Life Patents

The New York Times posted an article about the growing reaction to the so-called "life patents" - patented pieces of genetic code for diseases or genetically modified foods, etc. Stephen Hilgartner, a professor at Cornell, has recently released a paper trying to identify "acceptable intellectual property" in the face of life and death situations. As I've covered before, 20% of your genetic code is already patented meaning that royalties are often paid for disease tests or treatments.

Medical research is a tremendously expensive and important undertaking, but if money is coming between saving lives, there is no place for intellectual property here. Research labs need to find other revenue streams - like grants and donations.

[Via Against Monopoly]

Barenaked Ladies Get It

The Barenaked Ladies, the wildly popular Canadian band, was interviewed by Canadian TV recently. The group's most recent album is being released on a flash drive without DRM, but this is only one of the forward-thinking moves by the band. They recognize that the "fans have decided how they want their music" and the industry needs to follow.

The Future of Yahoo! and DRM

TalkCrunch has an interview with two Yahoo! Music executives about the future of DRM as it relates to music. Yahoo! has experimented with DRM-free music downloads in the past and according to the executives, expect to see "a large portion" of their catalogue as MP3 downloads by Christmas of this year.

Links for 1/26/2007

Nature (the journal) has bad news: it seems the "pit bull of public relations" has been hired by some for-profit scientific journals to attack open access journals.

When you have to start a high profile PR war, it seems that your case has already been lost to those in the field.

Kahle Follow-Up

Counsel for the plaintiffs, Lawrence Lessig, has posted his thoughts on the decision here. He says pretty much what he has said before and makes no mention of his plans to pursue the case in the future.

Also, Tim Lee who usually writes for the great TLF, has an article over at Ars Technica about the case. It might be good to send to people new to the subject.

Abolish the FCC?

The FCC has some very vocal enemies. Some are ranting fools. Jack Shafer and Declan McCullagh do not fall in that category. Read their thoughtful reasons for abolishing the FCC here and here.

Links for 1/23/2007

Professor Boyle identifies for a wider audience what we already know: sharing makes you popular.

IBM, HP, and Intel form the Linux Foundation to promote the Windows alternative.

Court Decides Against Plaintiffs in Kahle

Reuters reports that the 9th Circuit Court has decided in favor of the respondents and ruled against Brewster Kahle in his case against copyright term extensions. As was painfully obvious from the oral arguments, the Court failed to see the difference between the Eldred case and this one.

"They (the plaintiffs) make essentially the same argument, in different form, that the Supreme Court rejected in Eldred. It fails here as well," the eight-page opinion written by Ninth Circuit Judge Jerome Farris stated.

The full decision is here.

See my previous coverage of Kahle v. Gonzalez.

Update: The Stanford Law Center for Internet and Society acted on behalf of the plaintiffs (Kahle and Prelinger). Christopher Sprigman, attorney at the Center, has his reaction here.

Hollywood Hears the Scream of Creative Commons

This is cool: the new major motion picture "Children of Men" uses a Creative Commons-licensed scream. [Link]

Economically Sensible Copyright Policy

Numerous studies have supported what many intuitively assume - free access to music improves sales. After all, very few would by a CD without having heard the music before. Regardless, the RIAA has taken a no-hold-barred approach to attacking what it sees as a danger to its business - file-trading.

At the same time that the RIAA has taken its backwards approach to copyright enforcement, video game companies have been more reasoned. Machinima (machine + cinema) is where artists use video game environments and characters for other, movie-like purposes.

Perhaps the most unusual thing about machinima is that none of its creators are in jail. After all, they’re gleefully plundering intellectual property at a time when the copyright wars have become particularly vicious. Yet video-game companies have been upbeat—even exuberant—about the legions of teenagers and artists pillaging their games. This is particularly bewildering in the case of Red vs. Blue, because Halo is made by Bungie, a subsidiary of Microsoft, a company no stranger to using a courtroom to defend its goods. What the heck is going on?

As it turns out, people at Bungie love Red vs. Blue. “We thought it was kind of brilliant,” says Brian Jarrard, the Bungie staff member who manages interactions with fans. “There are people out there who would never have heard about Halo without Red vs. Blue. It’s getting an audience outside the hardcore gaming crowd.”

Sure, Rooster Teeth ripped off Microsoft’s intellectual property. But Microsoft got something in return: Red vs. Blue gave the game a whiff of countercultural coolness, the sort of grassroots street cred that major corporations desperately crave but can never manufacture. After talking with Rooster Teeth, Microsoft agreed, remarkably, to let them use the game without paying any licensing fees at all. In fact, the company later hired Rooster Teeth to produce Red vs. Blue videos to play as advertisements in game stores. Microsoft has been so strangely solicitous that when it was developing the sequel to Halo last year, the designers actually inserted a special command—a joystick button that makes a soldier lower his weapon—designed solely to make it easier for Rooster Teeth to do dialogue.

“If you’re playing the game, there’s no reason to lower your weapon at all,” Burns explained. “They put that in literally just so we can shoot machinima.”

Other game companies have gone even further. Many now include editing software with their games, specifically to encourage fans to shoot movies. When Valve software released its hit game Half-Life 2 last year, it included “Faceposer” software so that machinima creators could tweak the facial expressions of characters. When the Sims 2—a sequel to the top-selling game of all time—came out last year, its publisher, Electronic Arts, set up a Web site so that fans could upload their Sims 2 movies to show to the world. (About 8,000 people so far have done so.)

It is time the RIAA took a page from the EA and Bungie's book (or would that be take an story-line from their FPS?) and encouraged derivative creativity.

The quote was from this great article.

Ode to the RIAA

David Pogue, NY Times tech writer, is a former musician and writes a great song about the RIAA's legal follies. To the tune of Y.M.C.A.:

Young man,
You were surfing along,
And then, young man,
You downloaded a song,
And then, dumb man,
Copied it to your ‘Pod,
Then a phone call came to tell you:

You’ve just been sued by the R.I.A.A.!
You’ve just been sued by the R.I.A.A.!
Their attorneys say, you committed a crime,
And there’d better not be a next time!

They’ve lost their minds at the R.I.A.A.!
Justice is blind at the R.I.A.A….
“You’re depriving the bands! You are learning to steal,
You can’t do whatever you feel!”...

[More]

Two Good Reads on DRM

The Dangers of DRM and the 10 Arguments against DRM are worth the 10 minutes.

Check out other DRM-related posts by clicking the tag below.

Record "Cassette to Cassette"

Here's a 1981 commercial from Wal-Mart:


I bet you'd never see something like this today (technological obsolesces aside).

Via [The Consumerist]

Quote of the Day

“The machine is neither a god nor a devil,” the German music critic Hans Stuckenschmidt wrote in 1926, in an essay on the mechanization of music.

This idea that technology is neither good nor evil relates to much more than music.

[Link]

Realization of the Day

Reading this made me realize (one reason) why intellectual property is the way it is. When laws were written and copyright evolved, it was nearly impossible to separate the information from the physical holder (such as paper, canvas or film). The closest IP law came was the idea/expression dichotomy which is the principle that you cannot copyright or patent an idea, only the expression of that idea.

In a digital world, the difference between physical property and information is obvious. The pixels on your screen convey very different information every day. Digital content is not intimately tied to physical property. Perhaps if copyright was developed from scratch in today's world, it would be very different.

Bad Ideas Head North

It seems the restrictions of the American DMCA might be heading to Canada. I'm in the middle of final exams, so I won't be able to expand on this; suffice it to say: This is a bad idea for Canada.

New York Times Awakes to DRM

Under the cover of iPhone-hysteria, the New York Times have published an article detailing the restrictions of DRM on the iPod and, now, the iPhone.

Even if you are ready to pledge a lifetime commitment to the iPod as your only brand of portable music player or to the iPhone as your only cellphone once it is released, you may find that FairPlay copy protection will, sooner or later, cause you grief. You are always going to have to buy Apple stuff. Forever and ever. Because your iTunes will not play on anyone else’s hardware.

In the past, owning meant that you had the right to use your music as the law saw fit. You could listen to a CD or tape in a car or in your friends stereo. Heck, you could even toss those CDs in the fire! Now, Apple (or Microsoft if you use their services) determines what you can do with your music. If you want to end their control, I guess you'll have to toss the entire iPod into the fire...

It is nice that the mainstream media is picking up on these topics. Perhaps we'll see an end to DRM in 2007.

Link for 1/11/2006

Ask An Attorney
A prominent attorney's take on the iPhone issue.

[Thanks for the link, Rogo]

Inside the Decision to Use the iPhone Name (From an Outsider)

[Digg This]

Trademarks exist to preserve the integrity of brands and avoid consumer confusion. For example, when one buys a Rolex watch, he can assume it has a certain level of quality. This is because only one firm can legally produce watches branded as Rolex.

In the case of the iPhone, Cisco has owned the trademark since buying Linksys in 2000. Prior to that, a Linksys subsidy had owned the rights to iPhone since 1996. Cisco's complaint claims that the Apple iPhone will confuse a consumer who may want the Cisco iPhone - they are both modern telephony devices.

I'd like to look at it from the other way. Apple is famous for it products branded as iSomething - iPod, iLife, iWork, iChat, iMac, and iTV (later changed to Apple TV, but more on that later). Although Cisco does have the official rights to iPhone, I would argue that the consumer is more likely to be confused by a product named the iPhone which is not of Apple quality. Unluckily, Cisco does own the rights.

So, what is happening? I have a couple hunches:

Jobs and Co. have, according to him, been working on the iPhone for 2.5 years. According to Cisco executives, Apple repeatedly approached them in hope of using the iPhone name. Apparently Apple refused to agree to the licensing terms offered by Cisco.

So, at this point, Apple faced a couple opportunities:

1. Agree to Cisco's terms and use iPhone
2. Go to court to receive rights to the iPhone
3. Find a different name
4. Use iPhone without obtaining the right

Obviously they chose option 4, but why? Let's see why 1-3 were not chosen:

1. Who knows what Cisco's terms were? They undoubtedly knew the iPhone will be popular and might have tried to profit from this. Often, firms patent plenty of processes and make money off the licensing agreements. Perhaps Apple didn't want to have to raise the price even more. Perhaps they objected on ethical grounds. Regardless, Cisco and Apple were not able to work together.
2. This option was probably killed immedietly. Why? Jobs is so secretive he didn't even want to get FCC approval before announcing the iPhone. Both FCC-approval and a lawsuit would alert the public to the existence of the iPhone - something the Apple employees' families weren't even allowed to know.
3. The iSomething has become iconic (forgive me) for Apple. iPhone had already entered the vernacular of gadget-geeks and Apple fanboys; when Jobs said it was to be called the iPhone, MacWorld exploded in applause. Calling it something else would be a disappointment to many.
4. This, evidently, is what they chose to do. Risking a lawsuit against Cisco, who has much deeper pockets, is a dangerous move on the surface, but I think it is the best option:
1. At this point, it is a game of chicken. Cisco sees the excitement and doesn't want to be seen as a killjoy. Apple cannot afford an injunction preventing the sale of this product. They will most likely settle.
   
2. Or, perhaps, Cisco will win a lawsuit and Apple will be forced to change the name. At this point, Jobs, in his mastery, will be able to paint Cisco as the bad guy and change the name to Apple Phone.

In fact, it seems as if Apple is already preparing for a possible title change. At the keynote, Jobs renamed the iTV to Apple TV. Why kill the brand affiliation? He might be preparing to end the use of iSomething and use Apple Something.

It should sure be interesting to watch, but what I'd give to see the strategizing from the inside...

Was this the best option for Apple? What would you have done?

[Digg This]

[Disclaimer: iPhone is a registered trademark of Cisco. Well, that's what they tell me, anyways. Apple seems to think different. But I guess they like to do that.]

Surprise, Surprise

Cisco, the owner of Linksys has reportedly sued Apple, Inc. concerning the new Apple iPhone.

Reportedly, the two had been in negotiations. Cisco, who has owned the iPhone trademark since 2000 recently introduced a WiFi phone with the disputed name. It seems, that Apple has decided to fight this one in court instead of agreeing to the licensing terms of Cisco.

Remix Culture

Thought I'd share this great piece of remix culture:



Via [Sivacracy]

Worthy of 200+ Patents?

Apple released the much speculated iPhone today, and, quite frankly, this product has excited me like no other ever has. They have completely reinvented the iPod, cell phone and mobile Internet in a truly unique way.

In his keynote, which I recommend watching, Steve Jobs mentions in his humorous way that they have patented the product; the crowd erupted into applause. Later he said they had applied for more than 200 patents and planned to "defend" the iPhone technologies. Again, applause for the master presenter.

Absolutely, the iPhone is terrificly innovative, and I believe IP rights should exist in a balanced way for unique creations, but 200? Further, a new study reinforces the idea that patents do not always mean innovation.

See screen shots here and here. (Sorry, but Blogger was misbehaving.)

DRM on its Deathbed?

Wired has an article outlining why DRM might be on its deathbed:

1. The labels don't have a choice
2. Lawsuits might force Apple iTunes to interoperate
3. Thomson has endorsed MP3s
4. Amazon might begin to sell MP3s
5. Sony believes "DRMs are going to become less important"
6. People love AllofMP3.com
7. MP3 has a future

I would add that Yahoo, who sells music, has endorsed the death of DRM-stricken music.

Further news from BoingBoing says that EMI is abandoning DRM on CDs.

Let's hope DRM passes into the annals of history. Do you think we'll see the end of it soon?

Second Life Becomes Open Source

Second Life, the popular virtual world, today announced that it was becoming open source. Calling it "inevitable" they have released the source code for their cyberspace which has gained massive publicity.

Ethan Zuckerman, a fellow at the Berkman Center at Harvard, has long taken issue with the "residents" of Second Life giving value through their creations to a for-profit company, Linden Labs. In the same way that coders improve Firefox, Second Lifers improve Linden Labs product through the network effect. However, prior to today, it was a proprietary product.

Watch the following video to see Ethan and Charlie Nesson of Harvard debate the ethics of promoting Second Life as a proprietary product:


Update: It seems I spoke too soon. Linden Labs only released part of their code. As Ethan Zuckerman points out, the server code still remains closed.

The core objection I raised with Charlie a few weeks back is the fact that Second Life, at present, is a monopoly. If you decide that, for whatever reason, you no longer want to do business with Linden Labs, you’re anchored in place by the content you’ve created within their servers...For Second Life to become a platform I’d be willing to encourage educators like Charlie to use, it would need to offer its server code under a FLOSS license, making it possible for anyone competent enought to run a server to do so. This would allow users to pick and choose between services on the basis of reliability, cost, community and content - I could run a dirt-cheap Second Life server, but it’s possible that no one would come because there’s no content or users in my universe yet. It would also allow communities to implement different strategies to define and enforce appropriate behavior, allowing exploration of the governance issues Charlie is so interested in.

Who Controls the Internet?

The Internet was supposed to bring about the end of the nation-state system. It was to be a medium for uncensored, mass publication of information on every subject. It was to allow companies to cater to customers regardless of physical location.

And in many ways it has. But in many cases the cyberspace libertarians of the 1990s have begun to awake to a more depressing reality. Jack Goldsmith and Tim Wu's book, which I just finished, identifies the worldly forces controlling the intangible Net.

Who Controls the Internet is an approachable book which is an important reminder that the theoretical possibilities of the Internet are subject to very real constraints due to political, legal and physical realities.

The world without copyright that John Perry Barlow imagined has been invaded by the realities of litigious content owners. As it relates to copyright, this book is very important. Take the case of Australia's Joseph Gutnick:

After a report he found offensive was published online by the Wall Street Journal, Gutnick sued. Though the article was clearly legal under the American First Amendment, Australia's strict libel laws were on the side of Gutnick. Even though the material resided on an American server, the WSJ had to settle with Gutnick to avoid a loss in Australian court.

So, in effect, an American company had to obey Australian law. The legal barrier was raised due to stricter Australian law. Because multinational firms are the only Internet dwellers who have to abide by international law and because they have the resources to do so, the authors conclude that the average user is safe from such forms of governmental interference. However, for intellectual property, the bar is high across the board.

To join the World Trade Organization, nations must agree to abide to intellectual property treaties which are often more restrictive than their national laws. The result is an increase in copyright's terms regardless of cultural or legal history in the nation.

In sum, the authors do a tremendous job of providing anecdotal evidence to support the hidden themes of the Internet's governance. If you want to begin to understand the forces controlling the Internet, this is a must-read.

Howard 'Hollywood' Berman

The new head of the House Intellectual Property Subcommittee is, as expected, Howard 'Hollywood' Berman. The representative from Hollywood has, in the past, proposed legislation which would give private content firms police-like ability. It is no wonder that this supporter of restrictive intellectual property law has been the welcome receiver of more than a million dollars from those that would most benefit from increased IP.

Get some more information on this man's pocket liners.

[Image Source]

Timeframe for Change

In the speech Lessig recently gave 23C3, EFF co-founder John Perry Barlow questioned his outlook on reform. Watch the clip here as it outlines an important disagreement between two important men in the field.

Basically, Lessig believes that 'hybrid economies' which promote sharing while still turning a profit need to be nurtured and developed in order to make legislators change their views on copyright. As evidenced by the brilliant legal tools made available through Creative Commons, Lessig believes in working within the constraints of the current copyright regime.

In contrast, Barlow advocates massive civil disobedience by technologists and Internet users. He is of the belief that the continual cracking of DRM and sharing of copyrighted works will make for a world where legislators have no choice but to change the law to mirror culture.

Lessig believes we only have '5 years' to make the change from restrictive IP to free culture. Barlow, on the other hand, thinks that it is inevitable that we will move towards free, more open content as the younger generations grow up with the possibilities afforded by the personal computer.

Barlow extended his views in the brief following interview:

Link: sevenload.de

I am of the belief that these issues will become clear over time - especially to people who have grown up with YouTube, Napster, and Flickr.

What do you think? Will we run out of time or is change inevitable at the current (slow) rate?

100 Judges vs. 100 Million Users

CC-founder and free culture-guru Lessig has come to the conclusion that the proponents of balanced copyright must now work to convince the masses because the political and legal elite have forsaken the cause. Watch the comment here. This seems reasonable following the ridiculous Eldred decision and the judges reaction at the Kahle oral arguments.

I would, however, qualify the statement. The '100 million people' he thinks we must convince are not important due to the fact that they are not judges.

They are important because they will be judges.

They will be judges, legislators, artists and executives at major content companies.

Copy Protection Podcast

Security Now, part of the TWiT Netcast Network, is a weekly security podcast with Leo Laporte and Steve Gibson. Their most recent episode is all about next generation copy protection. Steve is brilliant and puts a lot of work into the show. This is a great way to spend an hour commute.

Remix Ze Frank

The Show with Ze Frank is a great daily 3-5 minute news show by Ze Frank. The humorous show takes a sarcastic approach to the happening of the world with often enlightening results. Also, Ze regularly breaks into song such as the one from today.

What's cool is he is inviting viewers to remix his song - made available here - and upload the changes. This is something not possible under the current copyright regime. It's good to see such a creative person embracing free culture.

(By the way, some of his great songs are here, here, and here.)

Legal Predictions for 2007

Wired has a nice (but rather superficial) article about the developing trends in technology law. The author, Jennifer Granick, identifies contract law and privacy as the two new themes for 2007.

Contract Law
Nearly every piece of software you use - from Windows to Firefox - has a license agreement to which you must agree in order to use the program. Known as 'End-User License Agreements' or 'Terms of Service' these contracts often limit liberties such as freedom of speech or fair use. Contracts allow private entities to surrender rights, but limits are present. For example, one cannot contractually sell oneself into slavery - even if both sides agree.

According to Granick,

The issue will not be resolved in 2007, but my prediction is that state legislatures and courts slowly move toward a middle ground that generally respects contracting, but limits the kinds of terms to which users can agree, in the interest of promoting customer rights and the public interest.

I think this is a fair assessment - the rights often relinquished are more salient than, say, fair use so legislators will have an easier time balancing the two interests.

Privacy
As mass surveillance has become remarkably more feasible, government oversight into personal lives is becoming more important. The warrant-less wiretaps of this past year demonstrate the strides government will take to protect the security of a nation. This has been an issue for decades, but the ease of surveillance will make it more important.

What the author misses, I believe, is the concerns raised by privacy invasions by private firms. The wealth of information we willing provide to companies like Google, Amazon or Verizon place them in a potentially exploitive position.

The 4th Amendment limits the government's ability to search. In contrast, consumers toss information at companies (I'm guilty, too), making 'search' unneccesary. As the AOL debacle demonstrates, privacy concerns are paramount for private firms, too.

Due to the unresolved nature of intellectual property online, I doubt I will have any lack of content in 2007, but I agree that these two ideas will continue to grow in importance.

Links for 1/1/2007

A Good Year for Linux
A nice post chronicling the positive developments this year for Linux.

Happy New Year!

These Bits Were Made for Copyin' ....

... and according to Cory Doctorow, that's just what they'll do.

In response to Edge.org's question for the New Year, Doctorow wrote:

There is no such thing as a copy-proof bit. There aren't even copy-resistant bits. Copying is what bits are for. They will never, ever get any harder to copy.

Doctorow is referencing DRM which attempts to stop users from copying digital content. However, no content protection system has proven resilient enough to stop copying. Just this past week the new DRM technology employed by HD DVDs was cracked to allow for backup copies.

There will always be a smarter person who can reverse engineer a DRM. And this, Doctorow believes, is a cause for optimism.