Comments on Life and Law, Free Software, Open Source and Intellectual Monopolies
Patent Suit over Use of Linux <- hello PlanetLA
Todd Bishop is reporting that Microsoft is suing TomTom, and that part of the suit relates to their use of Linux (Linux is mentioned in one of the documents referred to, but on a quick review I can’t find anywhere it calls out Linux as infringing per se).
I also can’t find any press release announcing this, so it would be revealing to know how this was seeded into the media.
Malcolm Tredinnick comments on comments [sic] on the Freakonomics blog, to the effect that surfers are upset that an open source style release of content is a form of exploitation of authors. Malcolm doesn’t seem to have comments turned on, so I’ve got to counter-blog here.
My view on all of this is that “creators” don’t really have much understanding of how money flows through the system, nor how they typically have no power compared to the distributors of their creations. Each of them wilfully believes the lie that they will make a mint from their creation and therefore willing subsidises the distributors. I’ve mentioned, with amazement, that “authors’ groups” continue to press for the expansion of copyright even though, by their own admission, copyright is a complete failure for those same people. In the freakonomics example, the interns would be swapping guaranteed obscurity for the potential for recognition – a swap which is not obviously bad, and is probably good, for them.
I believe that creators have been so captured by distributors as to be subject to a sort of Stockholm Syndrome and mindlessly parrot the party line of publishers and distributors.
I am drafting a submission for OSIA to the DBCDE consultation paper on open access to public sector information (we got an extension). I’d be interested in any (first or second hand) experiences where copyright extremism has affected open source projects. For example, do you know of any occasions where someone has chosen not to implement useful, non-infringing functionality for fear of being sued?
Anecdotal evidence is fine, but any examples that I can quote publicly would be better. (Soon! Due tomorrow)
Thanks (IA)
Brendan
Programming Python (e-?) books? (< Planet LA still can’t get my titles right)
I have been thinking about how to automate some documentation related tasks for lawyers (well, just for one lawyer in particular). The tasks are largely search and highlight within a document. I’d assumed that there’d be a wealth of search and indexing solutions which would do this, but apparently there aren’t (or I can’t decipher them). The solutions out there assume that you want to identify what document the search term is in. However, I know which document it is in, I just want to know how it is used within the document.
I’m now considering doing a customised solution in Python – a language that I know nothing about (well, except for the 6-8 hours of programming I had at the end of last week). I hate buying books on these topics because I invariably find I don’t actually use them, or use them very little. Nevertheless I’m looking at buying one or more O’Reilly Python books, particularly Programming Python. To get three books (learning, programming and cookbook) looks like it will cost about AUD$217 (inc. 2-5 business days’ shipping- roughly 33% of this is shipping). To get the same three as pdfs will cost about AU$125, and to just get Programming Python as a pdf will cost $75. Alternatively I could buy the dead tree versions from Dymocks here for… oh, about $300 (programming python = $125). (three books+ three pdfs + shipping = about $260)
Has anyone had any experience with O’Reilly pdfs? Will a 1596 page pdf be manageable? Will I end up printing the whole thing out to use it anyway? (maybe I’ll end up printing the particular sections i need when I need them?)
Update [more details here]:
I bought Programming Python Third Edition, Learning Python and Python Cookbook as ebooks (pdfs). The pdf reader interface is at times annoying, but overall they have been a good buy. Would have bought hard copies of all three, but freight was ridiculous. Have also bought pocket reference as a hard copy. Of these three I have used PP3E heaps and heaps, LP a bit, and PC never (despite looking in it regularly for hints). The pocket reference would have been better as an ebook. It doesn’t really have enough info to be useful most of the time.
MakeHuman – Amazing GPL Posing App (<- for the benefit of Planet LA which still doesn’t get my titles right)
I’ve just stumbled across MakeHuman which, if the screenshots are to be believed, is a pretty amazing posing application. They are not all that rare, but what makes it outstanding is that it is apparently licensed under the GPL (v3, v2) and MIT licences. It’s available for Linux, so I plan to download and check it out.
Executable (25MB) seems to be available as part of the OpenSuSE repository as well- and runs out of the box. A little slow to respond but otherwise impressive.
Fels and Brenchley on Australian Copyright Subsidy [<- for the benefit of PlanetLA which still hasn’t got my feed right]
Alans Fels and Fred Brenchley have a piece in the SMH on an ongoing battle by some sections of the Australian industry to prevent consumers from importing books which have been legally printed overseas – Ie: protect them from competition – subsidise them: “The scare campaign against an open market from publishers and authors is well rehearsed. The same campaign was launched by the music industry against CD imports. It was shown to be false. Ditto for books in New Zealand.”
ACTA: An Attack on Common Sense?
Brendan Scott, February 09
James Love has published some details about the current ACTA negotiations. Copyright ideologues have been (successfully) pushing for extreme legislation for several years. Each time new legislation is passed, it is only a stepping stone towards even more extreme legislation. Any reasonable person picked up from the 70s and dropped in the 00s would be stunned by how completely copyright ideology has infected the legislative process. Indeed, by germinating in international fora, it subverts the process. Copyright ideologues use international treaties to enforce or extend domestic legislation, bypassing local legislatures and then requiring them to enact the provisions. Any time anyone objects about the disparity between the ideology and reality, they are slapped down with “International Obligations”.
In this post I’d like to focus on just one aspects of the negotiations, the criminalisation of non-criminal copying. Love says:
“The U.S. and Japan have proposed that willful trademark and copyright infringement on a commercial scale be subject to criminal sanctions, including infringement that has ‘no direct or indirect motivation of financial gain.’ This will further:
‘include sentences of imprisonment as well as monetary fines sufficiently high to provide a deterrent to future acts of infringement, consistent with a policy of removing[1] the monetary incentive of the infringer'”
Criminal sanctions for copyright infringement have always been tied to infringement for the purpose of sale of the infringing article. This provides an understandable ground rule for determining what is and what is not criminal (ie “was this copy made for the purpose of sale?”). These new provisions would convert any infringing activity into a crime based (apparently) on the number of times it has occurred. Exactly what will constitute “commercial scale” is anyone’s guess. However, is it unreasonable to assume that any copies beyond what is absolutely necessary for a person’s own use, with no allowance for ordinary convenience will be liable to being classified as being of a commercial scale?[2] If you make a copy for the bedroom and a copy for the car, will you be skirting “commercial scale”?
In theory the wilfulness requirement could limit the scope of the provision. However, that depends on exactly what is read into willful. My Australian Legal Dictionary has this to say about willful:
“In criminal law, a term without fixed meaning connoting knowledge and intention to achieve some purpose… To prove an act was done wilfully requires proof of an intention to commit the act or recklessness as to the consequences of an intentional act“
And in the US, my Black’s says (of willfulness):
“2. The voluntary, intentional violation or disregard of a known legal duty“
and of willful infringement:
“An intentional and deliberate infringement of another person’s intellectual property“
On one view of the world, this would require that the defendant had been presented with evidence that copyright was valid and subsisting and that the intended course of action would result in an infringement (potentially “infringement on a commercial scale”) and having gone on regardless. Given past history, I will take a punt that what instead will happen is that everything that is reasonable for defendants to have the prosecution prove in this offence will, in fact, be placed on the defendants who’ll bear the onus of disproving them. Prime suspects include imputing knowledge of both the subsistence of copyright (probably based on the assertions of ownership on packaging material) and that the action will be infringing (/infringing on a commercial scale). It would be nice to dream, but I suspect that “willfull” will not, in practice, have any effect in reducing the overbroad scope of this provision (indeed, I have proof… – see “The Future is Now” below)
Imagine other crimes in this mold: watching Hollywood movies -> not a crime; watching Hollywood movies “too much” -> crime. One might object that watching movies is not itself actionable (not yet, anyway). This doesn’t affect the argument. For example, consider the crime: breaching your loan/other contract -> not a crime; breaching your loan/other contract “too much” -> crime. Imagine how many former homeowners would now be in the slammer?
What is unstated here is that a likely consequence of this is that in practice the crime will be one of strict liability. Normally actions are not themselves criminal unless they are accompanied by the requisite intent – and conversely having the requisite intent will not normally be a crime in the absence of some prohibited action (in Latin actus reus non facit reum nisi mens sit rea). However, the only action constituting the crime here will be the making of a certain number of copies (willfully – see above).[3] Intention will resolve to whether or not the person meant to make those copies, or whether it was some sort of accident.
For those of you who could not believe any country would enact such an extreme provision, an equivalent provision was included in the Australia-US Free Trade Agreement.[4] It has resulted in this section being added to the Copyright Act:
132AC (1) Copyright Act 1968
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in one or more infringements of the copyright in a work or other subject-matter; and
(c) the infringement or infringements have a substantial prejudicial impact on the owner of the copyright; and
(d) the infringement or infringements occur on a commercial scale.
As if that wasn’t enough section 132AC(3) creates the same offence with a negligence component:
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in one or more infringements of the copyright in a work or other subject-matter; and
(c) the infringement or infringements have a substantial prejudicial impact on the owner of the copyright and the
person is negligent as to that fact; and
(d) the infringement or infringements occur on a commercial scale and the person is negligent as to that fact.
If you are corporate counsel and you are not gobsmacked by this section, you probably haven’t read it properly. This provision seems to imply you can go to jail[5] if you’re negligent when you give advice on whether some activity infringes copyright. If you are the manager of the production line of an embedded device and aren’t gobsmacked, you probably haven’t read it properly. It seems to imply you’ll go to jail if you’re negligent in implementing the licensing contract that your company signed. If you’re any kind of manager involved in the reproduction of anything, you should be gobsmacked (wherever you are, but particularly if you’re in Australia).
Indeed, the AUSFTA has exactly the provisions necessary to remove any meaning from “willful” (see section 17.11.4 here). If anyone wants to know what will be in ACTA and how it will be expected to be implemented in local legislation, just look at Chapter 17 of the AUSFTA and, of course, our Copyright Act.
The world is currently racked by the Global Financial Crisis primarily because the banking sector allowed theory and ideology to obscure common sense. The ACTA suffers from the same problem of ideology displacing reality.
Notes:
[1] How you can remove the monetary incentive of an infringer who has “no direct or indirect motivation of financial gain” is something of a mystery. It simply demonstrates how ideology rather than common sense is the motivating factor here.
[2] During the negotiations in late 2006(?) on Australia’s final implementation of the AUSFTA the question of region locking was canvassed during the [senate(?)] hearings. The argument was that if region locking was prohibited, then Australians would be restricted from playing DVDs they had purchased overseas. The response from “the industry” was that if Australians wanted to do this they could buy a separate DVD player for each region code. As these negotiations have shifted into the realm of ideology any application of common sense appears quite inappropriate.
[3] Indeed, it is a a safe bet that the ACTA will criminalise the making of the copies even if you destroy them immediately afterwards – something that anyone providing any sort of proxying service would be well advised to keep in mind. There is an ideology at stake here don’t you know.
[4] The text is (link – scroll down to 17.11.26):
26. (a) Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Wilful copyright piracy on a commercial scale includes:
(i) significant wilful infringements of copyright, that have no direct or indirect motivation of financial gain; and
(ii) wilful infringements for the purposes of commercial advantage or financial gain.
[5] Sorry, gaol.
PCWorld has a funny article on how Microsoft shopfronts will differ from Apple shops.
AU Gov Digital Economy Future Directions – submissions due today
The Department of Broadband, Communications and the Digital Economy has put out a consultation paper on “Digital Economy Future Directions” –
http://www.dbcde.gov.au/communications_for_business/industry_development/digital_economy
It has some questions on how public sector information ought to be licensed. If anyone from the FLOSS world is interested, they should seek an extension for a week or two and put in a submission.
Also, on a side note, I have changed the RSS to be summary only, is that good or bad?
Resale Royalty: Unfair Inequitable –
The Government recently introduced a resale royalty right. The way it works is that people who invest in eligible works get to pay the rights holders of those works for sitting around doing nothing. When intermediate owners improve the work (primarily by publicising it), the rights holder gets to benefit. The most egregious aspect of this system is that it arbitrarily chooses “artistes” as the receipients of the subsidy. Exactly why should artistes be entitled to such a payment when others in the economy are not? Will these artistes be willing to pay a subsidy to the original builder when they buy their home? Surely the building of a home involves at least as much skill and effort. Will they pay a subsidy the original cabinetmaker for the antiques they buy to create the right atmosphere for their creative endeavours? Surely clients should pay lawyers a cut if they rely on advice and make a profit? Surely school teachers should get a pecentage of the future income of the students they teach. School teachers put a lot of skill and effort in and are a notoriously underpaid sector.
Resale rights are unfair and discriminate in favour of a small sector of the community to the detriment of the balance. This is an ideology that is out of control. This sector is in desparate need of an ideology revamp so that “rights holders” have an expectation to secure their income only honestly from their efforts, rather than on the basis of subsidies from the rest of society.
(Of course, the inevitable has happened. As with all things copyright, the resale right has now gone on the extremism treadmill, with lobbyists already working to extend the scope of this egregious subsidy. I’ve even been asked to sign a petition in support – I don’t think so. )
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