Tuesday, July 31, 2007

Understanding why the tubes

The news that the house of US Senator Ted Stevens of Alaska has been raided by the FBI may shed some light into the discussions that took place in a US Senate Committee a little more than a year ago, when the same senator called the Internet a "series of tubes". During those discussions, Senator Stevens opposed a measure prohibiting pricing differently Internet transmissions according to the content or the sender of the content, also known as Internet neutrality, and the Senator's committee killed the measure. The “series of tubes” metaphor was popularized and ridiculed by John Steward in his Daily Show, who linked it also with the prohibition of gambling online, excepting state lotteries and horse racing. If we follow what other bloggers (even Republicans) have been saying about Senator Stevens’ practices, it seem now quite understandable that somebody with probably no knowledge whatsoever in the topic used his power to oppose measures that might have precluded certain companies from boosting their already huge profits and make exceptions for those who also have deep pockets: normal users and American citizens don't have the same resources to pay for campaigns and costly extensions to the Senator house and other associates, while those companies have (not surprinsingly, Senator Stevens was the "secret senator" that put a hold on a bill the would require the government to publish online a database of federal spending). While it can be argued that the practice is no monopoly of Senator Stevens and his friends in Alaska (according to the redstate.com two thirds of Alaska’s federal representatives are under an FBI investigation), in this case the well known corruption in the American Congress (sorry, north the Rio Grande is called lobbying) also affects the rest of the world and the development of the information society. Since the US Government has repeatedly expressed its right to interfere in the affairs of sovereign countries, it is fair for the non-American citizens to have a say in political processes that have impact beyond the US. The lack of Internet neutrality would affect everyone within and beyond the US and, while the different pricing might have basis for justification, the issue cannot be decided by the size of the check that certain US members of Congress receive from the interested parties...(while a year ago I mentioned vested interests it seemed that it was not correct to cast a shadow of doubt over the longest serving Republican senator, but now res ipsa loquitur)

Sunday, July 29, 2007

Pornography on donated laptops, and privacy?

Reuters reports that "Nigerian schoolchildren who received laptops from a U.S. aid organisation have used them to explore pornographic sites on the Internet" and that filters will be installed. Not too much information is available about the conditions of the project, but to make a news out of that seems a little odd. That teenagers try and actually access pornography is something that, although not to be encouraged, quite normal (I personally find pornography stupid and exploitative, but I probably had different ideas when a teen). What probably is not quite normal and good for the future of those teenagers self esteem and trust in the established rules, is the fact that somebody went through the pages they had surfed, unless of course they were previously informed about that. It is also expected that those teen were trained and educated about the uses of Internet and whether accessing pornography was permitted or legal...or the whole program is just part of a cultural integration where the morals of certain American sectors are to be transferred to people around the world?

Thursday, July 26, 2007

Some IP questions on Second Life

These days I’ve been far from this blog because I’ve devoted most of my time to finding a new house, moving and writing some papers about Second Life. While I still quite not understand why some people would spend a lot of time and money in the “in-world”, unless you are using it to carry out a business or some sort of research, I assume that it is because I still have not managed the basics of it. Until now I simple don’t understand when the guides, books and inhabitants of Second Life say that there you can be “whoever and whatever you want to be” because I am who I want to be and I really enjoy doing what I do…but again, it should be me who doesn’t get it. However, virtual realities in general and Second Life in particular raise a very wide array of legal questions, many of which people thought they would never be answered because they wouldn’t make it to court. Well, some of them will be answered (they are been answered) because they are in court.
There are some issues regarding trademark infringement within the realm of the in-world, but regarding intellectual property rights over what is created inside Second Life, many, if not most, people are happy by knowing that

“Linden Lab's Terms of Service agreement recognizes Residents' right to retain full intellectual property protection for the digital content they create in Second Life, including avatar characters, clothing, scripts, textures, objects and designs. This right is enforceable and applicable both in-world and offline, both for non-profit and commercial ventures. You create it, you own it – and it's yours to do with as you please”
without paying attention to the fact that “to do with as you please” contradicts section 3.2 of the Terms of Service where you grant a license to the owner of the platform to do many things with your creation and also contradicts section 3.3 that reads “Linden Lab retains ownership of the account and related data”, which means your creation. The validity of those terms will depend of different jurisdictions’ treatment of standard clauses, but a judge in Pennsylvania, in the very recent case Bragg v Linden Research, understood that, at least one part of the terms of service was not enforceable.
Other very important issue regarding IP rights is whether the rights created virtually within Second Life can be protected in the real world in a real court, and in case of finding infringement who would be liable, the infringing avatar? We may soon know the answer because a dispute about copying a sex-toy created within Second Life made all the way to a real court where a real company, Eros, is suing an avatar, Volkov Catteneo, in Eros LLC vs. John Doe a/k/a Volkov Catteneo at the U.S. District Court in Tampa, Florida.
I am writing few papers (yes, all at the same time) about some of the issues, but a whole book can be written about them, with the problem that it would be a book of questions with few answers, and I just wonder whether all those companies, governments and organizations that are getting space in Second Life have the answers or they like playing roulette?

Wednesday, July 04, 2007

4th Circuit Rules Copyright is Not a Constitutional Right

The US Court of Appeals for the 4th Circuit ruled that copyright is not a constitutional right in the case Darden v. Peters, on last May. While the ruling referred to the standards of review in judicial reviews of decisions of the US Copyright Office in respect registration of copyrights, the opinion affects more than standards of review on challenges to the Copyright Office.
Marybeth Peter, the Register of Copyright, was sued by William Darden who attempted to register copyrights in a web site that assists consumers in locating real estate appraisers and in digital interactive maps., when the Copyright Office refused the registration alleging that the works were not copyrightable subject matter due to lacking sufficient originality because they were based upon U.S. Census maps. The issue became very relevant to copyright law because the question of applying the very low standard of abuse of discretion (which makes reversal of a government agency difficult), or the higher de novo review standard, leads onto the question of whether or not the review concerns a "constitutional right", in this case copyright.
The findings of the court, that copyright is not a constitutional right, is consistent with precedent of the US Supreme Court on the matter, but not necessarily with the letter of the US Constitution or the treatment of other rights enshrined in the Constitution. Although Article I, Section 8, of the US Constitution provides that the Congress has the right to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries", the court found that "Congress [was] under no mandate from this clause, however, to provide copyright protection” and that it was “clear from its text, that clause of the Constitution grants no substantive protections to authors. Rather, Congress [was] empowered to provide copyright protection”. It went further by saying that “Copyright [was] solely a creature of statute; whatever rights and remedies exist[ed] do so only because Congress provided them”. It would be too long to enumerate all of them, but in most cases the US Constitution, through its amendments, provides rights by granting Congress with the power to create a system of rights, which are then recognized by the Supreme Court.
A system of rights is important because it tends to limit the capacity of majorities or organized interests to use the government to damage individuals protected by those rights. However, when an area of activity is subject to uncontrolled regulation by the Congress, those majorities and organized interests can take advantage and diminish the rights of minorities or individuals. Authors and inventors are generally disorganized in the political process, which contrast with publishers and distributors of creative works, such as the movie studios, record companies, book publishers, broadcasters, and software companies, who tend to be well organized and financed, and hire the most effective lobbyists, and while they use the “poor author” when need arises, their interests tend to diverge from those of creators.

Following the present opinion, and other recent cases, authors and inventors have no recourse to the Constitution when the US Congress limits the scope of their copyrights, or their ability to enforce them or when the Copyright Office or the USPTO charge exorbitant fees for registration or corporations force unfair clauses upon creators and inventors...so while in principle looks like a good news to restore balance in the IP arena, it actually opens the doors for more abuse from the IP rights holders (not necessarily or usually the authors or inventors) and more deference to the IP lobby by the US Congress...