Thursday, February 26, 2009

McScience, courts of law and the valuation of IT companies

The “news” that a top neuroscientist linked the use of some social websites to children’s shortened attention spans, encouragement of instant gratification and young people becoming more self-centred, spread around the world like a bush fire but, is there any substance behind that claim or we are in the presence of yet another instance of irresponsible attention seeking by a “supposedly” top scientist, which is permitted (and encouraged by courts) and could have impact on peoples lives and companies valuations?
During a short period of studies in the US during the early 1990s I came across an expression that I have always treasured for being able to synthesise a complex idea in a word: a McPaper. Some students used it when they had written a paper that had been done quickly and it was not of a good quality. In that context, I think that is fair to say that, as presented, the science behind the article’s claim could/should be catalogued as McScience.
The article that started the media frenzy on the topic does not resist the most minimum analysis: if any of my undergraduate students submit a paper with that quality would fail automatically. The article quotes Baroness Greenfield saying that her “fear is that these technologies are infantilising the brain into the state of small children”, but does not offer any evidence of suggestion of any proper study on the topic. Goes further in the transvestite of science by saying that “Lady Greenfield told the Lords a teacher of 30 years had told her she had noticed a sharp decline in the ability of her pupils to understand others”…are we going to make such a general statement about the implications of the use of a technology based on the opinion of one teacher?! Have the scientific standards slipped that low?! While anecdotal evidence can be used to highlight a fact already proven through extensive investigations and is used in presentations to give a sense of connection with the reality to very arid topics, to base a conclusion on anecdotal evidence seems an extreme violation of any form of research methodology rules. Some of the other claims are statements of fact that don’t add much to the science behind the general claim. The fact that “[s]atellite navigation systems have negated the need to decipher maps” is as true as saying that the existence of off the shelf knives have negated the need to know how to carve a stone to make a cutting tool…that is what technology does: it allows you to free mental and material resources and use them in something that is more profitable or gives you more pleasure…
But these sort of scientist have gotten a level of recognition that make them and others believe that they are beyond the rules of normal scientific standards, and the courts have played a part in that. For years courts have used these renowned scientists as expert witnesses without paying much attention to the real science behind their claims, only focusing on the “status” of the expert, aiding and abetting several instances of miscarriage of justice. The situation of Professor Sir Roy Meadow is the one that first comes to mind when courts are plainly complicit in allowing these seudo-scientist to carry on with their activities that leave a trail of pain and suffering while rewarding them with the fame and the honours. The first part of the story begins with a paper where this person puts forward a theory that there are people that hurt others, specially their children, in order to get attention from the medical personnel, followed by a trail of not independently corroborated evidence showing that his theory is correct and ending in becoming the preferred expert witness for the prosecution in cases where children accidents or death were suspected of being caused by their parents (suspicion raised by following Meadows own theories). The second part of the story is that the very common sense conclusion that his theories were unsubstantiated became finally accepted (the first time I heard the idea that two cot deaths in a family pointed to murder I thought that it should actually point to a genetic or environmental issue, and couldn’t not believe that people were sent to jail based in such weird theory) and that it was shown in court that the statistical evidence used by Meadows was appallingly flawed. The third and shameful part is that the General Medical Council struck him of his license to practice medicine and in two decisions that cast serious doubts into the suitability and capacity of some English judges, the High Court first and the Court of Appeal later ruled that that Meadow's misconduct was not sufficiently serious to merit the punishment which he had received (even it was said in the House of Lords that Meadows work was “one of the most pernicious and ill-founded theories to have gained currency in childcare and social services in the past 10 to 15 years. It is a theory without science. There is no body of peer-reviewed research to underpin MSbP. It rests instead on the assertions of its inventor. When challenged to produce his research papers to justify his original findings, the inventor of MSbP stated, if you please, that he had destroyed them"). In order to decide how serious the misconduct was, it is important to remember that it was based on his expert testimony that Sally Clark was convicted of murdering her two children and, after courts finally understood that they were punishing the victim, and that she then died of alcoholic poisoning due to never recovering for the loss of her children and the subsequent jail time.
Then you have the case of the MMR saga/fiasco. There, Andrew Wakefield claimed to have found a link between the MMR vaccine and autism. The claim contradicts every serious study on the topic and due to its publication millions have been spent in testing its veracity. The claim has affected public policy in certain places and, worst of all, it has lead to a sudden drop in the percentage of children receiving the vaccine, which in turn resulted in the reappearance of measles as a common disease in England. Most scientists on the topic have discredited the theory, there seems to be evidence that the data to support the claim was manipulated and the GMC has presented allegations of serious professional misconduct. To put some judicial weight into the matter, the US Special Court of Federal Claims ruled that the allegations that the combined measles, mumps and rubella vaccine contributed to autism were "speculative and unpersuasive" and that "the weight of scientific research and authority" pointing to the opposite was "simply more persuasive on nearly every point in contention." An issue that cannot escape the analysis is the claim that Wakefield received major funding from trial lawyers seeking evidence to sue the vaccine makers and that he previously filed for a patent on a rival vaccine…and the courts? While a suit for professional negligence, in principle viable because Wakefield failed to “act in accordance with a practice which is accepted as proper by a responsible body of men schooled in the particular art” (Bolam v Friern Hospital Management Committee 1957) could only filled but those that suffer a damage and that had enough proximity (the parents of the kids that died of the disease are too remote to sue), if the claims about the funding and rent-seeking through the patent are true, there is a strong argument to ask the CPS to look into s2 of the Fraud Act 2006. But following the very strange decisions in the Meadows case, one can wonder whether the judges would find that creating a scare that resulted in the reappeareance of an almost forgoten disease for gain could be consider serious enough...
At the same time that all this attention/rent-seeking is taking place, companies are battling against very tough markets, which may make them more succeptible to being affected by negative rumours and ill-conceived regulation. If the response to the increase of obesity in children was to ban certain type of food’s advertisement during children pogrammes on TV, it is not far-fetched to imagine that some minister looking for publicity or just not having a clue what he/she is doing (there are plenty of those around lately), would propose some sort of regulatory framework or information campaing so people, especially youngsers, use social networking sites less than now. This would affect the market size of these companies and, just before going through an IPO, that could be very damaging for any of the companies’ valuation…would the Baroness be liable in anyway in such eventuality if the link that she fears cannot be seriously proven? Would judges be held into account for decisions where the status of the person in question is more important than the substance of what that person claims and than the damage that the person’s irresponsability causes to the public and or companies? It is time that courts forget much of the snobbery that comes with the titles and start using the same legal principles for everyone, remembering that with more honours and fame comes more responsibility…

Monday, February 16, 2009

What a joke! A comedian wanting copyright on performances…

An English comedian recognized breaking intentionally a member of the audience’s mobile phone and added that he didn’t regret it because people were “stealing” comedians’ jokes and they should be protected as films. It is difficult to even start the analysis when somebody claims a right to commit a crime, criminal damage, to protect a right that, in principle, does not have. The strict, basic legal issue, is that copyright protects “(a) original literary, dramatic, musical or artistic works, (b) sound recordings, films, broadcasts or cable programmes, and (c) the typographical arrangement of published editions” (Part 1, Chapter 1, S 1 of Copyright, Designs and Patents Act 1988 (c. 48)), but “does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise” (ibid, s3.2) While a performance can attract a form of copyright for qualified individuals and qualified acts, this performance needs to be one of a work already subject to copyright protection. So, what this particular comedian needs to do instead of smashing the mobile phone of a member of the audience who has said that it was texting and not filming him, is to use the law instead of easily bashing it…just write down the jokes, which automatically will give you copyright protection in any of the members of the Berne Convention and or WTO-TRIPS, and then, when performing in England, the performance will be protected too…
With regard to the claim that people steal jokes, the claim is not new and it should be taken seriously, so if it can be shown that a particular comedian has been the first to write down or fix in any other tangible medium of expression a particular joke that comedian should get copyright for it. However, comedians need to be ready to pay royalties if other people, including people from other countries, can show that they obtained a copyright before them…and I have the feeling that it will be very difficult for a comedian to show that a particular joke has been created by him/her and that it does not constitute either a copy or a derivation of an older joke. In the same way that Borges in his This Craft of Verse claimed that all metaphors could be reduced to a very short list of situations and that most of them were variations of those few ones, it can be argued that jokes follow the same pattern. If that is the case, it is disputable whether changing names and nationalities, for example, in a joke would give the necessary degree of originality to be afforded copyright protection. What probably comedians need to realize is that people pays to see them because they are funny not because their jokes are terribly original (and in most case probably aren’t) and they also take some time out of their “busy” lives to think before they act, because if they really push the issue that their “ideas” should be protected (without knowing it they might be asking for that) they may be asking to extend the law of copyright in a direction that would leave them out of work…if their “ideas” get protection they will need to prove that they are theirs in the first place and that they have not been build upon other people’s ideas, which is one of the pillars of comedy (also known as parody).

In sum, no excuse to commit a crime (I don’t understand how the chairman of the bench had “some sympathy with the issue”) and be careful what you ask for…you may get it!

Monday, February 09, 2009

The Obama poster and the fair use fairy tales

Some minor stir has been caused by the news that the famous “hope” Obama poster has been heavily based on a photography for which AP seems to have copyright. The fastest given, most common and probably most desirable answer has been that the work is protected by the fair use doctrine. Being a staunch supporter of the expansion of the fair use doctrine at international level and having put my fingers in the ORG’s proposal for the post-Gowers copyright exceptions, I have been inclined to believe that fair use would cover the work in question, but the fact is that law is not a matter of faith and claiming wrongly a usually affirmative and complete defence can actually undermine its standing. So, is it really fair use?

Before going into the intricacies of the American fair use doctrine, it is necessary to see whether the poster would constitute an infringement act at all. The photo in question was taken by Manny Garcia, a freenlance photographer under contract (at that moment) with AP, which seems to confer the copyright over the photo to Associated Press. As the holder of the copyright (yes, although used in courts and statutes, owner is not the correct word) AP is entitled to the exclusive right to “prepare derivative works based upon the copyrighted work” 17 U.S.C. § 106 (2) and a previous section of the same Title 17 Chapter 1 of the US code defines derivative work as

a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”

The artist responsible for the Obama poster, Shepard Fairey, acknowledged that it used the AP photo as basis for his poster but until it was questioned by the press and the AP lawyers it seemed to have forgotten about to crediting them with it. By looking to both the poster and the photo it seems quite straight forward that the poster is a derivative work of the photo (if in doubt look at the eyes), which would imply that it infringes AP copyright unless a form of defence can be found. Most commentators have jumped to the conclusion that we are in front of a clear case of fair use, which would provide with the needed defence. But I am finding trouble to find fair use here…

The doctrine of fair use has been also codified in 17 USC §107 and it refers to the fact that using a work under copyright, “including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright”, to then explain the factors to take into consideration to determine the existence of fair include:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Most reporters and/or scholars have used these factors to say that, taking into account that the artist claims to not have received any money for the poster (factor 1), that it was used for political purposes (factor 2 with the added value that political speech is greatly protected), there is clear case of fair use, not mentioning that it seems that in factors 3 and 4 the poster would perform quite badly (the poster seems to reproduce almost exactly the photo changing the shading and “cartoonizing” it and it results very difficult to imagine that the AP photo would have any value in the derivative work’s market beyond the poster itself). However, what the analysts seem to overlook is that the four factors are contingent to the previous paragraphs, which clearly and undoubtedly point towards the purpose of the work: “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”. While it is true that the inclusion of “such as” implies that the list is not exclusive, it also entails that the purpose relate to the ones described, and, understanding the importance of the use of an image for political purposes and the just bias that courts have to protect politically oriented speech, it is not clear how using a copyrighted work to produce a poster that shoots a person to fame and results in exhibitions and other niceties qualify as “such as“ uses.

Here somebody easily could point out that the US Supreme Court has widely spoken about the issue and that the key component is the transformativeness of the work and whether it satisfies a public goal, so the issue is one of fact, how transformative the work actually is, and the public good that serves (getting a president in office seems good enough to me…). The problem with the transformativeness test is that simply changes the nature of the statutory provision and if those that defend fair use and oppose the continuous expansion of intellectual property rights rightfully complain every time that the courts make things up to benefit the copyright or patent holders, as in the Grokster case, they cannot now support the same type of legal transvestite because it fits their ideology. The US Supreme Court in Campbell v. Acuff-Rose Music, Inc. (1994) referred to the importance of transformativeness in its fair use analysis of the defendant’s parody and explained that transformativeness was the new insight that readers, listeners, or viewers gain from the parodic treatment of the original work. But the Court expressly stated that there the purpose was to show something about the original work (in that case the banality of the original song). And that is what analysts seem to overlook.

The statute is quite plain and to find fair use requires to focus on the purpose, the type of work, how big and important is the part used and the impact on the market value of the work, without making any reference to the degree of transformation. Furthermore, it can be clearly argued that the statute follows the correct approach because if the degree of transformation is what it needs to be measured, the fair use defence would negate the existence of derivative works. There is far more transformativeness in making a film out of a book than in making a poster that exactly traces a photography and changes the shades and some colour, although few would argue against the right of the copyright holder to decide who, when and how uses his/her written work to create a film. Even one step further, if the first two factors take an overarching dimension, in the case of photograph of politicians copyright would not exist because in a democratic society getting to know the future or potential leaders has a value that supersedes any private interest on the photo.

As in many cases, it will be up to courts to decide (if it reaches there) and it deserves a further analysis, but, while it would be good if fair use is found it does not seem helpful when all the commentators jump into conclusions just because ideologically suits them…

Sunday, February 01, 2009

Global Game Jam…approaching the deadline

We are at the Accelerator in the final straight of Global Game Jam 2009, London’s gig. After two days of thinking, teaming and programming the eight teams are putting the final touches to their games. We have aquatic themed games as The Deep, where Fish Don’t Flock is capturing plankton while venturing into the depths of Flash programming. The team Monochrome is not hiding its head in the sand and is making the Shadow of the Ostrich run through the savannas before the sunset leaves it without light and shadow. Let’s be Cheer has a cheerful view of how even being in between worlds loves put a rosy view to an accident prone bride, in its La Vie en Rose. The team Neon takes the Downfall with a quite sofisticated take on the theme and Dense is putting the last touches on a quite interesting idea about how to navigate a maze through the negative space, the emptiness, that Ma seems to represent. Team Ninja jumps into action with Trampoline Ninja and Exit 8 tells you to Inflate or Die. Team Jez has no name for its problem thrower, while the supreme leader, Fiona, tries to get the games tested before the moment of the truth…which is approaching at warp speed.