't develop similar software."
This is a realistic view. When discussing patents, the law and strategy of civil procedure matters a lot. It doesn't help anyone to be able to win defending a patent lawsuit if that is so expensive that settling is cheaper.
The latest poll has opposition to the illegal war in America at an "all time high" of 55 percent, which is more than would vote for either Bush or Kerry right now.
However, all those opposed to the war are left without a candidate. Bush obviously chose to invade Iraq for no particular reason. Kerry voted for the war and even now says he wants more troops in Iraq.
So what are those 55 percent opposed to the war to do in the presidential election? They have no acceptable candidate.
This is clearly a failure of what passes for democracy in the United States of America to achieve democratic representation of a large part of the electorate.
I wonder if Nader could win with 55 percent of the vote.
After another experience with a large-scale robot attack by a comment spammer I have finally lost all patience. As of today, I am disabling the comment function of this blog permanently. I have removed the appropriate script from my server, so clicking the "comments" button on past posts will result in an 404 (not found) error from now on. Past comments already on the blog will still be readable when displaying single entries. Thanks again to everyone who cared to give a real comment, as opposed to the many spammer comments.
Congratulations to the spammer who has attacked my blog. You have succeeded in breaking completely this functionality by your abuse. Now please take your Google rank enlargement business elsewhere.
Richard Stallman points to this article about a "Internet Real Name Law" recently enacted in Korea. From the article:
The Internet Real Name Law, which was passed at the plenary session of Parliament on March 9, 2004, requires Internet media and press websites to verify all names and identification numbers of authors who post messages on bulletin boards or chat rooms regarding elections. If not complied with, a penalty of 10 million won can be incurred. The Section 5, Part 8 of Election law, defines the Internet press group as whoever reports or provides articles which are gathered, edited and written for the purpose of reporting, commenting and disseminating the public opinion regarding political, economical, social, cultural and current affairs through the Internet, or who manages and controls websites where such articles are displayed, or who manages and controls websites which serve a similar press group purpose.
If this silly law is allowed to stand, for all practical purposes it will be illegal to run a BBS or any other interactive website (like a Wiki or a Blog with comments open) in Korea. Fortunately, there is a strong backlash. People are angry and declare publicly that they don't intend to obey this law.
Never take Internet freedom for granted. A lot of people are working hard to turn the Internet into one big instrument of surveillance and suppression.
Dan Gillmor and Donna Wentworth are pointing to an article by Sonia K. Katyal on "The New Surveillance".
I have read the paper. Here are a few comments.
I agree with Katyal that privacy concerns are important in the debate about copyright enforcement, see my paper on "DRM and data protection".
The concept of "Panopticism" discussed on pages 317 to 320 is especially interesting. Katyal explains the origin of the concept in the design of prisons, where guards are placed in a central tower to enable them to watch all prisoners at all time.
That concept is useful when discussing the recent proposal for a EU Framework Decision with which the enemies of freedom try to promote their vision of a total surveillance state: They want to build central towers from which they can watch all citizens at all time. That might be appropriate when designing a prison, but not when designing a free society. See also this Register article by Lucy Sheriff on that topic.
On pages 376 to 379, Katyal discusses the "Privacy Protection Act (PPA)", which seems to have been passed by Congress back in 1980 when the U.S. was a free country.
If that legislation applies without changes for example to the authors of blogs, it gives some rather strong privacy guarantees.
I could not see any discussion on the questions of trusted computing or of data retention by Internet service providers in the paper. Both are rather important when discussing Internet copyright surveillance.
Bob Sullivan has an interesting article on business and Internet patents up at MSNBC.
Apparently, in 1999 some enterprising inventor has sued the American Red Cross for accepting donations over their web page.
The article then quotes a patent lawyer who "finds this whole kind of thing disturbing" because it "increases people's distrust and frustration with the legal system".
He's right. I think it's fair to say that suing the Red Cross for accepting donations won't increase popular support for the patent system.
It also won't help if you hear that somebody claims to own the idea of Internet commerce, even if that claim won't hold in court. The ability to pay a lot of money and win defending a patent law suit is very different from not being bothered with ridiculous patent claims in the first place.
Both articles above found at Slashdot.
I got the next wave of automated comment spam to this blog, again over 300 unrelated comments aimed at enlarging the Google rank of some.fraudulent.internet.money.grabbing.scheme.com or sites of similar great importance.
As such, this is business as usual. One of the risks of leaving comments open is having to deal with this kind of abuse.
However, this time the spam robot actually wrote one of his enlightening comments right into the discussion of the earlier robot attack.
That does it. I'm striking back this time.
Here's what I wrote to the Google Spam Result Report Form:
"Please have a look at
http://k.lenz.name/LB/archives/000790.html#000790There you will find a robot writing a spam comment to my blog on an entry discussing comment spam.
I think this remarkable level of abuse calls for a significant delargement in the Google rank of the offending domain (www.pills.pexxx-enlarge.com). (The domain name is slightly edited here, not however in the report to Google).
Please, please, do consider setting their rank permanently to 0.003. And if you act in any way on this report, I would really appreciate a feedback in the form of a comment to my above blog post."
Let's see what happens.