Misleading Figures Used To Puff Up Importance Of Intellectual Monopolies In Europe

We've noted before attempts to inflate the importance of copyright, patents and trademarks by including a bunch of other sectors that are only tangentially related to them when it comes to totting up their economic impact. For example, last year Mike wrote about a joint Department of Commerce/US Patent and Trademark Office "study" that included 2.5 million grocery store jobs in its definition of "IP-intensive" industries. 

On Techdirt.

Python Trademark At Risk In Europe: Python Software Foundation Appeals For Help

The open source programming language Python -- named after the British comedy series "Monty Python" -- became popular in the 1990s, along with two other languages beginning with "P": Perl and PHP. Later, they formed a crucial part of the famous "LAMP" stack -- the GNU/Linux operating system + Apache Web server + MySQL database + Python/Perl/PHP as scripting languages -- that underpinned many of the most successful startups from this time. 

On Techdirt.

Python in Peril - Please Help

Trademarks are a problem for free software, because there is a tension between a desire to encourage sharing of the software, and a need to ensure that people are not misled over what exactly that software is. For example, you don't want people distributing modified copies of your code claiming that it is your code, or that it is approved by you - in the worst cases, it might contain malware, for example.

On Open Enterprise blog.

Danish Court Orders Spanish Site Blocked Because It Uses Trademarked English Word 'Home' As Part Of Its Name

Daft trademarking stories are common enough, but it's always fun to come across new variations on the theme. Netzpolitik points us to this story from Denmark, where a Spanish-owned property site called HomelifeSpain.com ran into trouble because the word "home" was trademarked in Denmark by the Danish property site home.dk. This resulted in the rather incredible remedy of the website itself being banned entirely. As Netzpolitik notes, this is classic function creep: such web blocks were introduced to fight -- you guessed it -- child pornography, and yet here they are being applied in the rather less serious matter of trademark infringement. 

On Techdirt.

Mr. Cable: Disconnected from Digital Reality

Rather out of the blue, Business Secretary Vince Cable has made a series of proposals affecting patents, copyright and trade marks:

On Open Enterprise blog.

Scientist Refused Permission To Call Hominids 'Hobbits', Even Though Word First Used In Print In 1895 -- And Not By Tolkien

Techdirt has written before about the aggressive enforcement habits of the Tolkien estate, once in connection with the name "Tolkien", and once regarding the word "Hobbit". Looks like they're at it again, down in New Zealand: 

On Techdirt.

What Happens If File Sharing Can Also Be Prosecuted As Trademark Infringement?

In the arguments over ACTA, one criticism seemed widely accepted: that it tries to bundle together two quite different challenges -- tackling counterfeit goods, like fake medicines, and dealing with unauthorized file sharing. One popular suggestion was that ACTA should be split in two in order to handle those separately – for example, David Martin, the politician who played a key role in convincing the European Parliament to reject ACTA this week, supports this approach. 

On Techdirt.

Trademark Lobby Wants To Help European Court of Justice Forget About EU Citizens' Rights

It was only yesterday that the European Commissioner Karel de Gucht made the surprise announcement that the European Commission would be referring ACTA to the European Court of Justice (ECJ) "to assess whether ACTA is incompatible -- in any way -- with the EU's fundamental rights and freedoms." Just a few hours after that, there are already signs of panic among ACTA's supporters that the treaty may indeed be incompatible -- and thus dead in the water as far as the European Union is concerned. 

On Techdirt.

Yet More Collateral Damage From SOPA/PIPA: Activism Through Satire

Among the many high-profile organizations that are joining the SOPA blackout today is Greenpeace. That's great, except that you can't read an important post on the Greenpeace UK web site about why it is opposing SOPA and PIPA (it should be available at 5 pm PST from the home page or here.

On Techdirt.

A Rational Way To Dispose Of Counterfeit Designer Clothes: Donate Them To The Homeless

The narrative around counterfeit goods usually ends with their seizure. We rarely get to hear or see what happens to them afterwards unless some token burning or breaking is laid on for the cameras' benefit. That makes the following story doubly noteworthy: we not only find out where fake designer clothes go after they have been seized in the UK, we discover that they are put to an excellent use: 

On Techdirt.

London 2012 Olympics Go For Gold in the Extreme 'Ambush Marketing' Law Event: 'Guilty Until Proven Innocent' – And No Streaking Allowed

The Olympic Games are not just about sporting success, but also legal excess – in particular, taking laws to extremes in order to "protect" sponsors, who are routinely elevated to the level of Greek gods during the games, with similarly superhuman rights over lesser beings like you and me.

Techdirt has already written about the UK police getting special powers to enter homes during the 2012 games, as well as free speech being curtailed. Now there are plans to suspend the presumption of innocence too: 

On Techdirt.

Foreworld as Foretaste

I'm am currently staggering to the end of Neal Stephenson's The Confusion, loving every minute of this impossible, wandering, hyperbolic, anachronistic, shaggy-dog story. So I was naturally delighted to see that he (along with a band of fellow creators) is not only working on yet another huge, outrageously-ambitious epic, The Mongoliad, but one that pushes story-telling in new directions by using technology:

Our story unfolds in weekly installments over the course of a year. We've planned out a true epic—the last great epic of the middle ages, in fact--and written a fine chunk of the tale, but much depends on you. We’re hoping you’ll ultimately interact with our artists and writers and share in the story’s creation.

When we can, we'll include extra tidbits of art, video, music and history. Those extras will be made available to premium subscribers, an excellent value--less than the price of a hardback book for a year's worth of story and mixed-media entertainment. We’ll soon be taking subscriptions for app delivery to some of the most popular mobile devices and are working hard to add more.

The user-editable Foreworld 'Pedia is the ultimate repository of all information about our world. Some of it coincides with the world you know. Some does not. We welcome your additions.

I was particularly heartened to find the following intelligent approach to DRM - or lack of it:

We put in a lot of effort on an ongoing basis to ensure that the best value our fans can get out of our stuff is by participating interactively with us and each other, and enjoying our interwoven content in context, in the way it was meant to be enjoyed. So, we think that if people take our content without our permission, their experience will be suboptimal, and given our modest prices, we think most people will be happy to pay us, thereby enabling this experiment to keep evolving. That said, the bits that can be copied and pasted and put into a torrent are still going to be fun, and people are going to end up redistributing those bits without our permission and against our wishes. However, we still don't use DRM.

The reasoning is absolutely spot-on:

The biggest reason is that DRM is futile, and we don't like to waste our time doing things that aren't going to be effective, and which are just going to annoy our legit supporters. Our concentration is on providing great experiences and great customer service to our customers, and we trust that those people who really appreciate what we are doing will become our customers. Because it's part of our ethos to be constantly producing and expanding and improving our work, the pirated content people may find elsewhere online will be static and out-of-date copies; we think that when people find this stuff it may give them a taste of what the full experience is like; hopefully, that taste will be enough that they'll want more, and in seeking out more, will become happy (and paying) customers of ours. We like that.

That is, piracy isn't a real problem if you *out-innovate* the pirates, making your paid-for offering better than their free one. Indeed, if you do, pirated copies become like tasters, encouraging people to upgrade and pay for the full, latest version. Similarly, by the sound of it, part of the strength of this project will be the interweaving of other elements into the text - again, something that pirates can't offer.

But I think this is slightly off the mark:

However, we don't believe that pirates are doing us any favors, and our not using DRM is not an invitation to cadge our stuff. Because of the way intellectual property law in this country (and most other jurisdictions) works, we are obligated to defend our copyrights, trademarks, and other IP--otherwise we lose them: if we find piracy we will try to stop it; if we find unauthorized use of our IP at commercial scale and/or commercial intent, we will come after it with vigor, because we have to.

That may be true for trademarks, but not, I think, for copyright: it's not something you have to "defend". Still, quibbles, aside, I'm looking forward to seeing what Stephenson and his fellow creators get up to here. I also hope that this new Foreworld proves something of a foretaste of future extended novels - not least in terms of dropping DRM.

As for reading it, well, I have the small matter of The Baroque Cycle to finish first: I may be gone some time...

Follow me @glynmoody on Twitter or identi.ca.

Time to Abolish the Olympics?

This is incredible:

An American author and broadcaster claims Canadian border officials questioned her about whether she would discuss the 2010 Vancouver Olympic Games at a speaking engagement Wednesday evening in Vancouver.

...

They began to search her notes and computers and those of her two colleagues, Ms. Goodman alleged. They then photographed the journalist and gave her a stipulation to leave the country by Friday night. They were delayed over an hour.

Now, there are two explanations for this. One, is that free speech no longer exists in Canada, which is news to me. I can't imagine even the most zealous border official was really trying *in principle* to restrict Ms Goodman's general right to talk about anything.

The other possibility, seems much more likely: that this was another epiphenomenon of the Olympic trademark insanity, whereby ordinary words are suddenly forbidden to lesser mortals - unless they pay.

In other words, it is precisely the privatisation of language that is used as an analogy for the patenting of algorithms - something so manifestly absurd, that no one would ever do it. Except that in the case of anything touching the Holy Olympics, we are already there.

If it's got to the point where border officials are checking people for "prohibited Olympic words" that they may be about to use without permission, perhaps it's time to call a halt to this corporatisation of language by abolishing the Olympics in their present, hypertrophied form. How about going back to basics: a competition in Olympia, for amateurs, with none of the commercial superstructure that has accrued: just pure sport?

Too much to ask? Yes, probably, until the widespread assumption that intellectual monopolies like copyright, patents and trademarks are in some sense *good* for us, despite all evidence to the contrary, is preceived to be the con-trick it really is.

Follow me @glynmoody on Twitter or identi.ca.

SAP True to its Name

What is going through the mind of SAP? These people are *promoting* your products:

Business Objects claims that no one can use a Crystal Reports screenshot in a book without their approval. They sent letters to courseware vendors (including me) telling use that we need to get permission to use screenshots in our books. Most vendors ignored those letters and nothing more was said in the three years since. Now it appears that more letters are going out from SAP (who now owns Business Objects). I read one of the letters this past week and it talks about screenshots and adds a new warning about using SAP trademarks like the term “Crystal Reports”. The letter was very impressive, with majestic references to various sections of US copyright and trademark law. Sprinkled throughout the letter was the Latin incantation “inter alia” to make it seem almost pontifical. It sounded so ominous that it brought to mind the blustering Wizard of Oz (”ignore the little man behind the curtain”).

As I explained in 2005, using screenshots of a software product in a book is a “fair use” of a copyrighted work (see Sony vs Bleem). And there are also several clear cases to show that “nominal” use of a trademark word or phrase is fine for any purpose at all, so long as you are not claiming to be affiliated with or authorized by the trademark holder (see Volkswagen vs Church).

(Via Techdirt.)

IOC Stays True to Olympic Spirit...

...the Beijing Olympics spirit, that is:

the IOC sent a take-down notice to YouTube for a video posted by Students for a Free Tibet.

The video, which showed a pro-Tibet candle-light vigil in New York City and images from the March protests in Tibet, was dutifully pulled by YouTube. However, it was unclear what infringement the IOC was claiming. Although their famous interlocking rings were briefly shown, that would seem to be a trademark, not covered by the DMCA. Even if they claimed the rings were copyrighted creative content, their creation in 1913 places them firmly in the public domain (on copyright, the trademark remains -- but the DMCA isn't for trademark). Luckily after a number of sites questioned the action, the IOC withdrew their complaint.

Back-Door Maximalist Intellectual Monopolies

This looks like a very serious attempt to bring in maximalist intellectual monopolies through an agreement called SECURE under the aegis of the World Customs Organisation (sic) :

Susan Sell, director of the Institute for Global and International Studies at the Elliott School of International Affairs in Washington, DC, said in a recent paper (available here [pdf]) that the SECURE aims were “TRIPS-plus-plus,” referring to extending beyond the scope of the 1994 World Trade Organization Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS). “These new anti-counterfeiting and enforcement initiatives are just the latest mechanisms to achieve the maximalists’ abiding goal of ratcheting up IP protection and enforcement worldwide,” she said.

Viviana Muñoz Tellez of the intergovernmental South Centre said in the South Centre Bulletin (16 April 2008 issue [pdf]) that the SECURE working group seems to be “setting new standards of intellectual property enforcement through the back door,” and that this “may extend beyond the WCO mandate.” Separately, she told Intellectual Property Watch that standards presented as voluntary could become mandatory down the line. “Soft law,” she said in the article, “is often the basis on which ‘hard law’ is later established.”

And if that's not bad enough, there's a couple more details:

Other concerns of Sell’s are that the standards would extend monitoring to all IP, as opposed to just trademark and copyright, and would free IP rights holders from the burden of providing evidence that there is infringement “initiate a procedure.”

Patents would be turned into a customs issue (whaaat?), and there would be no need actually to show that an infringement happened in order to start a "procedure".... In other words, this SECURE (and for the name, see here) is about extending the RIAA's intimidatory tactics to the whole of intellectual monopolies, and globally.

But wait, there's more:

There also was substantive concern that rights holders, such as industry trade associations, were participating in WCO meetings at the same level as member states, to the extent of having their own vice-chair. Muñoz’s article characterised their involvement as “on equal footing” with members, and said they can “equally suggest draft language.”

...


“We’ve been very open with the public,” he added, about the allowance of private sector stakeholders in the meetings. What is unique about the way that WCO meetings are run is that observers may speak and express opinions once members have spoken. This is in contrast to the WTO and WIPO, where observers generally only offer comment if asked to, or with express permission of a meeting chair.

So, the industries mostly closely involved with intellectual monopolies are helping shape the agreement alongside the government organisations. Well, that's sure to produce a balance, isn't it?

Poor Little Rich Intellectual Monopolies

Here's a droll piece about poor, little unloved intellectual monopolies:

At the highest level, there are those who no longer believe that all property is theft but appear to make an exception for IP. Since every newly created work builds upon the words, the thoughts, the ideas, and the knowledge created by countless others in their furtherance of humanity, any attempt to ring-fence an item of IP, and exclude others from it is an attempt to misappropriate part of the common intellectual heritage of mankind. Since knowledge and information can be shared with others without depriving oneself of them, there is no loss to oneself if such an act of sharing takes place.

At a lower level, there are those who accept the existence of IP rights, but reserve their criticisms and their hostility for specific manifestations of it: the enforcement of copyright against large-scale private copyists, the use of trade mark rights to carve up markets so that genuine goods cannot be imported from a country where they are sold cheaply for resale in another country where they fetch a better price; the theft of traditional knowledge and culture which is then repackaged as copyright- or patent-protected property; the patrolling of industry by unproductive patent trolls, intent upon securing a rent where they create no value; death by patent monopoly for millions in the developing world who, in the unlikely event that they can even access vital medicines, cannot afford them.

Sounds like a fair summary. It concludes:

attitudes toward IP rights focus principally upon their negative qualities and do not connect them with that which is positive. Thus, new medicines save lives, while patents kill; music is cool, while copyright is a clamp; brands are brilliant, while trade marks are tools of trade manipulation. It is too much to hope that the public at large will wake up one morning, enlightened at the beneficial, positive, and above all necessary role played by IP rights, but we can at least aspire to teach that, between that which they praise and that which they condemn, there is a powerful causative connection.

To which I would reply: Why bother? Given the problems with intellectual monopolies nicely summarised above, isn't it time to admit that in fact there are no benefits, that it is all a hideous con, a house of cards that needs to blown down once and for ever? (Via IPKat.)

Venezuela Gets It on Eye-Pea

Who doesn't want intellectual prosperity?

The term “intellectual property” is a new-speak propaganda word. First, the topic it covers varies from copyright, patents, trade secrets and trademarks to a variety of other things, all of which are very different and unrelated. Second, it is based on the premise that you can give someone something intangible and yet control it as if it or they were your physical property, even the ideas they may have in their mind.

The consequences of treating ideas as if they are tangible property are the very destruction of science and education, and the elimination of individual rights and freedoms.

The consequences of treating ideas as if they are tangible property are the very destruction of science and education, and the elimination of individual rights and freedoms. Science is in part built upon the idea that new knowledge is created by incrementally improving ideas.

Education is based on the idea that one can learn from existing things and then use that knowledge to create new works. The idea behind “intellectual property” is barbarism, and could well lead to a new dark ages, where only a privileged few are allowed to learn, under the exclusive control of greedy intellectual monopolies.

SAPI, the Independent Service ministry of Propiedad Intellectual, was the ministry that used to define Venezuela’s so called “Intellectual Property” laws. The current Director General of SAPI has very different ideas for the purpose of SAPI. Rather than creating new intellectual restrictions, the Director General proposes that the mission of SAPI should instead become that of promoting “intellectual prosperity” by creating laws and services that promote the ability to share knowledge as the common heritage of all mankind, rather than hoard it to make a few people wealthier.

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.

What Can You Protect in Open Source?

Marc Fleury is a Frenchman who famously made lots of dosh when he sold his open source company JBoss to Red Hat. That puts him in a strong permission to pontificate about what does and what doesn't work in the world of businesses based around free software. Try this wit and wisdom, for example:

B.D asks: "marcf, my open source project is starting to enjoy a measure of success, I am thinking of going professional with it, I am thinking about business models. How much thought should I put in protecting my Intellectual Property?"

Answer: B.D. protecting IP in OSS is extremelly important. The only "private" property that exists in OSS are 1- brand 2- URL. Both are obviously related but really you need to protect your brand name, in other words REGISTER your trademarks, use them, declare they are yours and enforce the trademark, meaning protect against infringement. Other products, specifically based on your product should not include your name. Consultancies will be able to say they know and work with your "product name" but they cannot ship products using your trademark. Educate yourselves on brand IP, that is a big asset in OSS.

The URL deserves the same treatment. A successful website with traffic is a source of revenue in this day and age, either directly through ad placement or indirectly by lead generation.

It's interesting that Fleury concentrates on trademarks, rather than copyright or patents (of the latter he says: "you will have little protection against thieves that want to copy what you have done without letting you know and put it under different licenses, I have seen it done, such is the nature of the beast.") I think this indicates that trademarks can be useful, even with open source, just as copyright is necessary for licences to work. It's patents that remain the problem.