Colombia's SOPA Struck Down, But For Procedural Reasons

Back in April last year, we wrote about Colombia's own SOPA, the "Ley Lleras 2" copyright bill (it's version 2, because an earlier attempt to pass it failed.) This was rushed through by the Colombian government using an emergency procedure so as to have it ready as a grovelling welcome gift when President Obama came calling shortly afterwards. 

On Techdirt.

UK Judge Rules Even Archived News Articles Can Be In Contempt Of Court

Last week, the British policeman Simon Harwood was acquitted of killing a man during the 2009 G20 protests in London -- a controversial verdict given the video footage of the incident. In order not to prejudice their views, the jury was not informed that Harwood had been investigated a number of times previously for alleged violence and misconduct. 

On Techdirt.

Copyright Law is a 404 Not Found

It is a truism that slow-moving law cannot keep up with fleet-of-foot digital technology, so that makes the rare court decision dealing with the details of how people use the Web of particular importance. Here's an interesting case that has just been handed down.

On Open Enterprise blog.

LexPublica: Open Sourcing the Legal Process

Yet more innovation around open source ideas, from an outfit called LexPublica (with a clever URL, too):

There is a crying need for access to legal help. No one can afford lawyers. Individuals, professionals and small businesses can’t afford lawyers. Startups can’t afford lawyers. Big companies with large budgets for legal services struggle to afford lawyers. Even lawyers complain, genuinely, that they can’t afford lawyers.

LexPublica aims to solve this problem by opening up the world of legal knowledge to everyone.

The first practical step we’ll take is to make common contract templates available free of charge. These will include things that many businesses need, such as employment agreements, website development agreements and non-disclosure agreements (NDAs for short). The contract templates will be written in plain language and have supporting guides to help you use them properly.

It's plans are splendidly ambitious - nothing less than to create a global legal commons:

Tackling an enterprise of this magnitude requires an enormous team effort. LexPublica will need to be a global online community of lawyers and non-lawyers working together to create contract templates and informational guides for those templates.

The grand vision is to harness this community effort to create the reference source for contract templates generally, for practical legal information, and beyond that, for all legal knowledge across all areas of law. You might call it a global legal commons.

Think we're crazy? Wikipedia, Linux and other similar projects provide successful and similarly sized examples for us to follow.

And yes, it has a business plan:

There’s a commercial twin to LexPublica, called 8.5x14 (named after legal size paper). It will provide a wide range of commercial services, both for people and businesses who need legal services, and for the lawyers who serve them. These services will be built around LexPublica’s open content and open APIs.

As one example, imagine an online workspace to manage your business’s standard contract templates, your contract negotiations and your dealings with your lawyer. The service is simple contract management, something like the Basecamp project management web service, but for contracts and negotiations.

Wow, exciting stuff. (Via Rory MacDonald.)

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What are the Legal Implications of Cloud Computing?

To say that cloud computing is trendy would be an understatement: the topic is almost inescapable in the world of computing these days. I've written about it from the viewpoint of open source several times, because there are a number of important issues arising out of clouds: much of their infrastructure is based on free software, and there are interesting questions to do with licensing that clouds pose for applications. But one aspect almost never considered is even higher up the stack: the legal side of their use....

On Open Enterprise blog.

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Of RMS, Ethical Visions, and Copyright Law

As RMS emphasises again and again, at the heart of free software lies an ethical vision of sharing and mutual respect. Although open source blurs that vision somewhat thanks to the glasses of pragmatism that it wears, the basic idea is still there. And yet we talk relatively little about that ethical aspect, which is a pity, because it is both important and interesting.

Just how interesting can be seen in this splendid essay "Ethical Visions of Copyright Law" from James Grimmelmann, who is Associate Professor of Law, New York Law School. As its title makes clear, the focus is on copyright, but Stallman's approach to subverting copyright to make it more ethical occupies an important place in the argument. Here's part of the introduction:

copyright law imagines that we are ethical beings, capable of being creative and of being touched by the creativity of others, inclined to be sociable and to return good for good. It has in mind a deontic vision of reciprocity in the author-audience relationship. Or, more succinctly, authors and audiences ought to respect each other.

That may sound like a platitude, but it isn’t. Everyone agrees that authors and audiences ought to respect each other, but they come to blows over how that respect ought to be expressed. The Recording Industry Association of America (RIAA) thinks that audiences don’t respect authors enough; the Electronic Frontier Foundation (EFF) counters that it’s the authors who aren’t showing enough respect for audiences. Meanwhile, free software advocates and fans of the commons sketch pictures of respectful exchange that look very different from the marketplace exchanges that both the RIAA and EFF treat as normal.

We can learn some very interesting things about the state of the copyright debate by looking closely at those disagreements. When the EFF tells the content industries not to “sue their customers,” it’s making an ethical argument that’s the mirror image of the content industries’ call for people to “respect copyrights.” The arguments are the same, just directed at opposite sides of the author-audience relationship. Compare those arguments with the genuine radicalism in the way that some free software advocates don’t care whether programming remains a viable profession. They see legal restrictions on user freedoms as inherently unethical; no amount of software produced or programmers employed could justify them.

As scholars, we should pay attention to these ethical visions, because they are descriptively important to how people behave, because they affect the persuasiveness of our policy arguments in the public arena, and because they make provocative claims about what intellectual property law ought to look like. This essay will find evidence of these visions in the language and structure of intellectual property law, and in the rhetoric that activists use as they make arguments about intellectual property. These ethical visions link copyright law’s rules to a model of how those regulated by copyright law could and should behave.

As you might expect, the Creative Commons movement also figures largely, and the essay picks out an interesting fact about it:

To summarize, there’s a significant ambiguity in Creative Commons’ response to the copyright system. It could be saying (or could be seen to say) that the system is out of balance because authors have exclusive rights they don’t need and don’t want to use. It could also be saying (or could be seen to say) that the system is out of balance because authors have exclusive rights they shouldn’t have and shouldn’t be allowed to use. In either frame, its licensing strategy is a natural response designed to encourage a healthier balance. But the latter frame, let us be clear, is a challenge to the default ethical vision of copyright itself, not merely a critique of authorial behavior made from within that vision.

Great stuff - highly recommended.

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Take this Survey: It's the Law

As I've noted before, free software stands in an odd relationship with the law that governs it. On the one hand, free software could not exist sustainably without copyright - the GNU GPL depends on it for its power. On the other, copyright - and, even more, patents - are intellectual monopolies that represent the antithesis of everything that free software stands for.

Given that tension, it's clearly a good idea to understand how that works out on the ground, among the people who have to negotiate the legal minefields hemming in the act of coding. Sadly, there's not much research in this area, an omission that Thomas Otter hopes to remedy:

I’m labouring away at what must be one of the longest part-time PhDs ever. My research is looking at how software code and law work or don’t work together. However, there is light at the end of the tunnel. In order to add a bit of empirical juice to will be a rather dry theoretical legal tome, I’ve decided to do a survey.

He's particularly keen to get people from the world of free software participating in order to complement those from more traditional areas. You can find the survey here: it's not very onerous, and doesn't delve too deeply into anything heavy (I've filled it in and lived to tell the tale). And if you're looking for an incentive to do so beyond adding to the cairn of knowledge, both the raw results of the survey and Otter's analysis will be freely available later this year.

Laying Down the Law

Ever since RMS drew up the GNU GPL, code and law have been inextricably linked. Mark Radcliffe provides a good summary of the last year from a legal viewpoint:

Last year was the one of the most active years for legal developments in the history of free and open source (“FOSS”). http://lawandlifesiliconvalley.com/blog/?p=27 This year, 2008, has seen a continuation of important legal developments for FOSS. My list of the top ten FOSS legal developments in 2008 follows...

Code is Law is Code

Code and law have been inextricably mixed ever since Richard Stallman drew up the first GNU GPL. Indeed, in many ways, the logical processes for crafting both are similar - which is probably handy. Nonetheless, law does present special problems that hackers need to be aware of.

To provide some help, the Software Freedom Law Center has just put together a useful legal issues primer for open source and free software projects:

This Primer provides a baseline of knowledge about those areas of the law, intending to support productive conversations between clients and lawyers about specific legal needs. We aim to improve the conversation between lawyer and client, but not to make it unnecessary, because law, like most things in life, very rarely has clear cut answers. Solutions for legal problems must be crafted in light of the particulars of each client’s situation. What is best for one client in one situation, may very well not be best for another client in the same situation, or even the same client in the same situation at a later date or in a different place. Law cannot yield attainable certainty because it is dynamic, inconsistent, and incapable of mastery by pure rote memorization. This is why we do not provide forms or other tools for “do it yourself” lawyering, which are almost always insufficient and, in fact, can be very harmful to a project’s interests.

The specific topics addressed herein are:

1. copyrights and licensing,
2. organizational structure,
3. patents, and
4. trademarks.

They are presented in this order because that most closely aligns with the life-cycle of the legal needs of a typical FOSS project. When code is written, copyrights immediately come into being. The terms under which the owner of those copyrights allows others to copy, modify and distribute the code determine whether it is considered “free” and/or “open source.” Once a project gains speed, many benefits can be achieved by the creation of an organizational entity for the project that is separate from the project’s individual developers. After successful public release of a project, patent and trademark issues may arise that need attention.

German Court Gets It Badly Wrong

Bad decision, bad news:

the Court states that operators of Internet forums are liable for all comments posted there, even if the operator has no knowledge of their content.

OK, we'll just close the Internet down, then.