Archive for the 'software' Category

Should Governments Specify Licence Conditions?

I have been made aware of a meme passing around Government purchasing circles to the effect that Government ought not to be dictating licence terms in the course of procurement.  This has two variants, a strong variant that Government ought not be specifying, for example, a class of licence that ought to apply to the procurement and a less strong variant to the effect that Government ought not be specifying particular licence terms. Of course, the underlying aim of this meme is that if a Government can’t dictate licence terms then it can’t require open source.

To argue these positions requires a complete lack of understanding of the role that a licence plays in an acquisition.  I will take software as an example, but any procurement involving a licence would serve as well.   When anyone “acquires” a piece of software they, primarily, acquire two things.  The first, is a copy of the software being acquired.  The second is a licence in relation to that software.  Neither is useful without the other.  A copy, even legitimately acquired, can’t be used* without a licence and a licence can’t be exercised without a copy.   However, of these two components – the licence and the copy, the licence is by far the more important because it demarcates the whole of the uses to which the copy can be put.  If your licence is good enough, you can dispense with the provision of a copy because you can acquire the copy from elsewhere.   The acquisition of the licence, and the terms of the licence are the greater part of the substance of the procurement.

To take a practical example, if I were to buy a copy of Office from Microsoft I can choose from Office Home and Student 2013 or Office Home and Business 2013.   Microsoft provides a comparison chart which discloses that the main difference between these two packages is that the first can only be used for “Home Use” while the second can be used for “Home or Business Use”.  Now, the purpose for which I might use Microsoft Office is not a function of the copy of the software I acquire.  It is wholly derived from the licence terms which apply to that copy.  To argue that the Government is not able to specify the characteristics of a licence is to literally prohibit Government from discriminating between a licence which permits only home use (which would be useless to the Government) and one which permits use in the course of business.

For a public servant to even entertain the possibility of a broad based limitation on specifying licence characteristics would be to demonstrate a total failure to understand the subject matter.  The licence is the substance of any software acquisition.  To not be able to specify licence characteristics is equivalent to not being able to include technical specifications in any other sort of acquisition.  It is a nonsense.

The only time where specifying a licence ought to be prohibited is where the licence terms effect an exclusionary dealing.  So, if the licence terms permitted use only by persons who had signed up for some form of online service being offered by a third party, that would be anticompetitive because it would require bidder’s  customers to be funneled through to the a third party.  Open source licences do not have these dependencies.

* technically, some uses may be permitted if they do not involve an infringement.  However, the scope of things which count as an infringement these days is so broad that in any practical scenario the use of software will involve performing an activity which would, in the absence of a licence, infringe copyright.


UniPod for Android

UniPod for Android

Annoyed at Android media players in general I’ve written my own.  The point?  To be able to play long running audio files like university lectures or audio books.  Available for free in the Apps -> Books and Reference section on Android market (or if you’re technically inclined, download the apk yourself).

Features include:

* no playlist, choose a course and go

* no album art, but you do get large text telling you what you’re listening to

* no shuffle to turn on accidentally

* what you are listening to is automatically updated, so even in the worst case if the app crashes it should restart where you were up to.  But in the best case you can always take up your listening from where you left off

* autoreview – it automatically rewinds

* customise these features as you desire.

* never see your music again!  If you want to just see (eg) lectures, you can filter out your music tracks.

* and more!

Known issues:

* some “application taking too long to respond messages”.  Hard to diagnose.

* this is a player only.  You need to get your media onto your phone first.

Inline those Word Comments with iwc

Inline those Word Comments with iwc

Microsoft Word has a somewhat repugnant feature called “comments”.  The concept of comments is not so bad, but the implementation in Word is definitely annoying.  Why?  Because to read the comments you basically need to be in Word with the document open and either use their awful “bubble” interface to read the comments (where the comments are shown in the margin), hover your pointer over the (nearly imperceptible) comment markers () or open up the comment pane at the bottom.

The upshot is that printing the doc and reading it in a more comfortable setting is a no no. If you *do* print it out, the comments are unhelpfully located right at the end of the document so you need to back-and-forth from the text to the comments.

So I wrote myself a short script to inline those damnable comments (GPLv3).  It requires the command line and is written in Python.  If there is a modicum of interest it wouldn’t be much trouble to write a simple GUI frontend.

The process is:

* using Word, “save as” the document to a .txt file (choose ‘unicode – utf8’ but default should also work)

* python -i infile.txt -o outfile.txt

* open up outfile.txt with your favourite editor

Be warned – the quid pro quo for doing this is you lose a lot of your formatting :( Try using Word’s compare to see the markup between the original.doc and outfile.txt to show the comments.

Click here (or the link above) to get the script

The Real Story behind Windows 7 Phone Home

The Real Story behind Windows 7 Phone Home

ie: my guesses about it

Lauren Weinstein reports on a new feature of an update to Windows 7 (apparently called KB971033?), which continually checks (once every 90 days) to see whether the installation is authorised/activated/validly licensed.  Some sites have discussed this and made something of the fact that it is voluntary to install, and/or checks to see that the installation is valid even if it has verified the copy as valid and even if the copy has already been authorised.

I tend to think this has not so much to do with piracy per se as solving a couple of Microsoft’s other problems.  The first is the lumpiness of Microsoft’s revenue.  It gets a heap of extra revenue when it releases new versions of whatever.  Microsoft has tried to overcome this by its assurance programs, in which users are asked to sign on to a subscription program.  However, ultimately the subscription programs are dependent upon Microsoft actually releasing new versions from time to time (what a drag!).

The second is the problem of proving losses.  If you make an illegal copy of a Microsoft product and then buy a legitimate copy (or as many legitimate copies as illegal copies you have made), exactly what has Microsoft lost?  Microsoft, for example, gets the same amount of money, it just gets it at a different time.    This is because there is no tying of the license to a particular period of time.   If a person made an illegal copy of Windows98 (say) 10 years ago and buys a legitimate copy today (yes, I know that may not be possible in fact) it is hard to see what Microsoft has actually lost, except the time value of money over the past 10 years (this, unfortunately, might lead to ‘gaming’ of the system, where a person makes illegitimate copies until they are caught, then buys legitimate copies to cover their nefarious activity).   Note: There is nothing specific about Microsoft to this argument, it applies generally to software licenses which are not limited in time.

Both of these problems are solved by tying.  Microsoft began tying a long time ago by tying copies to specific hardware.  This is what the authentication stickers are all about.  Their purpose is not to prevent piracy.  Rather, their purpose is to prevent a legitimate purchaser moving a particular copy from one computer to another.  If they can’t move the copy then, the theory goes, they must buy a new copy.   Moreover, by withdrawing product from the market, Microsoft can force upgrades to new versions of Windows.  If someone could take their legitimate copy of Windows XP from their old computer (and wiping the old computer and loading it with Linux) and load it onto their new computer, would they have bought Vista?

The next form of tying is to time.  The point of having the check being performed once every 90 days is to allow for the prospect of quarterly licensing.  You pay a fee each quarter in order to have continued access to your data.  The 90 day phone home is just the latest piece in the puzzle.  Others are things such as the time limited trial installations of office that OEMs force onto people.   In a year or two you will no doubt see Microsoft offering (initially) optional, low priced time limited licenses, with a view to moving the market over to the new licensing scheme over time.   Time limited licensing may also alleviate (although maybe not solve?) a problem that Microsoft faces with the Netbook form factor – that is, it is too expensive to pay any significant amount for a windows licence on a $300 (or cheaper) machine.  However, if you have a time based license, the first three (or six) months might be given away free or charged at a low amount.  This would allow hardware manufacturers to legitimately sell Windows loaded machines at the same price point as a Linux loaded alternative.

Just follow the bouncing ball…

See also: computerworld article, someone’s blog, someone else’s blog,

More Busybox Suits

More Busybox Suits

Received an email from the SFLC today.  It seems that Best Buy, Samsung, Westinghouse, JVC and Western Digital are all defendants to a busybox based lawsuit initiated through the SFLC.  Complaint is here.

Netbooks, Microsoft, a Turning Point

Netbooks, Microsoft, a Turning Point

If we win one more such victory … we shall be utterly ruined.”

Pyrrhus of Epirus, quoted by Plutarch in Life of Pyrrhus.

About 18 months ago a silver (actually white) bullet known as the eeePC running Linux appeared.   They were literally sold out immediately (example story) – despite the fact that they were pre-loaded with Linux, and well before the onset of austerity from the financial crisis.   Within 2 or 3 months a version of the eeePC running Windows XP was announced, first shipping in early (perhaps Jan??) 2008.   At about the six-eight month mark (give or take) people were happy to report the form factor being sold at 70-30% in favour of Linux (google it or see Brendan Leblanc’s claim of “under 10%” in the first half of 2008).

Since that time something has happened.  The specifications for this class of portable device have been steadily increasing, closing the gap between them and standard laptops (so much so, that there may not be a “netbook” market anymore).    With that the price of these machines has also increased.  Linux versions of the eeePC are either not available at all, or are only available on the lowest specification models.   Microsoft now claims to have dominated the  netbook market  with Windows installations (see the Leblanc post referenced above). [One comment notes that Linux based netbooks are available in China.  I would guess that they are available more generally in SE Asia (more price sensitivity) than in the West.]

Windows/Netbooks = Game Over?

Microsoft’s reaction to the success of the eeePC seems, on reflection, to have been well and professionally executed.  Indeed, now that the specifications have been upscaled, Microsoft has announced an intention to increase the licensing fees for this form factor.  That leaves open to question however, how the eeePC was able to be released sans Windows in the first place.  It is difficult to believe that Microsoft had no  knowledge of it.  If they did have knowledge, they certainly could have struck a deal over it (as the fact that they subsequently struck such a deal demonstrates).  They presumably chose not to strike such a deal.  Only ASUS and Microsoft really know what happened, but it does not seem wildly outside the evidence available to speculate that ASUS was initially rebuffed by Microsoft and then has had Microsoft approach them cap in hand.

If so, the eeePC has imposed a heavy price on Microsoft.  It was not a monetary price, although Microsoft has been reporting substantially reduced revenues (indeed, apparently its first ever quarterly revenue decline) and attributing those reductions to the netbook form factor (random example stories- one, two and three).  Rather, that price was its credibility.  The eeePC experience has indicated:

(a) that Linux based products can be a commercial success in their own right; and, as a corollary,

(b) that Linux allows manufacturers to dictate terms to Microsoft;

– and that is the crux of it.  In 2007-08 ASUS appears to have achieved what no other computer manufacturer has managed to do in perhaps over 20 years – it dictated the terms of supply of Microsoft’s products, both in terms of price and availability (XP’s sales availability was either ended or imminently to end).  Given the position of Microsoft this, of itself, is a remarkable achievement.  However ASUS’ achievement was even more far reaching.  Not only do they appear to have dictated terms, but the terms were, in effect, that XP be sold both as a commodity and as a complement to the eeePC.  Commoditising your complements is the holy grail of business.  It allows you to extract the most value/price premium from the sale of your products.

Far from showing strength, the wide availability of Windows on netbooks is a sign of weakness.

Looking forward

The eeePC was the proof of concept for a Linux based future.  There is something incredibly powerful about achieving an apparently unachievable goal.   Until something has been shown to be achievable, only the very brave or committed will even attempt it.  However, once something has been shown to be possible,  many people suddenly become willing to attempt it, and with more people attempting it, each new comer learns faster from the experiences of others.  Consider the history of scaling Everest, with some 30 years from the first attempt in 1922 to Hillary and Tenzing’s first successful ascent in 1953, the time since has been peppered with many additional ascents, including ascents under different conditions such as an ascent without supplementary oxygen, which was once thought too difficult.

It should therefore not be much of a surprise that many companies are now making strategic investments in Linux (reload the link if you don’t get there on the first attempt).   Some companies (such as Dell, Acer and HP) are expressly supporting Linux as a desktop operating system.

Rumours of My Death…

Nothing here should be taken as indicating backruptcy any time soon (- or ever!), or that there is imminent danger of Microsoft ceasing its participation in the IT sector.  It’s involvement is broad and deep and will not fade for a long time.  General Electric, for example, continues to live on after having diversified into many different areas over the past 100 years (Wikipedia claims that half of its revenue now comes from financial services).   Rather, it seems that the days of Microsoft-as-we-knew-it, the corporation which could dictate, at least to some non-trivial extent, many aspects of the IT industry through its leverage over OEMs are over.  Microsoft cannot afford for an OEM to stare them down on the next  eeePC – another Linux based success on the scale of the eeePC would remove any doubt from the minds of the industry.

If this assessment is correct, we would expect to see other industry participants investing in open source, and in Linux in particular, as both a hedge and as negotiating leverage.  Indeed, assuming that ASUS has extracted concessions from Microsoft, other OEMs will be disadvantaged if they do not follow a similar strategy (see this story on Acer’s proposed support of Linux for example).  Loading Linux now appears to be a path to strength.  Google is pursuing it.

In addition, we would expect to see Microsoft to continue to back track on its licensing requirements.   We have seen the start of this in its removal of the three concurrent applications limitation on the starter edition of Windows 7, and also in its repeatedly pushing back the end of availability to manufacturing of XP (it is now 30 June 2010 for the netbook form factor – however despite Microsoft’s end of sales date ASUS has apparently secured an agreement to load XP on its eeeTop).  2008 seemed to be a particularly fruitful year for backpedalling (including limits on CPU speed, RAM, hard drive size, use of hybrid storage and screen size – apparently screen size for a netbook is now 14.1″, – hardly a substantive limitation on the netbook form factor).  [One comment indicates that the screen size for windows 7 is 10.2″ – it will be interesting to see how this plays out, although 12″ netbooks don’t seem to have done that well]

The Final Analysis

The eeePC experience was the case study for the viability of a Linux based future.  If ASUS has used the Linux eeePC to extract negotiating concessions from Microsoft, then it has, in the process, also undermined Microsoft’s credibility, opening the way for other vendors to play into this gap.   Further, if ASUS has secured concessions then other vendors who do not pursue an aggressive Linux strategy will put themselves at a disadvantage.  There is therefore an internal logic to the market which will drive support for Linux installations going forward.


I’ve not been able to pinpoint the initial launch date for the eeePC, although it seems to be 16 October 2007.

I recall, but cannot find a reference to, thieves taking the Linux notebooks, but leaving the Windows based ones behind when they robbed a store.  I think it was in the UK and I think it was around March 08. [-> See comment from Al, re Elonex netbooks]

Many secondary documents had to be referred to because primary documents were updated, losing the time relevant information.

The Windows versions of the eeePC were curiously configured in such a way that there was no direct comparison between Linux and Windows versions.   This was also true of some Acer models.  Dell now seems to offer direct comparison (eg lattitude 2100).

Post script

The eeeTop appears to not be available with Linux – however it is shipping with OpenOffice installed.  I guess  other vendors don’t offer an OpenOffice option on their installs – a quick look at the Dell 2100 indicates that Microsoft Office is available as a customisation on the Windows version, but no office suite is available on the Linux version.   Office suites may be next…

ACTA: An Attack on Common Sense?

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”?

What about Willful?

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)

Too Much!

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?

It’s probably a crime of Strict Liability

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.

Piece de Resistance – The Future Is Now

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.

ACTA and Ideology

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.


[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.

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