New technologies and old sins

Today CNN has a report on how the use of Google Earth shows that a group of US Navy barracks are shaped like a swastika, which can be used as excuse to analyse a series of issues. The first and more obvious relates to the discussion as to whether today’s standards can be applied to things and actions done in a completely different technological environment and to whether, barring any statute of limitations, people or organizations can be found guilty/liable based on that new standards. Before carrying out the analysis of that issue, it is important to point out that in the case of the barracks, the intention or reckleness were cleary there when built because in order to built such large buildings blueprints were needed and the shape had to be obvious then on paper as it is now from the sky. That allows me to make a huge digression into a myth usually accepted in the US, and that is that after the IIWW most Nazis fled to Argentina, Brazil and Chile. While it is true that Eichmann and Priebke were both found in Argentina, fw years ago it was finally acknowledged (through Nazi War Crimes Disclosure Act and Freedom of Information Act requests) that many, if not most, Nazis went actually to the US and they went there to work for the US government (it would be interesting to see who the architect and others related with the barracks’ design were).
Going back to the new standards applied to old actions, and recognizing that following established principles of criminal law allowing the use of new evidence and law when they benefit the defendant are not in question, the issue becomes thorny in business and academia. For example, this year the an anonymous source showed that the PhD dissertation of the president of Sourthern Illinois University, Glenn Poshard, had been plagiarised by proving that “in one instance, a 68-word passage from another source is used without quotation marks or citation” and, furthermore, “an 80-word section, also missing quotation marks and citation, is taken from a source with only a few minor changes, such as switching a verb from "has been" to "was."” (from the Chronicle of Higher Education, subscription needed). I don’t know Dr. Poshard, I haven’t read the dissertation, I don’t want to read it and I couldn’t care less, but it seems clear that in today’s technological environment, with Google and Turnitin, one could expect that those minor issues to not exist, but to use the same standard for something done in 1984 could imply to misjudge the situation (again, with the easiness that those things could be checked today, one would expect that for a PhD dissertation not such “mistakes” be made, although some are still reasonable, but when the whole search and recording was done manually, the issue was not about academic integrity but about faultless organizational skills, which although needed were not what a PhD implies).
That simple example (the issue is quite more complex because the "plagiarism wars" in SIU started when a teacher was fired for copying a two-page teaching statement) can show how current technologies can invade a form of privacy that normally is not taken into account, which is the breach resulting from the crossing of temporal boundaries, and relates to the fact that many heavy ICT users are not aware of those boundaries and by posting things online they blur the limits not only between offline and online but between past and present…As always, the conclusion is that more education is needed.

Cornell Webcast in Copyright today

Cornell University's Computer Policy and Law Program is hosting two sessions dealing with copyright featuring Wendy Seltzer, a visiting assistant professor at Northeastern University School of Law and a fellow with the Berkman Center for Internet & Society at Harvard Law School. The first session, “Protecting the University From Copyright Bullies,” is staring at 3 p.m. of Cornell's time (EST) (8 pm in England) and will deal with whether colleges can meet their own principles of academic freedom while enforcing current copyright laws, while the second one, “Righting the Copyright Balance,” at 7:30 p.m. (12:30 am of tomorrow in England), will address the issue of changes to existing copyright law and to the entertainment industry’s distribution models.

To whatch them, the link is http://ucpl.cornell.edu/

Gikii 2.0 brief impressions

Last year I wrote a detailed report on Gikii "The Beginning", but this year I’ve arrived late to UCL (where Gikii Returns took place last Wednesday organized by Lilian and Andres, with the logistic organization of Ian) and after several presentations due to be taking some exams. I arrived just after the third section when the discussion was focused, again, onto whether regulation or self-regulation are the way forward to protect people’s privacy online. I have made my position clear more than once that regulation is needed not only to protect people’s human rights and consumers’ rights but to create business-friendly environment, but I agree with the final conclusion that both regulation and self-regulation are not conducive to more privacy without a substantive effort in education.
After a nicely prepared lunch, the fourth session was started by Daithi Mac Sithigh, from Trinity College Dublin, and his “I’m in ur tube blocking ur internets: The Politics, Perception and Parody of Network Neutrality Legislation”, a very entertaining presentation about issues surrounding the discussion whether Internet Service Providers and network infrastructure providers can prioritize traffic according to it commercial interest. He was followed by Burkhard Shafer, who presented the paper co-authored by him, Wiebke Abel and Gerald Schaefer entitled “An Officer and a Gentleman: Teaching Autonomous Agents the Laws of Armed Warfare”. There they presented the idea that autonomous agents and humans receiving or giving orders to them should have a clear relation of hierarchy, like in the military, which would prevent inconsistencies and would improve predictability, one of the aims of regulation in general. The session ended with Thomas Otter's “Web 2.0 and Accessibility”. This is a topic in which I have a particular interest and Thomas treated it with his usual knowledge and aplomb. The issue is whether accessing to information is a right and the definition of information, because if it is a right and a YouTube video is information, the whole technology would not be accessible. The session was followed by the one on extreme IP.
This IP part was initiated by Caroline Wilson, from the University of Southampton, who gave a talk on “Trade mark Law in an online future – coming to its senses?” and first went onto a prospective analysis of the development of virtual worlds. The really good and illuminating analysis showed how virtual worlds are evolving into a technology that will modify the way we do things beyond what Internet had done and how that evolution will put a strain in the strange interpretation given to trademark law to the point of needing to be made in a more coherent manner. Jordan Hatcher made a very interesting presentation on copyright over tattoos with the title “Drawing in Permanent Ink: A Look at Copyright Law and Tattoos”. Jordan’s talk dealt with the interesting issue of who owns the result of a tattoo parlour’s work: the customer who owns the skin and order the tattoo? The artist who designed it? The employee that puts the ink into the skin? All of them? He was followed by yours truly, and I made a presentation called “Killing Trolls In Avatars: Virtual Infringement of Real Patents”, where the issue of whether the patent peace clause of Second Life’s terms of service protected those infringing business methods patents within the virtual world and in case that infringement bee found what it the potential liability of the platform owner’s was.
In the last session Richard Jones, from Liverpool John Moores University talked about folk music and its relation with copyright in his “Cultural approbation of the Folk: Hang Down Your Head Tom Dula, or Larry Lessig rides into town”. There he explained why copyright was not an appropriate tool to protect and promote folk music and how and why Creative Commons may not be the answer either. Richard was followed by Ray Corrigan, from the Open University, who gave a very interesting talk “Colmcille and the Battle of the Book: Technology, Law and Access to Knowledge in 6th Century Ireland”. It showed that there is really nothing new under the sun by showing that a 6^th century case looked very similar to what happens now and that the issues have not changed much (although it is true that now the legal battles do not end in real battles costing 3,000 lives, but the abuses of IP may well leave far more death now…). The last presentation of the day was given by Simon Deane-Johns, from Zopa, claiming that “We, the Lunatics, Control the Asylum”. Simon explanation dealt with how networks were allowing users, or organized users, to impact the political and policy process, which he related to the rise of Web 2.0.
A final discussion took place and then the souls went on to get a picture with Jeremy Bentham and to the pub bearing his name…

Law, Technology and Society in Latin America Panel at LASA 2007

On Saturday 8th of September, took place in the Fairmont Queen Elizabeth of Montreal the panel on Law, Technology and Society in Latin America as part of the Latin American Studies Association International Congress, where topics of Internet law and IP rights in Latin America were addressed. The panel was opened by Andres Piazza, from Ageia-Densi Argentina, who carried out a very precise and accurate analysis of the relation between data protection and Internet security with emphasis on Argentina law. Andres referred to the fact that during the last decade Data Protection has advanced substantially in Latin America, mainly based on the European Data Protection Directive and the implementation of it made by Spain, and that as in Europe the regulations have had as one of their pillars the security of the databases containing the personal data. Accordingly, he went on saying that it would be impossible to carry out any form of serious protection of personal data without putting into place technical and organizational measures tending to guarantee the security of the personal data and avoiding its alteration, loss, or unauthorized processing or access, as stated in every data protection legislation in question. However, excepting in Argentina the rest of the region is still lacking the creation of application authorities that ensure the proper enforcement of the norms and ended proposing that such regulatory upheaval be given priority for the creation of a culture of data protection across Latin America. He was followed by Carlos Aguirre, from the Universidad Nacional de Cordoba, also from Argentina.
Carlos gave an insightful talk about the relation between law and information technologies with a regional perspective. There he made an analysis of the challenges that technologies bring to the development of certain and coherent law, with emphasis on the external factors affecting regulatory creation. Carrying out a thoughtful economic analysis of the law affecting information technologies in general and electronic commerce in particular, Carlos went on saying that in Latin America there was a general lack of acknowledgement of the need of such multidisciplinary and specialized analysis on the design of public policies, universities’ curricula and legal regulation. He ended proposing that the mentioned analysis be commenced at university level in legal education by the institution of compulsory subjects dealing with law and technology in Latin America. It was then my turn to shift slightly the conversation towards IP rights in the region.
My talk dealt with the issue of intellectual property rights, innovation and development in Latin America. After going rapidly through the evolution of intellectual property rights in the region, from Paris and Berne to TRIPS and from there to TRIPS-Plus, and some examples of the role that some Latin American countries played in the making of those treaties, by action or omission, and also some examples on the implementation of the international agreements south of the Rio Grande. The focus shifted then to the issue of innovation and the relation to development. It is widely acknowledged that innovation and better use of existing resources are keys in countries development, but in order to assess what policies better achieve those goals appropriate means of measurement are needed. One of the important problems is that innovation is usually measured suing the number of patents accepted in one given territory and it is my opinion that in the current patent madness the measure is not only deceiving but interested and dangerous. Those supporting that form of measuring innovation tend to unsurprisingly find that strengthening intellectual property rights foster innovation without realising that “strengthening” in the current environment means more protection for lower quality (or no quality) patents, which defeats the whole reasoning. So, for example, those patents that are clearly invalid if proper standards are followed (standards destroyed by “strengthening” IP rights) are the ones that make people conclude that innovation is on the rise, while certain evidence shows that IP rights may well be stalling innovation. I concluded by asserting that innovation can be linked to IP rights but the level of them should be decided in each country and that serious work should be carried out to establish a reliable method of measuring innovation, a method independent from IP rights.
The panel ended with a presentation by Palmira Granados, from Mexico, who talked about genetic patents and indigenous people with emphasis on Mexican cases. Palmira questioned the current status of the patent system, where more concern is giving to grant incentives to investors than with achieving a balance between the interests of inventors/investors, consumers/society, and indigenous peoples who donate their genetic samples for research purposes. She then went onto evaluating the possible impacts of the current patent system on different areas, specifically when it involves pharmaceutical patents and genetic information collected from indigenous peoples, dealing with the effect that the patent system may have on research and creation of drugs especially tailored for diseases that have particular behaviours in indigenous peoples, specifically in some Mexican indigenous peoples. Finally, she explained the way in which the current patent system may jeopardize religious and cultural beliefs of indigenous peoples who participate in pharmaceutical research. The explanation got necessarily interlinked with human rights, a trend that is becoming more pronounced in many forums.

LASA in Montreal

I am writing from the lobby of the Fairmont Queen Elizabeth in Montreal, Canada, where LASA's International Congress is taking place. It is a multidisciplinary conference (any topic related to Latin America goes) but there are several panels dealing with IP, new media and technology issues. Tomorrow I will be chairing the panel on Law, Technology and Society in Latin America, and I will write then what was about.
Very warm and sunny in Montreal...

Philippines inmates’ videos and some questions on global IP rights

During the last few weeks some videos of a group of inmates from the Cebu Provincial Detention and Rehabilitation Centre in Philippines have been “dancing” around the net and today CNN reports on a new one. According to Byron Garcia, who developed the idea, dancing has improved dramatically inmate behaviour and the number of violent episodes has decreased substantially.

As you can observe here, the videos consist of large group of inmates performing choreographies of local and international artists that…what a minute! What about the copyright of those artists? Is the Philippines prison system paying royalties for public performance, derivative work, reproduction, distribution and a long list of things that is doing by using the music, filming the videos and posting them in Internet? Should it pay? Well, it can be argued that under Section 185 of the Philippines Intellectual Property Code "[t]he fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright" and it the fair use exception is evaluated taking into account several things, two of which are “[t]he purpose of the usage of the copyrighted material to be classified as fair use", […]and "[t]he effect(s) the copyrighted materials has or have on the potential market and the value the item has to enriching the item of which the copyrighted material is being classified as fair use”, and if the videos are understood as fulfilling a "similar purpose", it could be said that here the exception would apply due to the public goods purpose, the almost nil negative effect on the copyrighted materials market and the clear enrichment that such a materials enjoy by free marketing linking them to public goods (for those revenge-seeking that think that inmates should be locked away in cells, without entering into the discussion about the merits or morality of such action, is important to note that the inmates in the Cebu prison are still awaiting trial, some for more than five years). However, one needs to think what the situation would be in a different country where the doctrine of fair use is non-existent and where due to the imposition of TRIPS that happened in the 1990s, now been extended through TRIPS-Plus via free trade agreements, the permitted uses are limited to pay and listen in private (even getting to many friends in a party can be infringement by public performance). Should an activity that serves society be subject to the dictates of ever expanding IP rights to satisfy the greed of some record companies? (please, do not start with the “poor author and musician” because I think that it has been properly clarified that with the exception of when asking for stronger IP rights in Congress, the industry does not give a damn about them). Just another small example of why copyright in particular and IP in general need to be kept under a very tight control and not be subject to the desires of a couple of big associations…but the trend seems to be the opposite.

Computer Law conferences in Latin America

Erick has sent the list of forthcoming Computer Law conferences organized by Alfa-Redi (of which I am member of the advisory board). Alfa-Redi’s conferences are a classic and some of them have been pioneers on the topic in Latin America and internationally (and they offer you the possibility of visiting exotic places :)

VII Congreso Andino de Derecho Informatico [Andean Conference of Computer Law]
19-21 de Septiembre, Cali (Colombia)
http://virtual.usc.edu.co/congresoderecho

VII Congreso Iberoamericano Independiente de Nombres de Dominio, Numeros IP e Internet Governance [Iberoamerican Conference on Domain Names, IP Numbers and Internet Governance]
20 de Noviembre, Loja (Ecuador)
http://www.utpl.edu.ec/derechoinformatico

V Congreso Latinoamericano de Derecho Informatico [Latin American Conference of Computer Law]
21-23 de Noviembre, Loja (Ecuador)
http://www.utpl.edu.ec/derechoinformatico

VII Congreso Mundial de Derecho Informatico/VII World Congress of Computer Law
3-7 de Diciembre, San Juan (Puerto Rico)
http://www.alfa-redi.com/viicongreso/

iPhone locking code cracked, and it is legal!

CNN reports that a group of anonymous hackers has cracked the code that locks iPhones into the AT&T wireless system (mobile network in this side of the Atlantic). Following CNN, when one of the hackers, only identified as Liu, was “asked if he thought modifying the iPhone was legal, he said "That's a very good question. I truly believe it is."”, and, although law is not a matter of faith (churches are for that), it seem very very likely that he is right. As reported in November 2006, the US Library of Congress's Copyright Office approved its Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, which stated that

Persons making noninfringing uses of the following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) during the next three years.

And its number 5 said

Computer programs in the form of firmware that enable wireless telephone handsets to connect to a wireless telephone communication network, when circumvention is accomplished for the sole purpose of lawfully connecting to a wireless telephone communication network.

The software will be available at iPhone.Sim.Free any time soon, if you can get your hands on an iPhone and not get entangled into the two years contract with AT&T.

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…