Jim Flowers: Internet Law

Yeah, what he said

Fri, 20 Aug 2004 09:37:23 GMT

Sound philosophy for developing policy for this century:

"We live in a quicksilver technological environment with courts ill-suited to fix the flow of Internet innovation," Judge Thomas wrote. "The introduction of new technology is always disruptive of old markets, and particularly to those copyright owners whose works are sold through well-established distribution mechanisms. Yet, history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine or an MP3 player." (NYT)

Headlines do tell a story

Fri, 20 Aug 2004 01:44:33 GMT

I find the contrasts in the following headlines interesting for what they say of the editor's knowledge of the subject before the US 9th Circuit Court of Appeals:

Court Rules Some File-Sharing Companies are not liable (NYT)

Judges rule file-sharing software legal (News.com)

Studios are dealt Piracy setback (WSJ)

US Court rejects Movie, Music Makers' Piracy Claims (Reuters)

Court ruling favors music-sharing networks (Post)

Now, the following is the most accurate headline from early in the day today:

Court Finds for Grokster, Others on Copyright (Reuters). Reuters - A federal appeals court on Thursday ruled several Internet file-sharing software companies are not liable for copyright infringement for digital video and music files traded online utilizing their programs.

I have read a couple of critiques of the ruling and it boils down to an affirmation of the Sony Betamax decision of 1984. Such affirmation hardly constitutes a blow to piracy efforts anymore than it legitimizes illegal sharing of music across a network. Perhaps editors need to spend more time in class so that the content and context are more clearly represented in the headline (but, then they couldn't sell papers then could they?)

Sat, 17 Jul 2004 20:46:07 GMT

Haven't read it yet. But should use as reference.

Link Law Revisited : Internet Linking Law at five years.

Wed, 03 Dec 2003 02:39:11 GMT

This would be funny, if the lies weren't true.

We oppose the UN regulating the Internet because we (the US and business folks) fear that such regulation would give UN government types power that would affect the free flow of information.

So, the PATRIOT Act doesn't affect the free flow of information?

CIPA doesn't affect the free flow of information?

The FCC trying to regulate VOIP because the White House ways the technology would hamper wire tap tries against terrorists -- doesn't hampe the free flow of information?

And, the anti-spam bill, which favors the Fortune 500 , yet does nothing against real spam, thus killing the internet -- doesn't hamper the free flow of information?

Give me a break!

Rifts mar digital divide summit. Political wrangling is threatening to derail the first United Nations summit aimed at bridging the digital divide. [BBC News | Technology | UK Edition]

Sun, 10 Aug 2003 01:37:26 GMT

"Lawyernetbook" [Daypop Top 40]

Fri, 01 Aug 2003 13:13:17 GMT

Two Register Articles

One piece talk about how security officials totally missed the obvious fact that a physical attack on infrastructure would be as damaging to our information systems (i.e. the airliner into the world trade center) as a "hack" attack. So, while they were looking for someone to live out a Tom Clancy dream, the attack came from the real world.

Second piece deals with SBC challenging RIAA on their legal tactics. The article goes on to say that calls are now out to re-look DMCA, as one congressman says - "we don't cut off hands for stealing here." hmm...

Thu, 31 Jul 2003 11:16:11 GMT

Why Government should avoid SPAM.

Come to think of it, it was the Government in WW II that promoted SPAM (the meat? product) to its glorious heights. Now, Congress (and some state legislatures) think they can regulate SPAM out of existence. Well, as they say, once the SPAM is out of the can...

Anyway, this article is good info for coming legislation.

Antispam Bills: Worse Than Spam?. Many online advocates would love to see spammers burn in hell. But they caution that Congress' zeal to pass antispam legislation is more likely to wreak havoc on the Net than to solve the junk e-mail problem. By Ryan Singel. [Wired News]

Fri, 25 Jul 2003 01:12:26 GMT

No standards

Let met get this straight -- Ashcroft defended CIPA as necessary to protect the children -- but, we don't have to set any standard for performance -- no guarantee the children will be protected! Please....

Libraries get a break on Net filters. The FCC gives libraries an extra year to comply with a controversial law that says if they accept federal funds, they must install Internet filtering software. [CNET News.com]

Fri, 18 Jul 2003 19:53:36 GMT

Private company keeps your face for 10 years

Why I Will Never, Ever Fly Southeast Airlines. Wired News: Videocams Record Airline Flights. Southeast Airlines said it plans to install digital video cameras throughout the cabins of... [Dan Gillmor's eJournal]

Fri, 18 Jul 2003 18:06:07 GMT

RIAA Ethics

Pretty cheap, considering.

Andrew Orlowski: Congressman pocketed $18,000 for RIAA 'lobbying trip'. The congressman is James Sensenbrenner, who brokered the compromise that put an end to nearly all news about Internet radio, growth of which has been effectively throttled ever since.
[The Doc Searls Weblog]

Fri, 18 Jul 2003 14:25:46 GMT

More on Public Executions and File sharing

Doc Searls finds more data on Conyers-Berman. John Q Public commented on my post yesterday wondering if this strategy would scale? Hmm...

Speaking of loads.

Says here that Reps Conyers and Berman (both Democrats, fwiw) want jail time for folks who share music on their hard drives. There's nothing about the bill (or even much current stuff at all) on Conyer's site. Berman's site points to Tom-watson.co.uk, titled Section-by-Section Analysis of The Author, Consumer, and Computer Owner Protection and Security Act of 2003.

They might as well call it the Jail your customer industrial suicide act.

Tom-watson's operative Analysis of Sec 301:

Clarifies that the uploading of a single copyrighted work to a publicly accessible computer network meets the 10 copy, $2,500 threshold for felonious copyright infringement.

From Berman, here are the press release and the floor statement. A .pdf file of the whole bill is here. (Isn't there a law somewhere that says the damn bill should be in html? Oughta be if there isn't.)

Go read it. Scary shit.

Bonus link from Mitch Ratcliffe: Prison for fileswappers -- Dumbest idea ever.
[The Doc Searls Weblog]

Thu, 17 Jul 2003 17:32:26 GMT

Book 'em, Danno.

The Conyers-Berman bill that would ensure 5 year prison terms for file-sharers will definitely get the attention of Joe Citizen. Imagine this scene:

Suburban family enjoying time together watching TV. Teenage son upstairs listenting to music.

Cue: Helicopters, knock on door

"Open Up, FBI"

As a concerned father opens the door, a swat team breaks in - dashes up the stairs and brings their kid down in cuffs.

"Don't let this happen to you!" Says a reformed Snoop Doggy Dog.

Those two sponsors need to find a new job. Scenarios like this will make tech policy become a kitchen table issue.

Thu, 17 Jul 2003 15:20:58 GMT

An interesting response to SDMCA

Several folks interested in the Super DMCA bill here in Georgia conversed via phone yesterday as to how to work the bill. Frank Field provides a link to a story describing the NC legislature's effort to protect the consumer's right to refill a toner cartridge. Seems to me, examples like this are a great way to convince state legislators that big companies are abusing copyright law in a way that will constrain consumers the utmost.

Perhaps it is time to create a model consumers' internet/digital millenia rights bill?

Thu, 10 Jul 2003 13:11:00 GMT

DMCA may be worse the Home Secrets Act

I used to think that the Brits were the most uptight about public information being made, err, public. I met a student 22 years ago arrested for making a map showing that NSA satellite dishes were conveniently parked next to British telephone switching stations. That's like someone noting on a road map where the military installations are located here.

So, someone writes a book that talks about how a supposedly secure system is "cracked" ... and after the publisher's attornies revew the chapters -- they withdraw support of the book. So much for speech and innovation, right?

Behind a Hacker's Book, a Primer on Copyright Law. An engineer and programmer in San Diego has also been an introduction to copyright law in the digital age. By Seth Schiesel. [New York Times: Technology]

Tue, 08 Jul 2003 14:43:49 GMT

Conference Blogging - the meme continues

Frank Field (Furdlong) provides an excellent example of how the conversation that was begun at the ILAW conference is extended by blending current news with notes from the conference:

From CNet News: Court backs thumbnail image linking

The 9th U.S. Circuit Court of Appeals' decision is a partial win for defendant Arriba Soft--an image search engine now known as Ditto.com--in its case against photographer Leslie Kelly. Kelly sued Arriba Soft in April 1999 for copyright infringement when the company's software had recorded miniatures, or thumbnails, and full sizes of Kelly's digital photos and made them accessible via its search engine.

The court ruled that use of thumbnail images in search engines is legal, confirming an earlier ruling by the same court from February 2002. But the court withdrew a previous decision on the display of full-size images, which it had deemed out of the bounds of fair use because it was likely to harm the market for Kelly's work.

Note also that the reason the court overturned the finding of the district court in the case of full-sized images was that these images were not a part of the plaintiff's original complaint, not that the full sized images were found also to be fair use.

For anyone who was confused by my writeup of Terry's talk on the doctrines used to evaluate a claim of fair use under copyright, the opinion in this case is a very clear example of the application of the current doctrine. (link)

There are other examples if his linking lectures from the conference with clips from current events. Ventureblog provides a piece giving you a taste of the atmosphere and some of the personalities present at ILAW. As I read the notes, I can see a pattern that can be created by weaving using hyperlinks that will create strong knowledge bases for participants and others.

I hope to have time to link and refer to Frank, Donna, Aaron and others who blogged their notes as a form of reflection. And, the information is good prep for the work to be done here on Super-DMCA (HB 867), State CIPA (SB 52), Code Update (SB 103), and others sure to come.

Fri, 04 Jul 2003 22:32:42 GMT

ILAW - Wrap Up

Nesson

Take experience of week in put in self-reflective terms to crystallize a question. I have found myself in slightly uncomfortable position – I was to the left of Fisher – now, I am not so. So, faculty members think in terms of question for the others.

To Terry Fisher: would we like to see a digital music world in which people buy their music through iTunes an like delivery services.

Would Terry say no? bks his system is better ? Or, if yes – will an iTune like model thrive if people can get music for free?

The answer will depend upon the split of the market between customers as legitimate consumers and those that choose to not pay.

Will a crash of the existing copyright system lead to change in the copyright system or change in the net?

Do we want to take a chance of finding out?

So, Terry , that is my question to you <gr>

Fisher

Some minor changes in law could curtail the illegitimate activity – would be lot better than what we have. Music would be cheaper more widely available.

1. Retain current structure of music industry and focus on

2. (gonna have to listen to the recording and figure this out)

Zoned Internet (cut up for enforcement) – or global phenom?

Jonathan

To imagine cutting it up into cantons seems antithetical. On other hand, from a lawyer’s point of view it sounds like that is what the doctor has ordered. But I think majority of stuff on the net is speech and therefore deserves all the protection it can receive.

My question to Larry : What’s the right political process through which to make decisions about the kind of internet we collectively want?

Lessig

I think it is harmful to imagine these conversations in one large place or being broadcast – (talking of convention) – it will happen when 10 million people convene on the net to discuss the idea and experience what it is to come to a conclusion with someone else.

The politics looks like another 5 years of increasing bottom up conversation of these issues – which would be an amazing change. It would be an amazing change returning to what a democracy truly looks like.

Question

Database protection is big in Europe. Could you comment (Benkler) on two laws in Congress?

Benkler

Mid-90’s EU passes directive. US 5 years before that under Sup Ct decision finds that raw facts are not capable of being protected by copyright. Have been failing at Congress because there are players that benefit without such an act. (hmmm… wonder if he would be interested in the GECA activity on this matter at the state level?)

We haven’t seen the European industry flourish – or US shrink. It is not be good idea… I do not think it is as close to being passed as it was three years ago.

The legislation is part of the enclosure movement. The need for stronger property rights is a fallacy.

Question

We are forcing different groups to ignore the law (sharing music, other countries violating drugs, patents) – and this is not stopping the behavior thus eroding belief in the law. Would you rather have them stealing your software? (I stepped out, check the recording)

….

Question

How do you relate semiotic democracy to political mobilization?

Benkler

There are three questions to your questions

1. Digital Divide – when necessary condition to capture benefits requires capital expenditure does that exclude poor users?

2. Does internetworking in decentralized mode help political mobilization across geographical areas? Easy – look at protests in seattle – march against iraq war -- so it is incredibly empowering to communities of political interest which is separated by geography (assuming 1 is answered)

3. With regard to digital divide – combination of economic technology transfer and capital on investment in ict’s and including mechanism for pooling resources (i.e. libraries and kiosks)

4. Do we fragment common identity by adopting this decentralized model? We already have destabilization of old community lines – the recreation of communities of interest that transcend these old boundaries –

Question

If media is so powerful, why not use it to get the story out?

You can’t explain it in 10 seconds. Mainstream media won’t spend that much time to gain the understanding.

It may also be the way we dress?

What were your interests that led you in to internet law?

Jonathan: Internet brought me into law rather than the other way around. It was being 12 moderating a forum on compuserve. Being able to exchange words without people worrying about how old I was – sort of brought me into it.

Larry: Juliane Lebell “Rape of Cyberspace” – “I know that these are only words “ people didn’t understand their own politics. Teaching cyberspace I could trick the students to think about what they thought.

Benkler: I was focused more on property rules and their relationship to freedom and I completely by chance someone asking for money writing an email on internet law. I decided I should focus on things that were coming into being as I could actually affect it.

Fisher: interested in property rights a long time bks it was a subject that dealt with power. Which brought me to intellectual property law… the most notorious locus brought me into the internet arena.

Nesson: Took course on Univac I in 1958 – nothing really happened until Zittrain showed up in a class of mine. I happened to have a grant from a company that we spent on Mac quattras (?) did digital projects with anetwork – Jonathan madeit all work – I got into it for the potential for teaching.

How much do people think the code, the architecture, etc of the internet a US centric thing? Whose gonna run with these ideas?

Larry: we are being governed by it….

[….]

Is Marxism alive on the net? Hmmm…. The language does remind one of socialist economics.

Benkler: Libertarian approach may be best… and then it may be best answered in social engineering terms rather than law or agency…

What’s the appropriate role of the government?

Fisher: I agree with Yochai that the sensible approach is a pragmatic one. It is mistake to see copyright as a natural extension of market – as it is a system representing massive intervention of government power… into how people behave.

…

Is Internet law a field or passing phase?

It is uniquely powerful in its potential.

Benkler: Not convinced that is an appropriate question…

Larry: Close

Fri, 04 Jul 2003 19:35:46 GMT

Freedom and Political Morality

Benkler

Regulation of speech

· Law

o Affects speech through formal censorship

§ Smut

· Lady Chaterly’s lover

· Technology

o Brown paper covers

o Radio cleaned by law

o CIPA

§ Cyberporn

§ Law requires verification of age via credit card – increase oppty for social surveillance which ties to social norms

· Social Norms

o Shame of asking for copy kept behind counter

· Market

o Pervasive violence but prudish on sex/nudity

…

Zittrain

Demos filtering at Saudi site

And AG in Pennsylvania

Get link to his empirical analysis of filtering in china

…

[will have to refer to others here – and consult my recorder}

…

Political Democratic Discourse

Political economy media studies critique of commercial and concentrated media
- Berlusconi effect
- Baywatch effect
Positive political economy feedbacks
- Campaign finance

[hmm.. I’m paying attention now – course the last time I read political economy papers – I got a headache.]

How are these effected by the internet when it is open?

….

Possibility and Challenge

150 year trend towards industrialized information production
computer networks invert the organization of communications facilities
open the possibility of
- radical decentralization (hmm.. Bowling Alone?)
- substantial increase in role of non-market production
freedom from both government and private censorship (as if we can ever escape social norms)
will we move to an internet model or will we stay with a glorified broadcast model?

Building the commons

A core common infrastructure

Physical layer – funded by public

Logical layer

Secure a free and open logical layer

Reverse DMCA and UCIT

Content layer

Resist the enclosure movement and reclaim the public domain

Intellectual infrastructure

Non-market production (ok, I would rather see more market)

Institutional infrastructure

Social practice

Politics of Freedom in the Commons

Fri, 04 Jul 2003 18:07:58 GMT

Privacy

Jonathan Zittrain

Mollie Van Houweling

Lessig

It is great for you to show up. But you will be rewarded appropriately.

We will entertain as many thoughts as possible today.

Zittrain

Mollie also worked at ICANN longer than she probably wanted to.

Privacy is a topic that everyone feels strongly about – but when you get into it, it turns into mush.

So, while it is interesting, we don’t have the answers, and thus it isn’t as fun to teach about.

Categories of things we don’t like teaching about

Specific examples of things we don’t like teaching about

Categories of Privacy

collection of personal data
use of personal data
personal environment
vital personal decision

Control over…	Police	Finance	People
Collection of personal data	Carnivore; kyllo	Cookies, rfids	Snooping
Use of personal data	DIF/TIA	Price and service discrimination	Identity theft
Personal environment	Humiliating searches	Spam	Spam, cyberstalking
Vital personal decisions	Abortion + birth control	Obtaining a loan	Nuremberg files

Carnivore – discussion of technology. Taking government to task for seeing data it may not intentionally want to see – is troublesome

Kyollo – thermal imaging case – court ruled expectation of privacy was breached when police used thermal imaging camera and saw marijuana and then got a search warrant

But the baseline for regulatable search is shifting as technology shifts.

Does it make sense to say we had an equilibrium before the internet?

How easy is it for the cop to intervene?

Kyollo says once imaging is available (and expectations of privacy are lowered) then it will be allright

Basic tech discussion

Looks at ABOUT.COM for a cookie demonstration

Mollie

“Americans will sell their privacy, bit by bit, for frequent flier miles.”

IRS established DIF formula (regression analysis to spot tax cheats)

An individual FIOAd the DIF formula (govt invoked a National Security defense)

Chilling effect of TIA, DIF – what does it mean?

[there is a raging discussion on the right to privacy on how government use of technology – focusing on accountability, abuse – interesting that the folks from Europe are making the strongest case for such a right. Especially since certain 3 letter agencies have been snooping on communications and other forms of data in Europe for the last 50 years!]

Placing tracking tech in razor blade packages – you could inventory the contents of a house with such technology.

Audience

Conversation shifting to personal information treated as property.

Discussion on The Nuremberg Files – web site

[…]

Fri, 04 Jul 2003 00:24:46 GMT

Computer software – proprietary legal strategies

Fisher

Various legal regimes available to software developer

Trade Secret
Copyright
Patent
Contract

I do not believe software is improperly protected by patent. I don’t think the differentiation is so clean (patent vs copyright). But, patent law must be properly constructed. Contract law is much worse, as it has been construed.

Trade Secret

Trade Secret is state law and thus varies but not a lot.

Provides protection to secrets – things that fit include- info to contents (secret formula), process (effervescent power), has been extended to ephemeral events, particularly negative ones. Includes computer programs.

Requirements for protection

Information must have been “secret” initially – some courts add novelty requirement
plaintiff must have made reasonable efforts to keep it secret
the information must be commercially valuable

Requirements for liability

Breach of confidence
1. Confidential relationship
2. Reliance on commercial custom and tacit understandings
secret was discovered through improper means
1. e.g. overflights, fraudulent misrepresentations; phone taps
reverse engineering is permissible

Copyright law

Entitlements
1. Reproduction
2. Derivative works
3. First distribution
4. Public performance
5. Public display
exceptions
1. Fair use
2. Merger (ideas may not be protected – only expressions of it)
3. Essential or archival copying

Recounts Apple v. Franklin (CA3 1983)

aid had to copy Apple OS in order to run apple compatible sw

Trips agreement extensds

Article 10 – Source and object are protected by copyright

Other articles make more explicit terms and exceptions

Has been suggested American fair use agreement violates article 13

Dimensions of diminishing copyright protection

Q– does TRIPS require every country to honor every court decision?

A – imposes minimum levels of protection – not a single copyright law (still other stds country by country)

Why is it declining?

Copying non-literal features of programs (read a book, write another mimicking a book) How similar?
1. Whelan (1986 CA3) – improvement of existing work too close
2. Altai – really creates expansive 3 part test

i. Abstraction (map features comparison)

ii. Filtration (remove from map unprotectable functions)

iii. Comparison (what is left) if parallelism is tight – infringement

iv. Filtration process makes it harder for copyright owners to prevail

reverse engineering for the purpose of interoperability
1. Sega (CA9 1992) – accolade reverse engineered code to get games to run – sega brought suit – excused as fair use – done for interoperability
menu hierarchies
1. mimic commands – aka Lotus/MS/borland
ineffective enforcement
1. Analyzed BSA numbers – he found correlation to low piracy numbers and high Gore votes

Patent

Cases asserting patents in sw
1. Gottschalk (1972) – can’t patent algorithm
2. Parker (1978) – same thing
3. Diamond (1981) – if embedded in a machine or chemical process whole things is protected
4. Federal circuit relaxation of the test

i. Step by step

US Patent activity (2001)
1. 12,000 sw patents
2. trend is up
Doctrines by tech sector
1. Utility – easiest
2. Novelty – higher hurdle
3. Obviousness – higher (sw is raised)
4. Disclosure not as high (sw is lowered)

Contract

shrink wrap license
1. prohibits fair use, reverse engineering etc.
click on licenses

So, contract law is the really bad animal.

The real hazard is here.

Thu, 03 Jul 2003 22:46:17 GMT

Code Debate

Can free sw exist with proprietary sw

Jason Maslou? (Shared resource mgr)

Larry Lessig

On the surface there is coexistence in the eco-system –tension is whether free sw will survive

You gots

Free -- open – shared – proprietary

So lessig is taking free and open vs proprietary

Advantages
- Zero price
- Good code
- Teaching others
- Strategic behavior
- But destroy IP?

	Open	Free	Shared	Proprietary
Free	Y	Y	M	Y
Good	Y	Y	Y	Y
Teach	All	all	Some	None
Strategy	Unlikely	Never	Y,hard
Destroy	N	?	?	N

Both free sw and proprietary impose a condition on a user (copyleft)

Proprietary sw imposes condition of no right to modify

Microsoft has acknowledged open/free is competitive threat

From microsoft’s perspective opposing open is good

From govt’s perspective – increased interesting in requirements for open software for obvious reasons

Maintaining a rich ecology keeps options open, assures competition

Microsoft response – government should not support the GPL part of the ecosystem

Bks Microsoft Answer

primary stimulus for innovation is IP protection Not only stimulus
private sector foreclosed Not all (e.g. IBM)
commercial application foreclosed (only MS)

Jason

(first he gives larry a dark cape and light sword)

There is a lot of attention drawn to MS when you talk of windows v linux. Or other product level discussion.

Not talking about that. Shared source is thinking about issues surrounding Industry, IP, economics, policy…

Cycle of innovation within software community including govt research, academic, industry, customers with shared knowledge

TCP/IP came out of this cycle. I disagree with Larry that internet came about bks of tcp/ip and architecture – in truth it is because of production of cheap hw and communication techniques

There is no right way to create sw

Combination of models has been critical factor for past 30 years

The bulk of open source sw is being commercialized. That is where ballmer’s comments are focused.

There is an industry move to the middle. IBM does proprietary and non-proprietary (Notes vs. Linux) and other examples

Did model of software investment – shows that innovation as a competitive differentiation shrinks when shifting to open source.

Why is source code important in debate

Transparencey increases trust

- ~60% say source access is critical for view/modify

- <5% will view system source

- <1% will modify system source

MS is sharing source code with customers, partners and governments worldwide

Nesson

Let’s focus the debate by each of you taking one minute to state question you would like the other to address:

Larry (w/o light saber but liking the cape)

Not a lot of difference of what we said. Transparency is the word I want to focus on – is Microsoft being transparent?

Jason

We have been extremely transparent on feelings for gpl – we have said we don’t like the license and have told on the web site what we don’t like about it.

Relatively to govt – MS does not believe govt should place procurement preferences on development model of sw – rather the value they receive in the software they should choose on the merits of technology.

We never advocated DOD not use open software – just urged they carefully review the license of gpl

Larry

Is it just money govt’s can consider

Jason

No. Cost is just one piece of the proposal. Your decision of what is valuable to you is not just monetary.

Larry

So if developing country decided that open source is better for their country –

Jason

I agree with you up to the point that should be legislated

….

[4926]

…

Jason

Is direct commercialization bad?

Lessig

No. Are software patents bad? Yes – my complaint is the awfulness of the patent process as it applies to software

Jason

Lessig

Brad Smith and I have talked about imagining a better software patent system – and that would be good. Software patents are bad now because existing system is so poor.

….

Thu, 03 Jul 2003 19:41:49 GMT

Free software and commons-based peer-production

Yochai

Free Software

Characteristics

i. Apache has 60+ percent

ii. Linux - 30% of IS market

iii. Proprietary SW

1. use permitted in exchange for $$$

2. Learning often prevented to prevent copying/competition

3. customization usually only within controlled parameters

4. no redistribution permitted so as to enable collection by owner

iv. Free SW

1. limit’s owners control

2. use for any purpose

3. study source code

4. adapt for own use

5. redistribute copies

6. make and distribute modifications

a. notification of changes

b. copyleft

7. identifying characteristic is cluster of user permitted, not absence of price (not talking free beer here)

v. anatomy of Free SW

1. Raymond, Moody

2. one ore more programmers write sw and release It on the net

3. others use, modify extend or test

4. mechanism for communicating, identifying and incorporating additions/patches into a common version

5. volunteers with different levels of commitment and influence on testing, fixing, and extending

Institutional framework

i. Property

1. property is institutional core of market and firm-based production

a. parameters of exclusion permit charging a price and controlling output of employees.

2. public domain/open access

a. dedication to domain makes sw free

b. allows anyone to use, modify and redistribute

c. weakness: ease of defection/reappropriation by downstream actors may cause demoralization and ex ante non-participation by peers

3. copyleft

a. cluster of licensing provisions that rely on the control property rights provide to make software “free” while protecting against some defections that an open-access commons approach permits

b. distributions is under same terms as original work was licensed

c. clear notifications of changes and attribution

d. covenants run with the program

i. if you break, you lose the license

e. gpl and open source definition do not discriminate between commercial and non-commercial sw

f. Major current questions: what counts as “modification”

4. Ads vs disads of copyleft v public domain

a. Reduces incentives to adopt a proprietary strategy

b. Reduces opportunities for “defection”

c. Retains the integrity of contributions as part of the peer-review process.

Commons-based peer-production

Peer production

i. Various sized collections of individuals

ii. Effectively produce information goods

iii. Without price signals or managerial commands

Human parallel to distributed computing?

i. Various @home projects

ii. Gnutella, freenet

Examples

i. Academic research

1. we select our projects

2. build on what others have done

3. distribute as widely as possible

ii. wikipedia

iii. mars crater analysis

iv. http://slashdot.org

v. google

1. they build web sites by figuring out what people link to…

vi. distribution

1. gnutella

2. distributed proofreading

vii.

Economic analysis

Motivation

i. OSS economics literature maps the diverse appropriation mechanisms

1. intrinsic (make me better off)

a. hedonic

b. community ethics

2. extrinsic

a. supply-side – human capital, reputation

b. demand-side – service contracts, widgets

ii. diverse motivations

1. care for different things other than money

iii. initial implications

1. where component contributions are too fine grained to transact around, peer production dominates (too small to do for money, great to do for greater good)

2. discussion made along lines of formula

iv. peer production limited not by total cost or complexity of project, but by

1. modularity (how man can participate)

2. granularity (min investment necessary)

3. cost of integration

v. value in economic terms

1. human capital difficult to specify/define (can’t price it)

2. by comparison to firms and markets peer-production has

a. information gains

i. human capital highly variable

1. time, task, mood, context, raw information materials. Project

ii. difficult to specify completely for either market or hierarchy control

iii. in peer-production agents self-identity for, and self-define tasks

b. allocation gains

i. best agent on optimum resources

vi. Commons problems

1. different kinds of commons have different solutions

2. information only a provisioning problem, not an allocation problem

3. primary concerns

a. defection through unilateral appropriate undermines intrinsic and extrinsic motivations

b. poor judgment of participants

c. providing the integration function

4. solutions

a. formal rules

b. tech like slash

c. moral/social norms

d. redundancy or avging out

e. iterative peer production of integration

f. reintroduction of market and hierarchy with low cost and no residual appropariate

Business models

Surfers

i. Cost reduction and improved quality

1. google

2. live 365

3. ibm, hp widgets

ii. translation into the price system

1. services/customization/massification

toolmakers

i. sourceforge, OSDN

ii. massive multiplayer games

thematic analysis

diverse motivations with complex relationships to money
peer-production, not OSS
anti-defection mechanisms

i. formal rules, tech restraints, social norms

business opportunities

i. integration without residual appropriation

ii. surfers and toolmakers

Thu, 03 Jul 2003 17:35:00 GMT

Business Method Patents

Revised plan: Fisher to talk on Patent law for first hour.

Most other countries in world are hestitating to follow American path on these patents.

5 million patents in world, 82% held in US, Japan and Europe

Will describe pertinent features of American law with some splash of differences found in Europe.

Utility Patents – 95% of US patents

Founded on section 101 – Inventions patentable
Discovery useful process or product
(there is a process patent on a cat exerciser – wiggling a laser point in front of a cat)
Also describes product-by-process patent (a fine sub-group of products)

Plant Patents

Eli Lilly explores effect of Rosy Periwinkle on diabetes
Ineffective there – but effective on leukemia
Increases remission rate on childhood leukemia
Doesn’t get patents – as property
Another extension

Plant Protection Act of 1930
Plant Variety Protection Act of 1970
1981 case (US Sup Ct) – said animal developed to eat oil – is patentable
2001 Pioneer Hi-Bred – now patentable under general utility patents

One backing away

Nuclear weapons were not patentable

Design Patents

Example of how extension process workes

Surgical procedures

· tradition

o Can patent drugs

o diagnostic and surgical procedures not patentable

· change

o Patent office started patents

o New technique for cataract surgery

o Doctor discovered non-linear cuts in line with shape of eyeball (ascertained optimal radius of curve) and sought patent protection

o He asked for fee to educate others

§ But doctors are immunized for liability, device makers liable (?? Need to rework)

Business Method Patents

· Most of 20^th century, couldn’t patent business methods

· 1990’s PTO starts granting BMP

· State Street Bank case challenged patentability of bm

o Pool mutual funds into partnership for tax benefits

o Have to track relative magnitude of shares

o So, sw program relatively tracked value

o And got patent

o Competitor sought declaratory judgement action

§ Court of Appeals

· Machine calculation as application of algorithm is patentable

· Repudiated business-methods exception to patentability

§ Thus, surge in patents

§ Drop off in rate since 2001

o Famous patents

§ Priceline

§ Single click shopping

· Amazon v. Barnes & Noble

§ Behavioral programming

· i.e. customizing web experience based on prior use – targeted ads

· Backlash

o Bounties

§ Bountyquest – rewards on prior art

o Litigation

§ Patent Requirements

· Subject-matter coverage

· Novel

· Non-obviousness

· Utility

· Enablement

§ Point of non-obviousness is point of difference in jurisdiction

· 1850 Hotchkiss case established that doctrine

· Cuno Brothers case (1941) “invention must show a flash of creative genius”

· After 1966 (graham) interpretation unstable

· Court of Appeals takes over in 1975 and stabilizes interpretation

· Across Europe and US standards of this doctrine are converging

· Tests

o What is scope and content of the prior art

o Differences between the prior art and claims

o Level of ordinary skill in the prior art

o Secondary (“objective”) factors

§ Commercial success

§ Long-felt, unsolved needs

§ Failure of others

§ Industry acquiescence

§ Suggestions in prior art

§ Fact that defendant chose to copy

· Apply Amazon

o E-commerce limited to shopping carts (scope and content)

o Dramatic step fwd (diff between prior art and claims)

o Very popular (success)

o Prior art taught against it

o Barnes copies

o Tightening standards

§ AIPA

· Prior use defense

· Study of BM by GAO

§ 2000 PTO guidelines

· hire more examiners

· updated databases

· mandatory second exam

§ proposed BM patent improvement act

· Formal opposition procedure

· Invalidity requires only preponderance of evidence

· Missed last 3

o European Initiatives

§ EPC articles prevent patenting BM

· Case law : BMs with a “technical aspect” or that solve a “technical problem” are patentable

§ Fall 2000: member countries decline to revise

· Power of Eurolinux alliance

§ Individual country consultations

§ You can get BMP in Europe

o Japan

§ Limits to industrially applicable

§ Limits patents liable to contravene public order, morality or pblic health

§ Firm on inventive step requirement

· Easiest to obtain in US – harder in other two

Theory

BMP are bad idea

Economic Perspectives

· Reward Theory

o Refer to responses to character of innovation from yesterday

o Suppose you invent new mousetrap

§ In absence of patent, copying and competition wil drive the price down close to marginal cost

§ w/o patent, you can price mouse trap – whatever you want

· ideally – perfect price discrimination (each use right at the point they would walk away)

· rational profit maximizing output strategy

o consumer has surplus in perceived value

o Those that will not pay that price – lose out

o Significance – some relatively poor people don’t get mouse traps (in terms of AIDS – millions die)

o Disadvantages of IPRS

§ Admin costs

§ Impede cumulative innovation

§ Deadweight loss associated with loss of consumer surplus

· Cumulative Inventions

o Primary invention

o Others build, improving on first

§ When reg’d by patents the problem of Rent dissipation (i.e. more people than socially optimal rush to reach the patent first)

· E.g. Social welfare perspective says pay one good team to focusing on that task

· Reward has multiple teams pursuing

· Happens at primary and secondary level as well as alternative technologies

§ Some economists offer alternatives to reduce this multiplicity

· Kitch proposal

o Grant to pioneering inventions – broad scope – enabling pioneers the process of building improvements

· Mergess

o Broad patents create

§ Satisficing behavior

§ Broad patent for pioneer will exacerbate rush to pioneer

§ So, narrow patents

o But that creates rent dissipation at secondary level

Now, back to BMP

Why bad? (another form of government regulation)

· Little evidence that patents stimulate business method innovation

o You do it to get ahead of competition

· Has serious disadvantages

o High transaction costs

o Consumers blocked out

o Impediments to innovation

· BMP should be repudiated

Audience: BMP seems to be non-rivalrous in a market sense. You would be more efficient in that business without protection – you don’t take away their market – you simple allow the entire market to become more efficient

[…]

Netflix got a patent on method for cd rental via mail. But ebay lost their case defending their auction methods.

But how do you define a business method patent

Roughly PTO section 705 – but that is clumsy

Would have to return to position before states v. bank

Case by case to test

….

Thu, 03 Jul 2003 13:46:29 GMT

Summaries from yesterday at ILAW

Frank Field does a great job linking conversations related to the presentations yesterday. And, he captured the last part of the last discussion when my note taking tailed off...

Copyfight captures quotes from Zittrain and others. There are some priceless one liners there.

Hornik considers the validity of Lessig's comment that we "are on the road to hell" with regards to the future of e2e networks.

Thu, 03 Jul 2003 00:35:20 GMT

Application : Music

The future of entertainment : music

Professor Charles Nesson

Professor Jonathan Zittrain

Leslie Vadasz, director emeritus, Intel Corp.

Fred von Lohmann, EFF

Defending the current business model
Towards new business models

Fred:

EFF wants to preserve the rights you had before the electronic world came along

Leslie:

Had testified in front of Hollings about protecting digital content. Hollings didn’t like what he said.

Nesson:

Problems of going towards a model like Fisher’s are immense. Interests will fight like hell to prevent such a plan.

Z: Can we agree on framework that music industry should enjoy rights they had before the internet?

Fred:

Artists should. Recording Industry should not.

Companies are people too. Aren’t those rights being infringed more than ever?

Fred:

As matter of black letter copyright law – that is right. But, the law has changed so much via accident of technology as computers are able to copy things.

Is harm related to loss on bottom line

Fred:

Some of their claims are highly exaggerated. (e.g. units shipped has declined because they decided to stop selling cd singles)

The downturn is not as big as they would have you believe.

Movie industry, in contrast, is enjoying its most prosperous time. Intel and others would love to trade numbers with the recording industry.

I would change the law to reflect the reality that 60 million Americans are using file sharing sw (wait a minute, that’s almost everyone accessing the internet, isn’t it? Are his numbers sane?)

Can you sue this problem into submission?

It’s part of the problem.

Usually, reaction is there are too many people to sue. But, if you discriminate, you will find the source, the headwaters of those that are the super nodes of the illegal distribution (In Colin Powell’s terms – you find the head, cut it off and kill it)

Fred:

But it doesn’t stay static. If the tech stood still, maybe.

1) Verizon is in US

2) Vast majority of p2p folks are outside US

3) So, you can’t stop.

4) An effort to get European ISP’s to cooperate will run into privacy issues

5) And, users take their own technical counter measures (like proxies)

Blubster from cnet.com – anonymous p2p

Leslie

Go to public wifi spots and download – then that is anonymous

…

Fred

P2p is smarter than most counter measure. But, collateral damage that piles up may be severe. E.g. ISP has to give up data on its users to anyone that asks.

Hey, Verizon notifies you that someone is looking for your data

Fred

But they don’t have to do that

Nesson

Let me take that argument all the way. If you are the music or movie industry – you won’t rest till all threats are gone. One of the items of collateral damage is the alteration of the basic architecture of the net.

Fred

Collateral damage is the main concern.

….

Those powerful interests will press for more power . So alternative models like Fisher’s are attractive.

Let’s ask Leslie as a technologist how readily can we adapt the technology so we don’t have a music industry having to sue everyone in sight.

Leslie

I am not speaking for Intel. I don’t think we stop anything.

Trusted Computing Platform Alliance – so what is trusted computing?

Leslie

A machine used in a way that if you send a file – no one in between can access a file without your permission. Gives you privacy in open network.

So, trusted alliance is developing blubster?

Leslie

You can’t talk or question what they do until you have enough information to judge what they are doing.

I thought securing information against prying eyes was about producing a platform of unified hw/sw so that one could trust it would behave in certain ways.

Leslie

You are putting me in a position to defend something I know nothing about. But if I only want you to read the book that I wrote that should be my right

Isn’t that creative commons?

Fred

Such a system would be interesting. But that is not what trusted computing is. We have talked to the alliance about their initiatives - All should learn more about trusted computing – large story for next 5 years – IBM pcs have relevant hw installed – It allows 1) you trust your own computer – like trust a virus has not been introduced 2) whether or not others can trust but MS never intended the system to defend against hw attacks from people with physical access to these machine.

…

Let’s assume there are people able to hack their hw- and they post their find on p2p using the same trusted computing techs- at that moment for every other user – that book that was protected becomes available. A trusted PC will still run unlabeled stuff.

So, trusted computing is no threat to free ware?

Fred

The threat is lower than most people think

Trusted computer has other more interesting questions. If all major banks demand you install following sw on your platform – all much power do you have to resist that?

…

TC is very Matrix like…

Come on taxi cab meters are trusted systems?

Fred

Free the general purpose computer.

Leslie

When you have an open environment like the internet – you have to be able to provide tech to do that.

…
Nesson

Question of University role vis-à-vis Verizon is interesting. They are supposedly in moral position to encourage students to obey the law. Plus they have user agreements that make it a contractual obligation. Granted they don’t have a monetary interest.

Suppose someone offered as a service to look at shared folders in university domain and send nice letters to those offenders to cleanse the network. A university’s reaction is initially no – counter to culture of university – not in business to police students. The problem is within the rights owners to take up with the infringers.

But offer a discount to the iTune service and perhaps you shift that population to a norm of following the law.

…

Q :

What of developing countries that don’t have capital to pay for copyright? Course, US didn’t protect other countries’ interest for first 150 years.

Fred:

Talks of commission on intellectual property rights

A condition of free trade with US was Jordan putting in place a DMCA

Nesson

Last few years have been Information Imperialism (locking govts and others that in order to run technologies you need to keep paying copyright) hmm more tomorrow

Audience

All these copyrights are like machine of terror…. Business Software Alliance in poland acts like terrorists – they go with police to firms and audit the sw. And, the police don’t know what to do – and specialists go looking for who knows what… that is example of wrong way to do intellectual property rights.

….

Need to check other sites for notes – I lost some here

Wed, 02 Jul 2003 22:34:05 GMT

Content Market

Professor Lawrence Lessig, Stanford Law School

Lessig:

If synthesize technology, law and market together you may see a change in the market otherwise not seen directly.

You are now ready to be “brainwashed” to accept this concept of free culture (ok, he’s jokin)

Free markets, free will, free willie…

But we are not saying free in terms of cost but in terms of characterization of the ecosystem (free trade vs free beer)

Am not endorsing world where artists don’t get paid

…

1928 – Walt Disney

1. Created steamboat willie

a. Gave birth to Mickey Mouse

b. Which gets us to Disney Co

Buster Keaton (1928) created Steamboat Bill which is the source of Steamboat Willie

This is a kind of creativity – walt Disney creativity – always parroting feature length films – always building upon work in public domain.

Free culture is the freedom to take change and release adaptations of the culture around you…

Speaks of “dojinshi” copycat comics in Japan – and the creativity it drives

Why was Walt Disney creativity possible?

1. Legal Reason

a. Duration – copyright supposed to be a limited time

b. Important thing to focus on – public domain is the “lawyer free zone” where you don’t need to ask anyone what to do with that culture.

c. Before 1774 in anlgo American tradition – copyrights were perpetual – House of Lords determined that terms were limited

d. American constitution then replicated that idea that at some moment the item would pass into public domain

e. Vast majority of work was public domain from time of creation as no one chose to exercise their right

f. Avg copyright term has tripled in last 30 years (1973 – 28 years with a renewable term – 32.2 years avg) today it is maximum of 95 (courtesy of Sonny Bono Copyright Term Exension)

g. Since copyrights don’t have to be registered – you don’t even know where to start to get permission to modify a work

2. Technology

a. Reach of copyright

i. Regulates techs that copies

ii. Fair use

1. quote

iii. Enter Internet

1. now every act is a copy

2. Copyright Office says you can have an action against you for using a work without owner’s permission.

iv. Before Internet

1. Law was controlling (i.e. a Judge has to look at complaint)

v. With internet –

1. You argue with the machine (controls, etc) – regulated by the code that gives you access to the work

vi. Talks of aibopet.com –

1. teach you Aibo jazz

2. But, the DMCA says the dog can’t dance

3. so you have law protecting code protecting law

3. Market change

a. Concentration (extraordinary)

i. Copyright is a monopoly

ii. Framers limited power of that monopoly

iii. But the pettiness has changed

1. Size – 80% of music by 5 companies

a. 70% of radio by 4

b. 80% of newspaper

c. only .5% foreign films in market

2. scope

a. 1969 – Lear – Archie Bunker

b. ABC wanted him to tone it down

c. He got racier every time

d. So he took it to CBS

e. That was artistic control rule at that time separated content from conduit

f. 1994 a change in rules – abolished Fin-Syn rules

i. Valenti fought (get those quotes) in congressional testimony saying the customer would lose.

g. FCC relaxed ownership rules on media

4. Never have a fewer number of actors exercised more control over development of culture. So no one can do to Disney what Disney did to the Brothers Grimm

5. This is insane, unintended consequence of the confluence of these changes – 200 years of lobbyists pushing on one side of equation.

6. Property v. piracy

a. 1995 Eldred starts building free library

b. 1998 Sonny Bono Act took some works out of domain

c. gave birth Eldred v. Ashcroft

d. Court said up to congress

7. Two ideas for alternatives

a. ALL

b. NONE

c. But there is room for SOME

d. Solving for the extremes denies SOME

e. Creative Commons provides for the middle (SOME)

8. Defending “fair use” is bad way of understanding what we want.

a. Ought to discuss free use.

Fisher

Another proposal in the same spirit of moderation and aspiration to craft a legal system that simultaneously respects legitimate interests of creators while affording maximum oppties for consumers to access it and exercise their creativity.

Specific target is music and film industries.

Remember, evolution of legal system has been interpreted to impede benefits of internet distribution of digital entertainment.

A couple of ways to look at

1. To enhance property rights

2. Regulate the industry

3. An alternative compensation system

Governments have experimented on managing problem of underproduction of public goods

1. Government provides it (armed forces, light houses)

2. Government subsidizes it (e.g. NSF)

3. Government issues prizes (reward system for atomic energy inventions)

4. Government confers monopoly power on producers

a. e.g. 19^th c. toll roads, intellectual-property rights

5. Govt assists private parties in increasing “excludability”

a. Trade-secret law

b. Anti-circumvention law

Strategy 4 and 5 are not working any longer as mechanisms

Recommendation is to reconsider merits of strategy 3

How work? (details at www.tfisher.org )

1. Register

a. Copyright owners get unique id #

b. Unique id # inserted into file name

c. Application designates

i. Any other registered digital recordings incorporated into the work

ii. Duration of the incorporated work

d. Registration fee

2. Taxation

a. Provide creators full social surplus of their efforts

b. Fairness

c. Make creators, as a group, whole

d. Preserve a flourishing entertainment culture

So what would that cost

1. Music Industry ??? billion (taking from published estimates of losses

2. Film - $1.7 billion

3. Admin costs

4. Total 2.4 billion

So he runs tax tables on cds, internet access, etc to pay for this

3. Count consumption

a. Webcast play lists

b. Count downloads

c. P2p systems county sharing registration numbers

d. Surveys

e. Sales of pre-recorded cds

4. Payment

a. Distribute money in proportion with frequency that each creator has works consumed

5. Lift copyright system and DMCA

Who gets hurt?

1. Manufacturers

2. Distributors

3. Retailers

4. Record Companies and Studios?? Only if they don’t change business model

Demerits of plan

1. Distortions and Cross-subsidies

2. Giving a govt agency considerable power