Monday, February 26, 2007

Court from India does not buy eBay arguments

Some time ago (almost a year ago) I wrote about how ridicule was eBay's claim of being only a venue or, in the European Electronic Commerce Directive language, a mere conduit, due to be an active part of each transaction and getting a percentage of it. However, for reasons only known to judges' pillows and legislators wallets, eBay had succeeded in getting away with being the instrument used to trade counterfeited goods at monumental scale, until now. J.K. Rowling and Warner Bros have obtained an injunction from a judge in India in the action they brought in 2004 when books of Harry Potter stories were put up for sale on, the old name for eBay’s India operation. The analysis of the writer and publisher's lawyers as presented in The Times of London is similar to that of last year's blog, but not because I am that insightful but because it is obvious: eBay is less a mere venue than Grokster was vicariously liable and for some inexplicable reason the later was shut down and the former is thriving...

Thursday, February 22, 2007

Blogger jailed for denouncing terrorism in an Ally on the War on Terror

The Egyptian judgement condemning Abdel Karim Nabil Suleiman to 4 years of prison for expressing his opinions in his blog has received wide coverage on the international press, and it shows, again, the lack of uniformity in rules affecting freedom of expression on the net and the dubious commitment of the US government to spreading democracy. The Egyptian blogger's crime consisted of denouncing a Muslim university for promoting radical ideas, comparing the Egyptian president to the Pharaohs (for his dictatorial manners) and saying that one of the companions of the prophet Muhammad was a terrorist. While it clearly can be argued that some of those comments are offensive to some people, the right to say what people think, freely, is supposed to be an essential part of a democratic society, which the current US administration supposedly is embarked on promoting (especially in the Middle East). In order to carry out such a noble task, the American government looks for allies in different regions and one of them is Egypt. Furthermore, the blog makes some explicit references to people promoting some forms of radicalisation that leads to terrorism, and the US has kidnapped and sent people to detention facilities or to be tortured abroad for less than what Suleiman denounces.
To be fair with the US Administration, the ambivalence and almost hypocrisy is not only American. During last November, at the Internet Governance Forum held in Athens, there were many voices demanding a censorship-free Internet, but it is interesting to see that some of the same voices will be probably heard in the future 4th IGF, which will take place in Egypt with Suleiman probably still in jail. Will I also forget this blog and that blogger when going to Cairo in 2009?

Wednesday, February 21, 2007

Conference of Globalization, Technology and Development

The preparations for the conference on Globalization, Technology and Development that we are organizing with Webster University and the IPSA Research Committees 4 and 35 are well under way and we have accepted 25 papers coming from 15 countries. We will have to see whether we have any cancellations, but the event promises to be an exiting one. Today Julia's given some touches to the website and soon we will have more information there (the "art" in the logo is mine, so nothing to blame on her).

Monday, February 19, 2007

Probably overblown time issue shows deeper problem

There are plenty of reports about the new "time bug" affecting computers using software produced before 2005, when the US Congress passed a law requiring that daylight-saving time should start three weeks earlier and end one week later, from 2007. So, since computers and other devices automatically correct their time by using a date that has been programmed, those devices using pre-2005's law dates would not change to daylight-saving time on, strangely enough, time. While the impact that the situation may actually have on people's lives and business' functioning is to be seen (and probably going no further than a nuisance), the implicants from the solutions are far reaching.
In order to solve the problem, if somebody is part of the alleged 97% market share that Microsoft Windows has on operating systems (2006 data), the only thing it would need to do is to download the forthcoming patch to be released tomorrow (Tuesday, February 20). However, that is only true if the user is between those using Windows XP Sever Pack 2, because for anything older Microsoft does not provide updates or patches any more, in accordance with its Support Lifecycle Policy. While it can be argued that the policy does not constitute an unfair term (it also can be argued the opposite and probably with more serious legal support) due to the life cycle of the product, the same argument contradicts completely the level of protection that software gets under different categories of intellectual property rights. Since it seems that it was Microsoft founder the one that started the comparison with the automobile, it is worth to pursue the same line and understand support and updates as a car service and repairs. Needles to say that when a security issue is discovered, the position of the software makers in general is completely untenable because the bug or mistake does not constitute, paraphrasing the law of tort, a novus actus. The damage or potential damage is caused by a mistake in the original programming and it is not the result of a change in the rules as this new time-bug seems to be (the previous paragraph does not ignore court rulings on the contrary, it just argues that those court rulings are plainly wrong and only justified by judges following the ill-conceived economic analysis of the law that incorrectly implies that it is possible to know with certainty the economic impact of a decision. Economic analysis of the law is a very interesting and useful tool for academic and policy making analysis, but too base judicial decisions on it is simply not in accordance with the legal system of most modern societies, thus wrong). However, in order to follow the car example, we can focus on supervening causes (those that were not there when the product was produced, as the example of the Congress-induced time-bug is).
There was some controversy when Microsoft first announced that it was going to stop supporting and updating old versions of Windows, and that it would have for limited time (five years) a paid service to that respect, being the strategy clearly directed to make users to upgrade to the following versions of the popular operating system. Again, it would not be very difficult to show with both legislation and case law that such a change of the original terms of the contract are not necessary legal and probably violating too many sections of consumer protection laws of too many jurisdictions, but experience has shown that the Redmond's company has enough power to convince judges and policy makers otherwise. On the other hand, and keeping with the car analogy, it can be said that when a car needs servicing or repairing the manufacturer is not expected to carry out the service or the repairs for free (unless under guarantee, but that is not compulsory and it is offered normally as a selling strategy). Thus, software producers paid-support should be normal and acceptable. However, although it is true that it might void the guarantee, there is no provision in the purchase of a car prohibiting the use of a third party mechanic. Furthermore, there is no legislation making illegal to look for such a third party solution or repair, and there is an extended and flourishing market of repair shops and third party brand parts. And that is the problem with the "lifecycle policies" for software.
It is illegal to look for a third party "repair" when the original manufacturer stops providing support and in some instances it could be even a criminal offence to do so. How can be justified to protect software with copyright that gives 95 years of protection in the US (if the copyright holder is a company) or with a patent that gives 20 years of protection when , the same companies recognize that the life cycle of the product is, at the very most (yes, is a literary licence I have taken), ten years? So it seems very explicit that the law that is supposed to "promote the progress of science and useful arts" actually only promotes monopolization and monopolistic profits, which the state is supposed to try to avoid.

Thursday, February 15, 2007

Child protection what?

The new trend of toys that can be connected to Internet, as reported by, brings back the issue of the problems presented by the lack of broad and consistent privacy and data protection in the US. While the US keeps repeating the old and outdated discourse that self regulation is the best way of creating an e-business friendly environment, the evidence keeps suggesting that lack of consumers' confidence over the way their personal information is treated is the main factor hampering further development of e-commerce and self regulation does nothing to boost that confidence. Going back to the toys' story, most of the websites to which the kids will be directed collect personal identifiable information, and in most cases only when the kid is below 13 years old the parents' consent is required. Still, when the parents' consent is required, the reasons for which the personal identifiable data can be used are in state of flux, because the companies normally "reserve[] the right to modify [the] policy" "in order to be in compliance with the legal requirements or to provide better customer service [emphasis added]", which means whenever they want. Isn't time that in this side of the Atlantic people understand that to regulate is not to go against businesses but to ensure a more secure and predictable environment for customers and business too? I am looking forward to hearing what Veronica is going to say about this in her presentation on the Role of the State, parents and technology in the protection of children and teenagers in Internet to take place during the Globalization, Technology and Development conference here in Saint Louis next April.