OOXML and the prostitution of an international standardisation process

According to Wikipedia,

International standards is one way of overcoming technical barriers in international commerce caused by differences among technical regulations and standards developed independently and separately by each nation, national standards organisation, or company. Technical barriers arise when different groups come together, each with a large user base, doing some well established thing that between them is mutually incompatible. Establishing international standards is one way of preventing or overcoming this problem

and following its own website we learn that the International Organization for Standardisation (ISO) is “a network of the national standards institutes of 155 countries, on the basis of one member per country, with a Central Secretariat in Geneva, Switzerland, that coordinates the system”, which seeks to fulfils the ideal of a technical barriers’ free world. Due to the highly technical nature of ISO’s work, an ISO certification is understood to guarantee that a process or product satisfies the most stringent quality requirements (although ISO’s aim is to eliminate technical barriers, for many it has become a quality assurance label). File formats are not an exception and since the creation of the Open Document Format (caveat with the link: is a 706 pages PDF) by the Organization for the Advancement of Structured Information Standards (OASIS) in May 2005 and its subsequent approval by the ISO/IEC Joint Technical Committee 1 (JTC1) in November 2006 as the ISO/IEC 26300:2006, Microsoft has looked for the way to get its own version of Open Office XML format recognized as an international standard (it is to note that the original name of ODF was also Open Office XML and its development was started by OASIS in 2002, but its name was changed to Open Document Format when the European Union suggested to Microsoft and OASIS to initiate a process of standardisation of their Open Office formats using the phrase Open Document Format).The problem is that once you put Microsoft into the game things get complicated, because it is known the propensity of Microsoft to finance “independent” studies that coincidentally tend to find that Microsoft products are the best, including this standard, and it is also known that some people or groups would oppose anything created by or even with the smell of the Redmond company. And it seems that this time they are right.

One of the issues with the Microsoft proposed Open Office XML Standard is its complexity (6,000 pages), which does not compare well with the 600 pages of the Open Document Format that, in addition, is already and international standard. Another even more interesting issue with the OOXML is that, although is open from the copyright point of view, it seems to incorporate a number of procedures for which Microsoft has patents (to which users would have a licence to use freely unless they decide to use it in a way different that the established one…is that freedom?)

In its favour is normally mentioned that the standard has been already approved by Ecma International, but those using that information as supportive to the standard forget to mention that the European Computer Manufacturers Association changed its name to Ecma International (with Ecma being now a name without further meaning) when it became a private association of which Microsoft is member, and that it approved the OOXML as standards through its technical committee 45, which is co-chaired by Mr J. Paoli and Mrs. I. Valet-Harper, both employees of Microsoft. A further blow to Microsoft’s standardisation drive was given by the US Department of Defence that made reference to the potential problems associated with the OOXML standard, as

1. Binary information in the standard that would lead to security concerns
2. The referencing of unexplained backward compatibility modes that might pose a problem for third party implementers
3. The use of proprietary file formats within the open standard appear to cause potential intellectual property ownership concerns
   

Notwithstanding those concerns, there seem to be national standardisation institutions that are willing to give the green light to the OOXML, especially if there are substantial piles of “green bills” on (or under) the table for those voting.

The blogosphere is red-hot about the Swedish Standards Institute (SIS) vote on the OOXML approval (what they are actually voting is what would be the country’s vote in ISO) and what entitles for both Microsoft and the Swedish. It appears that Microsoft was going to loose the vote when suddenly a group of companies that had never shown any concerns about the standards (before voting these type of things there are months of analysis of the format) or actually shown up at all, decided to show up, pay the little less than U$S2,500 membership fee and vote in favour of the standardisation of the Microsoft’s OOXML. As you may have already imagined, most of these suddenly-concerned companies are Microsoft partners, and in order to avoid any accusation of resembling Oliver Stone here you have the list of those joining at the last moment:

• Camako Data AB (Microsoft Gold Certified Partner),
• Connecta AB (Microsoft Gold Certified Partner),
• Cornerstone Sweden AB (Microsoft Gold Certified Partner),
• Cybernetics (Microsoft Gold Certified Partner),
• Emric AB,
• Exor AB (Microsoft Certified Partner),
• Fishbone Systems AB (Microsoft Gold Certified Partner),
• Formpipe Software (Microsoft Gold Certified Partner),
• FS System AB,
• Google (which joined at last moment to vote against the standardisation and it has been heavily involved in the process at global scale),
• HP (Microsoft Gold Certified Partner),
• IBizkit AB (Microsoft Certified Partner),
• IDE Nätverkskonsulterna (Microsoft Gold Certified Partner),
• IT-Vision AB, Know IT (Microsoft Gold Certified Partner),
• Modul1 (Microsoft Gold Certified Partner),
• Nordic Station AB (Microsoft Certified Partner),
• ReadSoft AB (Microsoft Certified Partner),
• Sogeti (Microsoft Gold Certified Partner),
• Solid Park AB (Microsoft Gold Certified Partner),
• SourceTech AB,
• Strand Interconnect AB (Microsoft Gold Certified Partner) and
• TietoEnator (Microsoft Gold Certified Partner).

The result, as expected, was 25 yes, 6 no and 3 abstentions. Well, information technology and software came to revolutionize and change everything, even the form and place where is conducted the oldest profession in the world…

Google and YouTube in hot waters over Nazi videos and the need for international cooperation

Today several Internet news outlets have carried the news that the Central Council of Jews in Germany has demanded that a criminal investigation be started into Google and YouTube for airing Nazi and Neo-Nazi videos that contravene German anti-hatred laws (Volksverhetzung as stated in Section 130 of the Strafgesetzbuch, Germany's criminal code). Whether YouTube-Google, a company located in the US and with its servers in US, has to comply with German anti-hatred laws could be argued as to be res judicata following the LICRA v. Yahoo! cases, both in France and the US and the voluntarily compliance of Google with Chinese censorships laws saying that had to do that “in response to local law, regulation or policy”. Furthermore, unless you are some sort of weirdo, there is a general agreement between civilized thinking people that Nazi things are not good and are abhorrent (vision that I assume the people of Google share, and I am tempted to say that I am sure about that). However, the problem is with the limit. As it was many times expressed by many people at many forums, if every company in the planet publishing in Internet needs to comply with the censorship regulations of every country, then every country will end having the same regulations of the most restrictive one, which would also imply that the freedom of expression and speech guarantees incorporated into constitutions and human rights agreements around the globe would turn meaningless. Some would argue that the solution rests on geographically specific filters, but then we would need to rewrite every book and paper on Internet and e-commerce and erase the part referred to global reach. So, it seems that the only solution, not an easy one, is some sort of global agreement on the topic, which was the reason I started studying Internet legal issues: while my area of interest was international cooperation on legal regime creation, back in 1998 I thought that the peculiar characteristics of Internet would force countries to give up part of the sovereignty and seriously cooperate on creating global regulatory regimes (since I chose to write my masters and PhD dissertations on taxations issues to show the need for such cooperation, they are both outdated, irrelevant and burnable, but the idea was not to deal with taxes and to show the mentioned need of cooperation, and I think that the underlying principle still stands) . While many may agree with the vision of an unregulated environment where everyone is free to do as she/he pleases, reality shows that people and companies need certainty to operate and plan, and that self-regulation normally does not provide such (although it is very often strongly defended as conducive to the creation of positive business environments without much data supporting the affirmations and a lot of vested interests and ideology behind), which leaves properly balanced and not excessive regulation as the necessary solution, in this case at international level. It does not go saying that it will be an easy task, and the experience with TRIPS is not encouraging due to the imposition of a handful of corporate groups’ interests into the rest of the globe with consequences in health, technology transfers and access to knowledge still difficult to measure, but situations like the one involving Google/YouTube seem to show that the need is there and will become soon unavoidable.

Metaverses law? Study Korean

As Andres reports in his Technollama and as I have been seen lately while researching about legal issues of MMORPGs, it seems that the forefront of the legal discussion on this topic is in Korea. The explanation can be quite simple and linear because although the origins of MMORPGs can be traced to Island of Kesmai and before, the real popularisation of the genre came with Ultima Online, and its sequences in Japan (more than half of the total subscribers for this game have been Japanese), and Nexus: The Kingdom of the Winds, an adaptation from a Korean game.These with the impressive penetration rate of broadband in Japan and Korea, now been supplanted by fibre connections directly to the home, laid the foundations for the current phenomenon (according to the OECD, “Japan leads the OECD in fibre connections directly to the home with 7.9 million fibre-to-the-home subscribers in December 2006. Fibre subscribers alone in Japan outnumber total broadband subscribers in 23 of the 30 OECD countries”, and when I moved from Japan to UK I was surprised after calling here to an ISP and asking for the fastest connection available to be given a 512K connection, when the day I was leaving Japan I got an add offering connections of 100M, back in January 2003). To the technological aspects two cultural ones need to be added to complete the picture: a culture of manga and games that goes back a couple of hundreds years, plus the aversion that is felt generally in Japan about resorting to court to settle disputes, leaving Korea as the venue for the legal developments. Thus, Korea is the place to look at if you want cases dealing with metaverses and MMORPGs. Some of the disputes that are arising or are bound to arise soon between users and owners of platforms have been already decided in Korea, and some of the cases made it up to the Supreme Court. Unfortunately, there is a tendency in the business, legal and academic world to not take notice of things unless they happen at either side of the North Atlantic (things need to be really big to get noticed if they are happening anywhere else). This could become a post about the inequalities in the flows of information and how tragedies affecting a single person in developed countries make it to the front pages of every newspaper and news portal of the planet when dozen of thousands kids die daily due to collective neglect around the globe and they are not even mentioned, or how, for example, for the UK RAE a paper published in some foreign journal that is read by thousands is less important than other published here that is read by the editor, the author and three students who have it as assignment, but the focus is still the need to look for solutions in the places where the problems have been dealt with before, and to not try to re-invent the wheel. There are differences of legal systems and it might well be that some of the facts of the cases are peculiar to the situations in dispute, but if it is possible to harmonize laws and regulations pertaining to matters as domestic as IP law (IP rights have effect on technology transfers, innovation, health and a very long list of issues related to national policies), there are clearly ways to take advantage of the existing and growing body of Korean case law on metaverses.

Official: SCO does not own UNIX copyright!

The US District Court for the District of Utah issued last 10 of August a decision regarding the case SCO v Novell, where the plaintiff (claimant in this side of the Atlantic) tried to get the court to acknowledge its ownership of the UNIX and UnixWare software (between many other things), which arose from a single cause of action originated by statement made by Novell claiming that it had retained the UNIX and UnixWare copyrights when it sold certain assets of its UNIX and UnixWare business to SCO's predecessor in interest, a statement that SCO found slanderous (the original cause of action was slander of title). There were many claims in both the SCO’s suit and Novell’s countersuit, but the most important conclusion made by the judge was that “Novell is the owner of the UNIX and UnixWare copyrights” (at p. 99), which will have important consequences for all the other court procedures initiated by SCO and the licence fees it extracted from many parties. Since the stance of Novell in the open source and Linux development community is well known, it is also a boost for those using/developing the software of the penguin.

Free and ilimited music downloads with your ISP in France

The French Internet service provider Neuf Cegetel announced that its subscribers to the Neuf Box (Internet+telephone+TV) have now a free and unlimited music downloading service with the package. In order to do that the French company has signed an exclusive agreement with Universal Music, which is providing an extensive catalogue of music and video clips. The music and video files are protected by DRMs, which need to be “renewed” every month by connecting the device being used to listen/watch them to Internet. It seems that the DRM in use is Windows based, so not a friendly move for Apple and its iTunes/iPod empire (in the non-exhaustive list of compatible players nothing made by the Cupertino-based company seems to appear).

One thing that may raise some eyebrows is the fact that both Neuf Cegetel and Universal Music have a common shareholder (Vivendi owns 40.5% through SFR and 100% respectively), which would make an interesting case for analysing some competition and antitrust issues. Is Vivendi using its shareholding power to make UM and Neuf Cegetel enter into an exclusive agreement that has as its object or effect the distortion of competition within the common market by applying “dissimilar conditions to equivalent transactions with other trading parties” as expressly prohibited by art 81.1 (d) of the Treaty of Rome? We will have to see whether other ISPs get the same deal, but it also can be argued that, regardless how unfair the deal may seem to others, it wouldn’t be fair to target only this deal because the whole “legal” music and video download business needs a deep (or deeper than until now) revision by the European Commission.

House of Lords report on Internet personal security

Today the House of Lords Science and Technology Committee 5th Report of Session 2006-07 on Personal Internet Security has been published. The full publication is, as expected, quite voluminous (121 pages the report plus 449 the evidence) and it will take more than this coming weekend to go through it (I do have other commitments during weekends). However, having participated in the meetings that led to the Society for Computers and Law submission to the inquiry, I still find that for reasons that now seem obvious, some of the policies that developed countries pursue in relation to the information society always have the disadvantage of these countries having established that the protection of intellectual property rights is one of the most (or the most) important policies in the area. Again, it is clear that IP rights are necessary and allow the legal fiction of treating creations as property and, therefore, facilitate their transactibility, but putting them as the most important policy issue seem to create problems in other areas. From skimming through the report, it seems that the Lords suggest that more recourses need to be devoted to deal with Internet personal security issues, both at corporations and government level, but the issue is that money for protection and enforcement is a finite resource and needs to be prioritized it, and, if the priority is to use public resources to protect IP rights, Internet security takes, at best, a second row seat. The case is far more problematic in developing countries where due to external pressure and the globalisation of the developed countries’ level of IP rights, which includes criminalization of IP rights infringement, a substantive amount of very scarce resources needs to be devoted to the protection of certain industries rights, which lead the rest of the society “unprotected” from the growing threat of cybercrime. So it is not a problem of resources alone but one of allocation of them and societies will have to decide if protecting the profits of the IP-related industries is more important than the identity, finances and well being of the rest of the society (it will be too long to explain here, but it can be argued that the real threat of terrorism relates to cyber-terrorism). The danger exists though, that the entertainment industry will try, and succeed in, to tie security with IP rights violation and then increase the pressure to divest even more resources to protect them...and the winner is...

P2P in colleges and the promiscuous relations between the US Congress and the entertainment industry

Some places have been commenting about US Senate Majority Leader Harry M. Reid dropping his proposed amendment to the Higher Education Act, called “Campus-based Digital Theft Prevention”, but while the news could be a good one, the fact that the amendment was ever proposed or drafted raises every form of concern. The amendment, incredibly bizarre from the legal and ethical point of view, was designed to give to the RIAA and the MPA police powers by asking them to draft annuals lists of the 25 colleges receiving the most notices of copyright infringement and then subject those colleges in the list (which again, was going to be made by the RIAA and MPA) to the obligation of using technological tools or losing federal student aid! It sounds impossible and incredible but yes, the leader of the US Senate majority proposed to put on the entertainment industry’s hand the decision of which college can and cannot receive federal student aid (do we need to check whether Senator Raid’s house is also been refurbished?).
The now defunct proposal, which seems that will be picked by the House of Representatives, does not make any sense and it is based on several mistakes of fact and law, that at that level cannot be ignored, so we have the right to wonder whether the representatives of Alaska are the only ones in need of FBI investigation (it seems that no). First, it takes as res sancta the simply untrue statements given by the entertainment industry in the Congress, which contradict the same industry’s official publications. According to Kenneth Green, director of the Campus Computing Project, in a comment to an article of the Inside Higher Ed.

[t]he comments by Mitch Bainwol, chairman and CEO of the Recording Industry Association of America, misrepresent the RIAA’s own data on who is engaged in illegal downloading and which (broadband) networks are being used for illegal downloading. Some examples: — only 4 percent (329) of the more than 8400 “John Doe” lawsuits filed by the RIAA in 2004-2005 involved college students; the rest were “civilians” using consumer broadband services. — a RIAA news release dated 28 Feb 07 states that “college students are the most avid music fans.” Yet data from the RIAA’s 2005 Consumer Profile reveal that consumers ages 18-24 (including but not limited to college students) account for approximately one-sixth (15-17 pct.) of the music buying population in the United States; in contrast, consumers ages 25 and older purchase two-thirds (66.9 pct.) of all recorded music.— “half” the nation’s more than 16 million college students ages 16-67 are NOT engaged in illegal downloading as claimed by Mr. Bainwol and others from the RIAA.

Other important problem of fact is that, particularly in colleges, is plainly not true that all the P2P traffic is devoted to infringing activities. Furthermore, most of the technologies that are now making the US competitive (this whole thing started from some of of committee for 21st Century Competitiveness or something like that) have been devised and tried in campuses and, due to the size of some of the files, P2P technology is what enables students and researchers to share them. And what happens with people perfectly-legally sharing music that is licensed under the Creative Commons? Is this another form that the RIAA and the MPA have found to stop people using alternative forms of licensing not needing them?
From the legal point of view, it is difficult to know where to start from. First, we have the issue of giving police powers and, indirectly, power to decide over the allocation of federal funds to trade groups that should be subject to investigation under antitrust legislation, seems a “bit” illegal, even within the current American situation where the rule of law is subject to so many exceptions. Then, to force third parties to take positive actions to protect the profits of copyright owners seems a step to far in the American Congress efforts to ensure that the entertainment industry keeps having profits far beyond what the market is ready to allow them. There are also concerns about whether such a measure would be compatible with the US Constitution 14th Amendment, because it puts an obligation into colleges that does not put into other networks and Internet Service providers and with the 4th Amendment because it will also imply that colleges will have to search all traffic going through them even when the researcher or student is connecting to the network from a private computer outside campus using a private Internet Service provider.
Other very important issue it that by monitoring and blocking certain type of traffic, colleges are likely to loose their status as transitory Internet Service Providers, which could make them liable for any type or infringement and also responsible for criminal activities taking place over their networks, and therefore, exclude them from the safe harbour provision of the Digital Millenniums Copyright Act. Then, many crimes are committed using cars…should the car vendors (providers) be liable unless they fit in every car a transponder that allow for localization and/or they also create some sort of technology to stop cars from working if a crime is committed with it? And the companies making the roads? And the gun industry? And…? There are so many examples to be given where the principle is that the one supplying the medium or the technology is not liable for the use of them that this sort of proposals are simple repulsive, because they come from people that won the last election promising to change the way things were done in DC…

(In order to not make a book out of this simple blog, I just left outside the issues relating of the inefficacy of the filtering technology and the even greater issues of academic freedom, freedom of speech and privacy)

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)

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?

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?

4th Circuit Rules Copyright is Not a Constitutional Right

The US Court of Appeals for the 4^th 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...

Ooops!

Last week Windows Marketplace offered to download freely Ubuntu, the most popular distribution of the Linux operating system. According to the description on the page, "Ubuntu is a community developed operating system that is perfect for laptops, desktops, and servers. Whether you use it at home, at school or at work Ubuntu contains all the applications you'll ever need, from word processing and e-mail applications [bold added]". When Microsoft realised it, the program had had more than 10,000 downloads and, even it took off-line, the page is still available in the cache of Google…

European Intellectual Property Teacher’s Network Workshop

Yesterday I spent most of the day in Aston Business School, where it took place the European Intellectual Property Teachers’ Network Workshop, event that was supported by the European Patent Office. The event officially started on Sunday when the Pre-Conference dinner was held in the ABS. I will repeat it again, but it is important to say that the whole thing was superbly organized by Claire Howell (Aston Business School) and Duncan Matthews (Queen Mary, University of London).
Monday started at 9 with Claire and Duncan’s welcome words, which were followed by Stephen Rowan’s (Director of Industrial Property Policy in the Intellectual Property and Innovation Directorate of the UK Intellectual Property Office) keynote address “Is the Intellectual Property System Fit for the purpose in an Era of Globalization, Digitalization and Increasing Economic Specialisation? The address was too interesting and rich to try to synthesise it here, but one issue that particularly caught my attention was the ongoing conversation between the EPO, the USPTO and the Japanese Patent Office to “recognize” their searches when they handle application for the same invention from the same person. Taking into account the very poor quality of too many US patents, what normally and theoretically might look like a sensible idea becomes a worrisome one. However, Stephen reassured the audience that the idea would go further only if the quality of the patents could be guaranteed.
The keynote was followed by the first session, which was focused on Interdisciplinary IP Teaching. It started with Robert Pitkethly from Oxford University, who made some interesting proposals about narrowing the gap between the education received by those in the IP profession and those in the management area who manage intangible (IP based) assets. One of the proposed solutions consists of placing IP contents within general management modules to avoid having full-IP modules that the will-be managers refuse to take and vice-versa for IP professionals. Next was the time of Michael Kort from the University of Augsburg to reflect on “The Necessity of Interdisciplinary IP Teaching”, by explaining how that had been achieved in Germany through the Munich Intellectual Property Law Center. The MIPLC is a project of the Max Planck Institute for Intellectual Property, Competition and Tax Law, the University of Augsburg, the Technische Universität München, and the George Washington University Law School and it has a LLM program that in addition of covering all areas of European and international intellectual property also include topics from related fields such as economics and business administration. Finally, the session ended with Kevin Scally’s (University College Cork) “Explaining the patent industry to business students; what should we tell the kids?”, where he claimed that teaching only what the law says and is in patents leave out of the picture the fact that a lot of it has nothing to do with innovation, inventors or industry’s development but with the patent industry itself. He went on by saying that non-strictly legal issues should be incorporated into IP (patents in particular) teaching to non-law students because the orthodox view supported the growth of the patent industry, which benefits by having more patents filled and registered regardless of whether the patent gives any advantage to the inventor, company or implies any advancement for the society.
After a strictly enforced 15 minutes coffee break, the second session on IP Teaching and Copyright started with Ronan Deazley (University of Birmingham) talking about “[…]Teaching the History of Intellectual Property and Why it Matters”, where after giving examples on the development of IP legislation in the past (and introducing the Primary Sources on Copyright project, awesome!) he explained how history of copyright can not only help to introduce current topics but it can also be used to deconstruct certain accepted truths about IP in general. Ronan was followed by Willem Grosheide from the Utrecht University, who further gave a European flavour to the meeting and explained how IP rights could be taught with a focus on human rights. The session and the morning came to a close with Maureen O’Sullivan (National University of Ireland, Galway) who departed slightly from her original “Teaching Copyleft and Creative Commons in a Copyright-riddled Academic World” to explain teaching techniques and tricks she used in her IP class in the university (and inviting all of us to join her students in the pub next time).
After the lunch recess the afternoon started with Marielle Piana’s (European Patent Academy of the European Patent Office) address on “IP teaching landscape in Europe”. Marielle introduced some data taken from a study carried out by the Academy about the extent and type of patent teaching in Europe, explained what was what the Academy taught and ended for asking teachers for a closer collaboration with the Academy.
Session 3, on IP Teaching and Issue-Based Learning, was initiated by Eva Nathusius (TUM Business School, Technische Universitat Munchen) who gave a clear and detailed account of the use of a real case-study to teach IP issues in her school. The idea of creating such case-studies (nobody seemed to clain that it was a cheap thing to do) entusiasmated many and I was kept wondering whether a repository of them with some form of licencing would be possible…Christopher Wadlow, University of East Anglia, gave his recount of an “Experience of Problem Based Learning in Two Taught Postgraduate Intellectual Property Units at the University of East Anglia”, and here again the impression was conveyed that issue-based learning and teaching has a lot to offer to both law and non-law students facing the complexities of IP law. This third session ended with Jo Stanley (Anglia Ruskin University) and her “Law into Technologists OK, Technology into Lawyers Won’t Go”, where she explained how the teaching of IP can be carried out following the basic logic used by people on the technology side of this matter and by doing so both lawyers and non-lawyers would increase the understanding of the technical part of IP issues.
The last session was on “Approaches to IP Teaching”, which started with Akalemwa Ngenda (University of Kent) and his “[…] Lamentations of a Journeyman”. In a very colloquial and calm manner, he went through different experiences and the impact that some trends towards a client-corporation relation was having in higher education in general and IP teaching in particular. He was followed by Catherine Colston (University of Strathclyde) and her “Teaching IP by ‘Virtual Means’”, where she explained and demonstrated how her classes were taught via Internet and webcasts, and how the results have been more positive and encouraging than some people thought originally (Charlotte Waelde, also with vast experience in distance learning, asked her a question about the cost but it seems that through it own Learning Technologies group or unit things are well covered in Strathclyde). The last speaker presenter was Spyros Maniatis (Queen Mary, University of London) who draw from the wealth of his own experience to show how practitioners and academics can and do collaborate to then conclude that collaboration was not only possible but necessary.
The day ended with Claire and Duncan words explaining the next steps, which will include setting up a website and expand the network across Europe. Again, the organisation was excellent and Claire and Duncan have set up a very high standard for those that will organise the workshop next year…

PS: Julian Webb also wrote about the day in his blog

Dirty tricks with official domain names in Argentina

It seems that the same winds that have consistently made many Latin America nations to be in continuous process of under-development are blowing again, and I am not talking about any ominous foreign influence but about the lack of rule of law and the use of the public resources to benefit a person or political party. And the government of Argentina, probably jealous for loosing the regional leadership in not respecting the rule of law to some of its friends a little norther, has decided to commit some domain name registration anomalies to try to regain the title as the one that respects the law less in the area.
Not happy with having the wife of the President representing the country and even signing international treaties on behalf of it, which clearly represents a very lax interpretation of the principles established in the Argentine Constitution, especially arts 72 and 99 (you would imagine that only the president or the minister of foreign affairs would do that, but in Argentina, being a senator and wife of the President is enough qualification even if the senate has not given its authorization as required in the art. 72 of the Argentine Constitution), it seems that the wife of the President is a public institution on her own merits, or at least she is one for domain registration purposes.
On 9 May the domain cristina.gov.ar was registered by the presidency's spokesman, Miguel Núñez, even the official rules limit the domain names using gov.ar to government organizations at federal, provincial and municipal level, being barred its use for particular persons. If that irregularity wasn’t enough, the same person, Cristina Fernandez de Kirchner got a very exclusive top-level domain name, cristina.ar, without any gov. com. or anything like that, of which are only few in the whole country. There are less than twenty .ar domain names, belonging to organizations that pre-existed the Network Information Center Argentina or that have a supra-governmental purpose, like educ.ar (since the first category does not apply, is the NIC suggesting that the President wife’s candidacy is a State’s matter that goes beyond the government aims? (with “beyond” meaning “above” or "more important" here)). Not satisfied with violating the NIC Argentina rules for domain name registration, the domain name cristina.com.ar, which was liked to cristina.com, is owned by Cristina Fernandez de Kirchner with domicile at 24 Balcarce Street, the address of the Presidency’s office also known as the Pink House.The domain name cristina.gov.ar has as contact the mentioned Miguel Núñez, who also gives as his address the Pink House and as his phone numbers his offices’ ones. Needles to say that even some Argentine legislation may seem bizarre, the law clearly does not goas as far as allowing the use of public resources to benefit a potential candidate.

Another questions that pop into people’s minds is how the procedures were handled. According to the law, a domain name registration can be completed online, but the data submitted has the character of sworn statement and for a gov.ar domain name a official letter with letterhead and signature of the official in charge (in original) needs to be submitted to the NIC. Who signed that request?
Are these the people that took power to get rid of the “old politics”? If they cannot get rid of the “old politics”, can they let the domain name systems out of their dirty business?
I hope that situations like this help to explain why in several informal conversations during the IGF in Athens I said that it was better to keep ICANN as it is and far from some countries public officials’ hands…

Global thinking

As mentioned before, one of the things I was doing in St Louis was a series of TV programs with the Higher Education Channel. The premiere will be on 27 June and the channel's magazine explains what is the idea.

There are no certain details for continuining filming new programs, but conversations are on to do several more of them or even keep it as an almost permanent program...

Two on Google Book Search

Two pieces of news related to Google’s book scanning project caught my attention.
The first relates to the agreement that Google reached with the Committee on Institutional Cooperation, which includes the University of Chicago and the 11 universities in the Big Ten athletic conference (Illinois, Indiana, Iowa, Michigan, Michigan State, Minnesota, Northwestern, Ohio State, Penn State, Purdue and Wisconsin, 11 on the big ten? somebody is in need of a mathematician there). CNN reports that Google will digitize select collections in each of those universities, comprising up to 10 million volumes, which the universities say that Google will scan and index materials complying with copyright law (I would suggest that the committee let Google say so), because the company generally makes available the full text of books in the public domain and limited portions of copyrighted books.
The other piece refers to the actions of Richard Charkin, Chief Executive of Macmillan Publishers (I have a contract with Palgrave Macmillan, a division of Macmillan to write/publish my textbook in Business Law), who took two laptops from Google’s stand at the Book Expo America. According to Charkin’s blog, his “justification for [that] appalling piece of criminal behaviour [can be found in that fact that Google] had not specifically told [him] not to steal it. If s/he had, [he] would not have done so. When s/he asked for its return, [he did so. It is exactly what Google expects publishers to expect and accept in respect to intellectual property.
'If you don't tell us we may not digitise something, we shall do so. But we do no evil. So if you tell us to desist we shall.'”
Both stories raise similar issues. While it is understandable and practical that Google gets some type of agreement to scan millions of books sitting on libraries’ shelves, from the Copyright point of view, if they are in the public domain the company does not need the agreement (still the agreement makes a lot of sense because otherwise if the copies are unique or rare, Google employees would have to register and borrow the books from the libraries). Then, with the “limited portion of copyrighted books”, which clearly refers to the doctrine of fair use, how much can be copied to not amount to infringement is a matter of fact that a court will have to decide. Furthermore, because Google Book Search will be available in every country with Internet, the material will also be available in jurisdictions where the doctrine of fair use does not exist, which could be understood as copyright infringement there.
The actions of Richard Charkin, technically a crime, exemplify with clarity the problems with Google’s argument that they can copy unless you ask them not to. In addition of the oddity of claiming that you have the right to infringe somebody’s rights or break the law unless expressly told not to do so, they know too much copyright law for me having to tell them that that is the function of copyright law: to tell you “do not copy”…
(keeping in line with the disclosures, this blog is provided for free by Google, and I personally don't understand how we could live before Google was created)

G8: Much ado about nothing...or more of the same

The G8 Summit, in addition of wasting time and money in discussing irrelevant things as the anti-missile shields and other nonsense (if a fraction of the money spent in those things that will never be used was used in solving the world problems, probably there would not be need of caring about security, illegal immigration and other issues high in the international agenda), had things to say about Intellectual Property Rights and development and it did; not very balanced though. When it had to satisfy developed countries' industries willing to have more enforcement the G8 was very clear, but when it had to address the issue of millions dying due tuberculosis and Aids in Africa its response was to promise to work with international organizations and donors "to respond constructively to requests by African developing countries without manufacturing capacities with regard to the use of the flexibilities referenced in the WTO Doha declaration on TRIPS and Public Health, while respecting WTO obligations"...very vague, no? And, which part of TRIPS don't they understand? African countries don't need to "request" using the flexibilities, they have to use them.

In contrast, the very vague vocabulary that precedes was replaced by a very clear call to "to implement concrete measures which will improve and deepen cooperation among G8 partners and deliver real enforcement results", and where to deal with the ailment of several million people in Africa "international organizations and donors" were mentioned, to streamline and harmonize "the international patent system in order to improve the acquisition and protection of patent rights world-wide" and to "combat piracy and counterfeiting", the list of organization that should "strengthen cooperation in [these] critical area[s]" loses all vagueness and specifically refers to "the World Intellectual Property Organization (WIPO), WTO, the World Customs Organization (WCO), Interpol, the World Health Organization (WHO), the OECD, APEC, and the Council of Europe". Not to say that the treatment is different at all...
(Still, nothing justify what some "rebels" do by creating chaos and using violent tactics wherever the G8 meets)

Copyright infringement and privacy case in France

Following a ruling (in French) from the Conseil d’Etat, or Council of the State or Supreme Court for administrative Justice of France, record companies can now automatically track the activities of users that share more than fifty files within 24 hours using Peer-to-Peer networks and keep their records for further legal proceedings. The decision follows a challenge by music labels and distributors of a order given by the Commission Nationale de l’Informatique et des Libertés, CNIL (National Commission of Information Technology and Liberties or French Data Protection Authority), which in 2005 ruled that automatic surveillance of P2P networks violated local privacy laws. Still, the Council upheld the a part of the CNIL decision that stated that copyrights holders cannot send users warning e-mails because translating their Internet Protocol addresses into e-mail accounts can only be done under a court order or police mandate.

Privacy of computers attached to a network

While doing research for a paper on privacy rights and freedom of speech in academic networks in UK and looking for how the law and courts deal with the issue in others parts of the globe, I found a fairly recent case (April 5th 2007) of the US Court of Appeals for the Ninth Circuit that gives a mixed message about the issue. The case is USA v. Heckenkamp, where the issue was whether evidence colleted during warrantless remote search of a student's hard drive by a university network administrator who was acting in association with the FBI was admissible in court.
In the course of an investigation on unauthorized access to the computer systems of Qualcomm, the FBI determined that the intruder likely accessed the company’s systems from a computer on the University of Wisconsin network and the Feds sought and received assistance from the University. The UW investigation of network information led it to Jerome Heckenkamp, a graduate student in computer science and renown hacker (check about him on page 6 of the Hacker's Digest), and the computer in his dormitory room, and without a search warrant a UW network administrator used his computer to remotely search the hard drive of Heckenkamp's computer a day before that the FBI obtained the first search warrant and seized the student’s computer and searched his room.
The hacker moved to suppress evidence gathered from the University’s warrantless remote search of his computer and the search conducted pursuant to the FBI's search warrant, motion that was denied by the District Court. Then, Heckenkamp pled guilty to two counts of “Fraud and related activity in connection with computers”, 18 U.S.C. § 1030, conditioned upon his right to appeal the denial of his motion to suppress (the importance of the point is in the fact that suppression of evidence in this case may enable the student to escape punishment for a crime to which he pled guilty).
The court, focusing on two points, affirmed the District Court's denial of Heckenkamp's motion to suppress evidence under the special needs exception to the warrant requirement, because it found that federal prosecutors can use evidence collected in a warrantless computer search to prosecute a student for hacking computers outside of the university network, when the university acted out of an independent concern to protect its own computer systems and not to aid the federal investigation per se.
Since a prerequisite to establishing the illegality of a search under the Fourth Amendment is that the defendant shows that he had a reasonable expectation of privacy in the place searched, the first issue that the Court of Appeals dealt with was whether there is a reasonable expectation of privacy in a computer attached to a network. In this point, it found that Heckenkamp had a legitimate and objectively reasonable subjective expectation of privacy in his computer and his dormitory room, which was not extinguished or eliminated when he attached his computer to the network, especially due to the fact that the University did not advice users that that information transmitted through the network is not confidential and that the systems administrators may monitor communications transmitted by them.
The special needs exception constituted the second issue where the Court of Appeals put its focus. It said that the search of the Heckenkamp’s computer was justified because under the special needs exception a warrant is not required when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable, and while it was true that the University knew of the FBI investigation regarding unauthorized access to Qualcomm's computer it had an independent concern about the security of its own computers, even if the evidence collected by the warrantless search of the computer was used to obtain the conviction in the FBI's case.

It is a case that should give reasons to celebrate and to worry to privacy advocates because on one hand makes clear that there is a reasonable expectation of privacy in computers even when connected to networks, but on the other allows the use by law enforcement agencies of information that they acquired via circumventing the constitutional guarantees. A more rational approach by the court should establish that when the special needs exception is used, the information obtained by that course cannot be used for purposes different than those that justified the use of the exception (in this case to verify a breach on the University of Wisconsin computer’s security)…

Buenos Aires elections in Second Life

The Argentine newspaper Clarin reports that the elections to Mayor of Buenos Aires also were held virtually in Second Life. Interestingly enough, the results mimicked quite closely the results of the real election, that took place last Sunday in Buenos Aires, which could be used to argue that the population of Second Life resembles the real population of modern and sophisticated places. It is important to note that Buenos Aires is a city with about 3 million people (the usually referred 13 million include what is called the Great Buenos Aires, an area where different towns are physically as one but with distinct legal and political organizations), very modern and with a very sophisticated population. According to Argentina's electoral law, campaigns must stop a couple of days before the election and engaging in political activities during those days is an offence. Taking into account that the limit between game and business-platform is becoming more and more blurred in Second Life, one would wonder whether carrying out a virtual election during the black-out period does not infringe the law...