Brain Institute's Clever Move

One of the more unexpected interests of Microsoft co-founder Paul Allen is the Allen Human Brain Atlas:

Using an innovative approach to human brain mapping, the Allen Institute is developing a one-of-a-kind resource for understanding genes at work in the human brain. Launched in May 2010, the ALLEN Human Brain Atlas is expected to provide insights that propel researchers to understand and discover new treatments for a variety of brain diseases and disorders, including Alzheimer’s disease, autism, schizophrenia and drug addiction.

To its credit, it has adopted a reasonably liberal licence:

You may use, copy, distribute, publicly perform, publicly display or create derivative works of the Materials for research or noncommercial educational purposes or for your own personal noncommercial purposes.

Interestingly, it has this rider:

Freedom to Innovate and Rights to Improvements

You may, and are encouraged to, develop new methods, applications, interfaces or other inventions or works that improve the use of, and build upon, the Materials (collectively, “Improvements”). In order to make the Materials available to you and others in the research community, however, the Allen Institute must preserve its freedom to innovate. If you develop an Improvement based on or utilizing the Materials, and you obtain any proprietary rights in or to that Improvement, you and your successors or assigns agree not to assert such proprietary rights against the Allen Institute or its successors or assigns for its or their use of any Improvement independently developed by or on behalf of the Allen Institute that might otherwise infringe such proprietary rights. Additionally, the Allen Institute retains its rights, title and interest in any Materials that are part of or are used by you to create an Improvement.

That's a clear recognition of the fact that "proprietary rights" like patents cut across the "freedom to innovate". It's a pity that the Allen Institute didn't go further, and insist that all improvements be made freely available to everyone, but it's a start.

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Enclosing the Ocean Commons

The oceans belong to everyone - well, more or less. That is, they form a classic commons. But of course, that fact doesn't stop people claiming that they own stuff even here:

Molecules derived from marine resources and used for medical applications were worth over $1 billion in 2005, and heat-stable enzymes obtained at undersea vents were worth $150 million. Not surprisingly, the business community has responded by patenting genes derived from marine organisms; the authors were able to identify over 8,500 sequences derived from a total of 520 species in a US gene patent database.

This is a double insult to humanity. Genes are part of the DNA commons, and "belong" to everyone or to no one, but certainly not to any one entity. Those genes were extracted from marine animals, which form part of another commons, the oceans' ecosystems, that also belong to everyone or to no one.

But instead of simply recognising those commons, and letting everyone benefit from them directly, the best the patent maximalists can come up with is a cartel, a.k.a. patent pool:

they also suggest that, in the case of marine materials, a patent pool organized within this framework might improve access to genetic information and distribute the risk and profits broadly among far more nations, rather than limiting it to the few countries that can afford high-throughput DNA sequencing.

The logic here seems to be that of course we need patents otherwise nobody will go to the trouble of sequencing all these interesting organisms. What this overlooks is that the cost of sequencing genomes has come down from a billion dollars (for the first human genome) to a few thousand. Next year it will probably be under $1000, and the year after that a few hundred. In a decade, sequencing will cost almost nothing.

What this means is that, once more, intellectual monopolies are being given away needlessly - no quid pro quo is in fact necessary because practically anyone will be able to do this for very low cost. And once again it's you and me who lose out, as knowledge is sent to the intellectual equivalent of Davey Jones's Locker....

Ready for the IPRED Consultation?

This is just some quick advance warning that the deadline for submitting comments to the IPRED consultation is drawing near: 31 March 2011. I'll be publishing my own thoughts next week, but meanwhile, here's some background info for you to mull over.

On Open Enterprise blog.

Ethics of Intellectual Monopolies: the Video

I was pleased to discover last night that the video of my talk at FSCONS last November is now available:

Glyn Moody - Keynote: Ethics of Intellectual Monopolies from FSCONS on Vimeo.

Real masochists may wish to sing along using my presentation slides:

Glyn moody: ethics of intellectual monopolies - fscons 2010

View more presentations from glynmoody

Which just goes to show that you can have too much of a good thing...

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UK Independent Review of "IP" and Growth

A couple of weeks ago I wrote about the UK's ”Independent Review of Intellectual Property and Growth”, which is currently soliciting submissions from interested parties. The corresponding Web site is very helpful, providing background information and an entire section that seeks to explain what exactly the review is looking for.

On Open Enterprise blog.

Fighting Openness with New Corporate "Rights"

The opposition between openness and so-called "rights" - which are typically state-granted monopolies like copyright and patents - becomes clearer by the day. But it is extraordinary is that those holding those monopolies think they need more - not least to fight recent minor gains in the field of openness and transparency. Here's some deeply troubling news:

To what extent will a right-wing French MP sympathetic to big business and French government's ongoing manoeuvres to create a "corporate confidentiality" label endanger critical reporting on corporations and business transparency?

Last week, French right-wing MP Bernard Carayon in an interview for the website Rue89 boldly stated "I claim that the State and private companies should also benefit from physical persons' right to privacy. [...] Companies should be allowed to define for themselves which information remains secret [...]."

Specifically:

Carayon wants to increase protection for "economic information" by introducing a three-year prison sentence and a 375.000€ fine for anyone found guilty of breaching “the confidentiality of information of an economic nature".

This would clearly have a chilling effect on efforts by whistle-blowers to expose corporate wrong-doing. But it gets worse, much worse.

The French government, already one of the chief enemies of a free and open Internet (think HADOPI) wants all of Europe to give business this new "right":

the French government, through the Inter-ministerial Delegation on Economic Intelligence (a high-level informal body gathering officials from the Ministries of Defence, Interior, Research, Budget, Environment, Foreign Affairs and the Economy, and that now directly reports to the French Presidency), is also working with a number of big French business lobbies (Medef, AFEP, CDSE, CGPME, Chambers of Commerce...) to design new legislation intended to create a new legal label, “corporate confidentiality”, to protect corporate information that is not covered by existing intellectual property laws. According to the head of this body, Olivier Buquen, this will cover “all strategic information, which can be, depending on the company, a client's database, a business plan or the details of a partnership […] we wish to simplify legal procedures for companies, and to create penalties that are severe enough to act as a deterrent. Our text will foresee legal proceedings against whoever steals or leaks a company's key information.”

For a land that once believed in liberty and equality, never mind the fraternity, these are shameful proposals, and confirm the present French government's pro-big business, anti-consumer attitudes. We need to fight these now before they get too far in the system and thus harder to root out - do read the whole of the excellent and detailed post from which these excerpts were taken. (Via @CountCulture.)

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The Unacceptable Face of Copyright

Open access is about making copies of publicly-funded research available freely online. This stems from the belief that (a) having paid for it, the public has a right to see it and (b) a general view that access to knowledge should not be restricted to those that can pay for it (not least because it is precisely those that *cannot* pay who need it most).

Against that background, and of the growing success of open access in bringing knowledge to the developing countries, this is disgusting:

From 4 January Elsevier Journals withdrew access in Bangladesh to 1610 of its publications, including the Lancet stable of journals, which had been available through the World Health Organization’s Health Inter-Network for Access to Research Initiative (HINARI) programme. HINARI was set up in 2002 to enable not for profit institutions in developing countries to gain access online to more than 7000 biomedical and health titles either free or at very low cost.

Springer has withdrawn 588 of its journals from the programme in Bangladesh and Lippincott Williams and Wilkins 299 journals. The American Association for the Advancement of Science and the American Society for Animal Science have withdrawn access to, respectively, two and three of their journals.

To add insult to injury, some of the articles published in those titles are by researchers who now cannot read them:

Tracey Koehlmoos, head of the health and family planning systems programme at the International Centre for Diarrhoeal Disease Research in Dhaka, said, “We are a little less than 300 scientists eking out world class research on a shoestring budget without the purchasing power capacity of a big university in the West. HINARI has been our lifeline. My colleagues publish in many of these journals, and now we won’t even have access to our own papers.”

Companies publishing academic journals typically enjoy a profit margin of 30%; providing them free to scientists in *non-profit organisations* in developing countries will have an infinitesimal effect on their bottom lines.

It's sheer, unadulterated greed that seeks to squeeze some money out of those that have precious little of it, in effect stopping them spending it elsewhere where it is sorely needed. It wouldn't surprise me to learn that people will die as a knock-on consequence of that diversion of resources.

I do wonder how the well-paid fat-cats running these huge publishing conglomerates (disclosure: I once worked for part of Reed-Elsevier, so I have some experience of these things) look at themselves in the mirror after making decisions like this.

But at least their selfish and callous action does helpfully underline one of the big problems with copyright: the fact that it allows companies that didn't even produce the research that they publish, and to which they very often add very little value themselves, to decide who gets to read what ought to be the common heritage of humanity. In other words, it's an intellectual monopoly that is wielded with only profit maximisation in mind.

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I, For One, Welcome Our New Patent Overlords

A significant event took place yesterday: potentially the biggest software patent troll of all has finally woken from its slumbers:

Today Intellectual Ventures (“IV”) enforced its rights and filed patent infringement complaints in the U.S. District Court of Delaware against companies in the software security; dynamic random access memory (DRAM) and Flash memory; and field-programmable gate array (FPGA) industries.

On Open Enterprise blog.

The British Library's Future: Shiny, Locked-Down Knowledge?

Yesterday, Computerworld UK carried an interesting report headed “British Library explores research technologies of the future”. Here's what it hopes to achieve:

On Open Enterprise blog.

Intellectual Monopolies, the Open Net and ACTA

Well, it was bound to come one day, but it's still shocking:

A group of senators want to hand the U.S. Department of Justice the power to shut down Web sites dedicated to the illegal sharing online of film, music, software, and other intellectual property.

"The Combating Online Infringement and Counterfeits Act will give the Department of Justice an expedited process for cracking down on these rogue Web sites regardless of whether the Web site's owner is located inside or outside of the United States," according to a statement from Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, and committee member Sen. Orin Hatch (R-Utah).

Under the proposed legislation, the Justice Department would file a civil action against accused pirate domain names. If the domain name resides in the U.S., the attorney general could then request that the court issue an order finding that the domain name in question is dedicated to infringing activities. The Justice Department would have the authority to serve the accused site's U.S.-based registrar with an order to shut down the site.

According to a staffer from Leahy's office, if the site resides outside the United States, the bill would authorize "the attorney general to serve the court order on other specified third parties, such as Internet service providers, payment processors, and online ad network providers."

So let's unpick that a little.

Once more, rather than fix their broken business models, the media and software industries want special "protection", with access to the most important medium to be turned off simply because it suits them. This places the maintenance of government-supported monopolies in a couple of sectors above things like the rights of hundreds of millions of users.

For note that this is effectively censorship by fiat: the Justice Department can apparently simply decide which sites are hosting infringing material, and have them shut down. Due process doesn't seem to enter into it, and if passed you can be sure this legislation will be used widely and abusively.

But there's worse: the US wants to arrogate these powers to itself even if the Web sites are outside its territory. Since much of the Internet's infrastructure is run from the US, that's a real threat. It's also the strongest argument so far why we need to decentralise the Internet further, and remove it from the influence of any one country - including the US.

There's another important aspect, too. One of the constant refrains during the ACTA negotiations is that the latter won't force the US, say, to introduce new laws. It looks like that will be true - because the US is introducing them anyway. But make no mistake, this kind of censorship lies at the hart of ACTA.

The choice is stark: intellectual monopolies or an open Internet - you can't have both....

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Welcome to the Troll Economy

It began, perhaps, with SCO's insane attempt to obtain money from IBM and others for alleged infringements of its code. It proceeded with the music recording industry's increasingly vicious but fruitless threats to ordinary users, expanding more recently into the film business. Now, the Troll Economy has now come to the world of words:

Borrowing a page from patent trolls, the CEO of fledgling Las Vegas-based Righthaven has begun buying out the copyrights to newspaper content for the sole purpose of suing blogs and websites that re-post those articles without permission.

Strangely, perhaps, I think this is a great development. As the world of music shows, once rights-holders start making unreasonable demands, the implicit compact with the public is broken, and people no longer respect a copyright system that does not even attempt to treat them fairly.

The Troll Economy will simply lead to more people rejecting intellectual monopolies altogether, sowing the seeds of its own destruction. Troll away, chaps....

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German Publishers Want More Monopoly Rights

Here's an almost unbelievable piece about what's happening in Germany right now:

It looks as if publishers might really be lobbying for obtaining a new exclusive right conferring the power to monopolise speech e.g. by assigning a right to re-use a particular wording in the headline of a news article anywhere else without the permission of the rights holder. According to the drafts circulating in the internet, permission shall be obtainable exclusively by closing an agreement with a new collecting society which will be founded after the drafts have matured into law. Depending on the particulars, new levies might come up for each and every user of a PC, at least if the computer is used in a company for commercial purposes.

Well, obtaining monopoly protection for sentences and even parts of sentences in a natural language appears to be some kind of very strong meat. This would mean that publishers can control the wording of news messages. This comes crucially close to private control on the dissemination of facts.

But guess what? Someone thinks that German publishers aren't asking for *enough*, as the same article explains:

Mr Castendyk concludes that even if the envisaged auxiliary copyright protection for newspaper language enters into law, the resulting additional revenue streams probably would be insufficient to rescue the publishing companies. He then goes a step further and postulates that publishing companies enjoy a quasi-constitutional guarantee due to their role in the society insofar the state has the obligation to maintain the conditions for their existence forever.

...

Utilising the leveraging effect of this postulated quasi-constitutional guarantee, Castendyk demands to amend cartel law in order to enable a global 'pooling' of all exclusive rights of all newspaper publishers in Germany in order to block any attempt to defect from the paywall cartell by single competitor as discussed above.

This is a beautiful demonstration of a flaw at the heart of copyright: whenever an existing business model based around a monopoly starts to fail, the reflexive approach is to demand yet more monopolies in an attempt to shore it up. And the faster people point out why that won't solve the problem, the faster the demands come for even more oppressive and unreasonable legislation to try to head off those issues.

And make no mistake: if Germany adopts this approach, there will be squeals from publishers around the world demanding "parity", just as there have been with the term of copyright. And so the ratchet will be turned once more.

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EU's Standard Failure on Standards

Let's be frank: standards are pretty dull; but they are also important as technological gatekeepers. As the shameful OOXML saga showed, gaining the stamp of approval can be so important that some are prepared to adopt practically any means to achieve it; similarly, permitting the use of technologies that companies claim are patented in supposedly open standards can shut out open source implementations completely.

Against that background, the new EU report “Standardization for a competitive and innovative Europe: a vision for 2020” [.pdf] is a real disappointment. For something that purports to be looking forward a decade not even to mention “open source” (as far as I can tell) is an indication of just how old-fashioned and reactionary it is. Of course that omission is all of a piece with this attitude to intellectual monopolies:

The objective is to ensure licences for any essential IPRs contained in standards are provided on fair, reasonable and non-discriminatory conditions (FRAND). In practice, in the large majority of cases, patented technology has been successfully integrated into standards under this approach. On this basis, standards bodies are encouraged to strive for improvements to the FRAND system taking into consideration issues that occur over time. Some fora and consortia, for instance in the area of internet, web, and business process standards development have implemented royalty-free policies (but permitting other FRAND terms) agreed by all members of the respective organisation in order to promote the broad implementation of the standards.

This is clearly heavily biased towards FRAND, and clearly hints that royalty-free regimes are only used by those long-haired, sandal-wearing hippies out on the Well-Weird Web.

But as readers of this blog well know, FRAND is simply incompatible with free software; and any standard that adopts FRAND locks out open source implementations. That this is contemplated in the report is bad enough; that it is not even acknowledged as potential problem is disgrace. (Via No OOXML.)

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The Economics of Copyright

One of the problems with the debate around copyright is that it is often fuelled more by feelings than facts. What is sorely lacking is a hard-nosed look at key areas like the economics of copyright. Enter "The Economics of Copyright and Digitisation: A Report on the Literature and the Need for Further Research” [.pdf].

On Open Enterprise blog.

Let's Make the Visually Impaired Full Digital Citizens

As I wrote recently in my Open... blog, copyright is about making a fair deal: in return for a government-supported, time-limited monopoly, creators agree to place their works in the public domain after that period has expired. But that monopoly also allows exceptions, granted for various purposes like the ability to quote limited extracts, or the ability to make parodies (details depend on jurisdiction.)

On Open Enterprise blog.

How They Stole the Public Domain

Part of the quid pro quo of copyright is that works are supposed to enter the public domain after a limited period of monopoly protection. Trouble is, the copyright maximalists and their friends in power have managed to keep jacking up that period, meaning that more and more of our cultural heritage is locked away for decades, released only long after the death of the author.

Rufus Pollock has now quantified how much we are losing:

if copyright had stayed at its Statute of Anne level, 52% of the books available today would in the public domain compared to an actual level of 19%. That’s around 600,000 additional items that would be in the public domain including works like Virginia Woolf’s (d. 1941) the Waves, Salinger’s Catcher in the Rye (pub. 1951) and Marquez’s Chronicle of a Death Foretold (pub. 1981).

For comparison, in 1795 78% of all extant works were in the public domain. A figure which we’d be close to having if copyright was a simple 15 years (in that case the public domain would be a substantial 75%).

Imagine what today's artists could have done with free access to all those works: it's not just the past's creativity that's been stolen, but the present's too.

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Hacking through the Software Patent Thickets

Most people in the hacking community are well aware that patents represent one of the most serious threats to free software. But the situation is actually even worse than it seems, thanks to the proliferation of what are called patent thickets. To understand why these are so bad, and why they represent a particular problem for software, it is necessary to go back to the beginning of patent law.

On The H Open.

Copyright: a Conditional Intellectual Monopoly

Here's a nice move from the Internet Archive:

More than doubling the number of books available to print disabled people of all ages, today the Internet Archive launched a new service that brings free access to more than 1 million books — from classic 19th century fiction and current novels to technical guides and research materials — now available in the specially designed format to support those who are blind, dyslexic or are otherwise visually impaired.

And here's a nice analysis of that move:

The new service demonstrates the principle behind the Chafee Amendment: that copyright is a conditional monopoly, not a property right, and that when we decide the monopoly is hampering an important public purpose, we can change it. The Chafee Amendment is an open acknowledgement that monopoly-based distribution was not serving the needs of the blind, the visually impaired, or or dyslexic people very well, and that fixing that situation is simply a policy decision. It reminds us that copyright itself is a policy decision, and that if it is not serving the public well, we can change the policy.

A double win, then: for the visually impaired, and in terms of reminding us about the true nature of copyright as a conditional intellectual monopoly.

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Open Source Drug Discovery

One of the inspirations for free software was the scientific method. So it's deeply ironic that science finds itself increasingly unable to share information because of concerns about intellectual monopolies - either infringing on them, or losing the power to create them. This is particularly tragic in the field of medical research, because it means that people are suffering, maybe even dying, as a result.

Against that rather dismal background, here's a ray of hope from India:

OSDD is a CSIR Team India Consortium with Global Partnership with a vision to provide affordable healthcare to the developing world by providing a global platform where the best minds can collaborate & collectively endeavor to solve the complex problems associated with discovering novel therapies for neglected tropical diseases like Malaria, Tuberculosis, Leshmaniasis, etc. It is a concept to collaboratively aggregate the biological and genetic information available to scientists in order to use it to hasten the discovery of drugs. This will provide a unique opportunity for scientists, doctors, technocrats, students and others with diverse expertise to work for a common cause.

The success of Open Source models in Information Technology (For e.g., Web Technology, The Linux Operating System) and Biotechnology (For e.g., Human Genome Sequencing) sectors highlights the urgent need to initiate a similar model in healthcare, i.e., an Open Source model for Drug Discovery.

This is a great idea, especially for a country like India that has much to gain from opening up the world of drug development so that people can collaborate on that "common cause", and from refusing to pay exorbitant intellectual monopoly taxes.

It's already produced results:

Indian scientists have mapped the Mycobacterium tuberculosis genome, a first of its kind achievement that gives hope of discovering a cost effective drug for the disease that kills at least 330,000 Indians every year.

"Our scientists along with over 100 science students from several universities have done this within a few months. We hope within 18-24 months we will be able to take one molecule to the clinical trial stage," Council for Scientific and Industrial Research (CSIR) chief Samir Bramhachari told IANS.

...

"OSDD is a completely new formula across the world. Here we are making all our progress available to public. Anyone can take advantage and develop a drug based on our research. The aim here is not patents but drug discovery for a neglected disease," said Rajesh Gokhle, a senior scientist associated with the project.

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Digital Economy Act: Built on Sand

One of the many frustrating aspects of the recent debate on the Digital Economy Bill was the constant repetition of two major inaccuracies. The first, that unauthorised file sharing is theft, argues an appalling level of legal literacy among our elected representatives. Such file sharing is actually the infringement of a time-limited, government-granted monopoly, which is very different from stealing your bicycle (for a handy illustration of the difference, don't miss this.)

On Open Enterprise blog.