Code is not Property: Official!

14 Apr 2012 by Dave.

Wired reports that, three days ago,  the US 2nd Circuit Court of Appeal has declared that code is not property and cannot therefore be stolen; there is no intent to deprive the owner of the object’s use. They also ruled that the perpetrator, there is no doubt that the code was removed from Goldman Sachs network, could not be prosecuted under the US Economic Espionage Act since the code in question was not used in commerce. I don’t actually know what the code did, but we can be sure that it was used in commerce, or it was a regulatory compliance program. If it didn’t have one of these two purposes, Goldman Sachs wouldn’t be doing it, and wouldn’t have wanted to keep it secret.

Does this mean that only traded software can be the object of the espionage act? If so I am not sure this is where we want to be.

Part of Goldman Sachs’ problem is that they wanted to keep the code secret and there are many reasons to want to do so. However patent and copyright protection require the intellectual property owner to publish their ideas, or the expression of their ideas. Another part of the problem is that people wanted to see Aleynikov go to prison and breach of employee confidentiality wasn’t sufficient to get him there.

As techdirt.com reports in their article,

Still, the overall ruling here is good, though it could have been more complete.

I wonder if there will be further appeals, but it’s an important stake in the ground. Copyright infringement is not theft.

This was also covered at engadget.com.

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Only a musician sees the future

20 Mar 2012 by Dave.

The queue to get into Parliament last week was a bit long, so long I missed the first presentation at Pictfor’s Consumer’s and Creators in the 21^st Century Copyright World, although I did take some good pictures. Saskia Wetzel was the first person on, and it’s a shame I missed it; she was the only speaker designated as a consumer representative.

Mike Holderness spoke on behalf of writers , and  Gwen Thomas spoke on behalf of photographers. They both want legally mandated “Moral Rights”, and they both oppose the ageing and maturity of “Orphan Works”. See me here on Orphan works. Interestingly, Holderness attacked the internet industry for illegally creating a comprehensive archive without permission and the photographers also blame hackers, and maybe corporate misbehaviour for the destruction of ownership metadata, and seem to be demanding DRM on photographic meta data. (If you look at my article, or its quoted sources, you’ll see that Lessig amongst others proposes neutral registrars as part of the answer to this issue. I suspect its not acceptable because the proponents want squatters rights, but I have come to the conclusion that the basic problem of orphan works is copyright longevity.)

To me the most interesting speech was by @SimonIndelicate. He made a great speech, passionately claiming ownership of his music, yet recognising all the inspirations and sources. I summarise the speech as follows,

You cannot be a creator alone, all creators are also consumers.

I suggest the conclusion is that you need a weaker copyright, his/their music is part original creation and part inspired work. You can’t write a usable copyright law that works only for creators. I also suggest that this is a replay of Benkler’s argument;  in the information/digital economy, information or digital content is both an input and an output. Wealth creation is based on the right/ability to create derived works.

During the Q&A, Simon asked rhetorically,

“Does (the current) copyright (settlement) encourage the creation of more culture?”

His tone of voice made it clear he though the answer was “No”, and I agree with him. Longevity is too long, strictness enforces a non-negotiable tax, lack of formal notice leads to uncertainty. I also reckon that unless Copyright Law has a public benefit other than the personal revenues of creators and monopolists, we have a right to abolish it. It’s a gift, not a right!

In his summing up, he was heckled, and asked why people should access the products of creator’s labour without paying, to which he replied,

“why do you think you should be able to charge more than the market rate?”

Well said! He had articulated the massive explosion in music supply, and let’s face it the supply of photographic images is even more numerous. This stuff is no longer scarce.

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The music piece Simon was talking about is available to listen to here on youtube, I’d love a video performance; see how that works… I hear the politics, I listen to the music, the people make themselves real and I want to see the performance.

Posted in economics, culture, copyright, news, digital economy, uk, politics, internet, law, technology | No Comments »

The internet is a UK success

19 Mar 2012 by Dave.

I was going to polish my notes from the #Pictor meeting last week, which has published its own precis of events, but the Wall Street Journal and the BBC are both carrying a story sourced from Boston Consulting that the UK’s internet industry is now over 8% of GDP, and grew at over 10% during the period of the study. This is  while the UK GDP grew by 0.7% over the last year and there remain fears of a return to recession.

James Firth, at his blog, “Slightly Right of Centre”, tries to evaluate the contribution of the Internet industry vs. the “creative” industry and makes the point that the Digital Economy Act was passed to help and support a very important wealth creator in our economy. It’s a shame, well, more truthfully a point of design,  that it almost certainly discriminates against an even more important one. The figure bandied about by BIS at the time the time the act was passed was that creative industries were about 7% of GDP; the internet has overtaken it.

No matter how one does the sums, maybe its time to back a winner!

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The chilling effect of global copyright enforcement

02 Feb 2012 by Dave.

And on to the EU’s attempt to implement strong copyright enforcement. I’ll return to the UK in the next week or so, but the European Commission signed the Anti-Counterfeiting Trade Agreement (ACTA) a couple of days ago. This proposed trade treaty has been negotiated in secret amongst a group of governments from the developed world. The US agenda was to strengthen international enforcement of intellectual property laws, and the original European agenda was similar, but orientated more around the protection of a number of geographic brands, such as champagne or cheddar. The Open Rights Group talks, on their blog, about the secrecy and how we have came to this point.

La Quadrature Du Net, a french based digtal liberty campaign, argue in their blog posting, that ACTA will have a chilling effect on ISP and Search providers forcing them to police their users and inhibit their business. LQDN say,

“By putting legal and monetary pressure on Internet service providers (in a most subtler way than in previous versions of the text), ACTA will give the music and movie industries a weapon to force them to police their networks and users themselves. Such a private police and justice of the Net is incompatible with democratic imperatives and represent a real threat for fundamental freedoms.”

It also proposes increasing criminal sanctions for commercial scale infringement. This is definitely not the same as commercial activity and it also reinserts the criminalisation on aiding and abetting which industrial content have been trying to criminalise for the last five years, and seems to weaken all the national copyright exclusions. The treaty has self maintenance clauses, which have no citizenship accountability. It’s been negotiated and written by bureaucrats and lobbyists and having got (some of) the law they want they don’t want any pesky elected politicians looking to change and update it; they see that as their prerogative.

La Quadrature Du Net have published a call to arms for Europe’s citizens to campaign to have the treaty rejected  by the European Parliament. (They also have a campaign Wiki here.)

To further understand what’s happening, check out this article, entitled “Why the EU will repent ACTA at their leisure” published on a blog called Br0ken Teleph0n3, which was pointed out to me by Glyn Moody. In it, the author, Ian Grant, makes some startling predictions illustrating the weakness of the treaty for Europe’s citizens.

• There has been no parliamentary scrutiny to determine if the treaty conflicts with the current state of European law. No-one knows if it conflicts or not. (See my, or others, review of the last UK judgement determining if strong copyright enforcement conflicted with EU law or not, it shows there’s a lot of law to contradict.)
• The European Parliament’s technical assessment recommends postponing the signing of ACTA, that there is little benefit to the EU’s citizens. The rejection of this recommendation has led to the resignation of the EU Parliament’s Rapporteur. Interestingly, five EU member states have opted out of the signing process. (How’s that work?) For the record, they’re Germany, the Netherlands, Estonia, Cyprus and Slovakia.
• It seems doubtful that the US Senate will be asked to, or consent to ratification.
• India, China and Brazil have not been asked to, and are unlikely to agree to the treaty.
• As discussed above, the penalties for copyright infringement are likely to be increased. There is no embedding of copyright exclusions, for research, education or personal use in the treaty.

We seem to be on the path to agree a treaty in the economic interests of US entertainment and industrial software companies, where Europe’s competitors will not, and we give up many fundamental freedoms for the privildge.

I shall be writing to my MEPs this evening. I suggest you look at some of these links and think about this as well.

Posted in culture, copyright, news, acta, digital economy, uk, politics, business, internet, europe, technology | No Comments »

And for our next trick, we’ll make the Pirate Bay disappear

05 Nov 2011 by Dave.

The Guardian ran a story yesterday which states that a coalition of music publishing corporations have threatened BT with court action to get them to “block” the Pirate Bay since they feel they have a legal precedent in the newzbin2 judgements.

They’re wrong!

A key part of the judgement is that newzbin2 charge fees under terms for the right to use their NZB program, which permits the assembly of usenet posts into usable content. This is deemed by the court to be an inducement to infringe copyright, despite the fact that newzbin2 do not know if their program is used to assemble copyrighted material without permission and host no content themselves.  I discuss this in passing in my blog article, “Censoring the Internet”, published earlier this year.

The Pirate Bay is a linking site. It doesn’t charge, it has no commercial relationship with its users i.e. those individuals who may infringe copyright.

Under UK & EU law, link sites are legal.

In order to get an injunction, the copyright holders, and their agents will need to prove that the Pirate Bay induces copyright infringement by actions other than publishing the links, and that they i.e. the copyright holders suffer financial loss. In the newzbin2 case, newzbin2’s fees are a demonstrable loss to the copyright holders. Pirate Bay don’t charge pirates, they are a search engine, they host no content and can claim a common carrier defence.

The newzbin2 judgements are not a precedent for the Pirate Bay.

James Firth, on his digital rights blog, also comments on this insidious action and has previously argued that UK civil courts do not have easy access to public interest arguments and there is little doubt that this is needed here.

In my article More on the Newzbin2 affair, I begin to explore the equity in allowing Industrial Content to victimize BT and its customers. At the moment the financial cost is quite low, but free speech is about access to ideas as well as the right to promulgate them. As a BT customer I and millions of others are now disadvantaged because a court has permitted copyright holders to discriminate against us. (It’s only BT customers who can’t access newzbin2.)

In the second judgement, the court stated that there was no evidence that copyright holders would notify BT of sites that were not the subject of the injunction. I argued that the behaviour of the bulk of corporate copyright holders has never been to underestimate web publishers and users complicity in infringement, and never to underestimate their financial loss, despite never having proved it, at least not in UK courts.  This letter to BT is yet more proof that except under financial penalty or some other court supervision, they will and always have overstated their rights.

Basically they assume that the only alternative to piracy is payment of monopoly prices, and that’s not true, and they’ve made up the figures as to how much they lose. If a pirate would not buy the content, then the copyright holders have not lost out financially and UK law requires them to prove loss.

This is bullying. As a BT customer I’d prefer to fight them. So if you get to read this, Ian Livingston, you know what I think!

As a postscript, it says something that a group of people can make one feel sorry for or even supportive of BT.

Posted in copyright, newzbin2, news, digital economy, uk, internet, law, politics | No Comments »

Three Wise Men, caption competition

04 Nov 2011 by Dave.

The London Evening Standard ran this picture, with some rubbish about how Cameron brought his intellectual friend along to get Obama to lean on Merkel and Sarkozy to rescue the Euro (and lets face it, the Pound). Perhaps you can do better…

Please comment…

Posted in news, euro, uk, politics, silly | No Comments »