How Rigorous Will the RAND Report Be?

Reports on piracy are like buses: you wait for ever, and then three come at once. In a way, that's not surprising. To begin with, the content industries thought they didn't need to bother with facts, and could simply define the debate with their ex cathedra pronouncements. And that worked for a while, because naive politicians seemed to believe them.

But then a few ill-mannered types pointed out that the Emperor had no clothes, and so, to back up their claims, the copyright maximalists commissioned a few reports that did, amazingly, back up their claims. And then the troublemakers (oh, that would be people like me) actually took the, er, trouble to read the reports in detail, and to check the methodology, only to find that both were pretty worthless: based on extremely naive assumptions, or simply ignoring important parts of the picture.

Worse, research started emerging that piracy really wasn't that much of a problem (lots of links in this submission to the IPRED consultation - BTW, I do hope you've submitted yours, since today's the last day...)

The obvious response to this turn of events is to commission yet more research that's a little bit more rigorous, but that still comes up with "right" answer on piracy. The danger is that this is precisely what the "The European Observatory on Counterfeiting and Piracy" is up to here:

Much of the EU’s output is not the work of officials but rather of thousands of firms contracted per project. Tender reference MARKT/2010/03/D requested proposals for:

A study to assess the scope, scale and impact of counterfeiting and piracy in the internal market, through a defined methodology for collecting, analysing and comparing data.

This study will be the flagship publication of the European Piracy and Counterfeiting Observatory. The tender process concluded in December and the winner was announced in January: the RAND Corporation (UK), and they will be paid half a million euros for their labours.

That same blog post has a good explanation of why we have reasons to be worried:

Their selection warrants unease because although they would not be regarded as IP specialists, they do have form: in 2009, their US organization produced a lengthy report ‘Film Piracy, Organized Crime, and Terrorism’. This study was financed by the Motion Picture Association, and much of the documentation compiled was assembled by a consultant on ‘organized crime’ employed by the MPA. RAND did at least disclose the relationship with a vested interest.

...

A reading of the document leaves one in no doubt that it’s primary objective is to convince the public that ‘piracy and counterfeiting is not a victimless crime.’ As a result the frame through which the subject is analysed is one where these activities are basically just the work of gangs, which need to be deterred, requiring more enforcement resources and tougher sentences -. it’s sort of the square-jawed GI Joe school of IP policy, in a comic book universe of make-believe economics.

So, how can we little people - the ones that are actually paying for all this work, but that are never allowed to provide any input - head off this danger of a biased, misleading report emerging from RAND Corporation?

I think the only way is to starting making noises about the fact that it *might* be biased and misleading, so that those preparing it at RAND Corporation know that we are watching them like proverbial hawks, and that we will assuredly tear their methodology to pieces when it comes out, and will thus be certain to find - and brandish - the slightest lack of rigour or bias therein.

Got that, RAND Corporation people? Excellent.

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UK Government Promises to Go Open - Yet Again

Sometimes it seems like I've written the same story about UK government IT plans again and again. You know the one: after years of empty promises, the UK government assures us that this time is will really open up, embracing open source and openness in all its forms.

On Open Enterprise blog.

Kafka Alive and Well, Living in Switzerland

You may have come across this sad tale:

According to the Swiss Open Systems User Group, /ch/openSwitzerland, the Swiss Federal Supreme Court Switzerland has rejected a complaint by several open source vendors against the awarding of contracts to Microsoft without prior invitation to tender. Last summer, the Swiss Federal Administrative Court had ruled in a first instance decision that only the vendors of Microsoft software could object against the awarded contracts because only they offer the Microsoft products chosen by the Swiss Federal Government.

See the Catch-22 logic here? Only vendors of Microsoft software could object to the fact that only vendors of Microsoft could be awarded the contract...

The complainants had appealed against this decision on the grounds that the ruling didn't take into consideration the existence of products which compete with those offered by Microsoft.

And the court's reason for rejecting the appeal?

the court ruled that the complainants didn't provide conclusive evidence of the actual existence of such competing products. An objection by the complainants that such evidence is impossible to produce because no functional specifications have been established by the Swiss Federal Administration was overruled.

Got that? The complainants couldn't complain because they didn't prove they were able to supply the products desired. But the reason they couldn't do this was because no list of functional requirements had been specified - which was precisely the problem they were complaining about: that the contract was framed in such a way as to exclude open source alternatives.

It's a bit like being found guilty for wanting to know what crime you were accused of....

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Piracy is not Counterfeiting: Updating IPRED

As promised, I append below a near-final draft of my response to the European Commission's consultation on IPRED. Once again, I urge you to submit something if you possible can - this is deeply wrong-headed stuff that needs fixing if openness and freedom are to thrive online.

On Open Enterprise blog.

Pig-headedness, not Piracy, Killed Recorded Music

An extremely feeble article in the Guardian parrots the recording industry's line that piracy is killing music:

Global recorded music sales fell by almost $1.5bn (£930m) last year as digital piracy continued to take its toll on the industry, with the UK losing its mantle as the third-largest music market after "physical" sales of CDs collapsed by almost a fifth.

Sorry, I think I missed the proof that this fall was *caused* by piracy: any evidence? No, I thought not. Whereas there is growing research that unauthorised sharing actually increases sales (see the list of examples and links in this post.)

Perhaps the problem is rather that the sales being driven by this unauthorised sharing just aren't being generated fast enough to compensate for the overall decline in the recorded music industry. After all, there's nothing that says it must always grow. Maybe people are just fed up with its antics now that there are plenty of other kinds of music available (under cc licences, for example.)

In fact, there's a rather telling graph that the IFPI has kindly provided. It shows, of course, the decline in total sales of recorded music, breaking it down by "physical", "digital" and "recorded rights". The last of these is pretty much constant, while digital is growing at a modest pace.

But as is so often the case, this graph tells us something quite different from those "obvious" figures - and something rather interesting: that digital sales didn't really exist before 2004.

Thank about it: it took five years after Napster was created before the recording industry finally began to acknowledge the existence of a revolution whose inevitability was obvious to anyone who had spent a few hours online. Is it any wonder that people got fed up with the exorbitant pricing and inconvenient packaging of CDs, and despaired of ever being treated fairly with reasonably-price downloads?

In effect, it was the industry's pig-headed refusal for half a decade to sell people what they wanted that has driven users away. If some - even many - of them turned to unauthorised downloads, is it really any wonder? So before we blame the pirates, how about a word or two for the owners of those heads?

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Why Microsoft Costs the World $500 Billion a Year

Here's another of those entertaining IDC reports commissioned by Microsoft:

Today, global research firm IDC issued a new white paper which estimates that members of the worldwide Microsoft ecosystem generated local revenues for themselves of $580 billion in 2010, up from $537 billion in 2009 and $475 billion in 2007.

On Open Enterprise blog.

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.

How Open is the Open Networking Foundation?

Time for some more of that fashionable “open” goodness:

Six companies that own and operate some of the largest networks in the world — Deutsche Telekom, Facebook, Google, Microsoft, Verizon, and Yahoo! — announced today the formation of the Open Networking Foundation (ONF), a nonprofit organization dedicated to promoting a new approach to networking called Software-Defined Networking (SDN). Joining these six founding companies in creating ONF are 17 member companies, including major equipment vendors, networking and virtualization software suppliers, and chip technology providers.

On Open Enterprise blog.

The End of Copyright's Social Contract

Copyright is based on a social contract. In return for a government-enforced, time-limited monopoly, artists create - the idea being that without that monopoly, it would not be worth their while to produce works because copies could be made that would undermine their value and hence the artists' livelihood.

Of course, this flies in the face of the fact that Shakespeare, Rembrandt, Bach and all the rest enjoyed no copyright in their works, and yet, demonstrably, produced rather a lot of rather good stuff.

Ah, yes, but, the content industry will retort: things are different now, etc. etc. The trouble is, we have no way of testing whether things really are different now - in other words, whether, in the absence of copyright, people would carry on creating.

Well, actually we do, because the almost universal sharing of music and other content is effectively creating a copyright-free world for digital artefacts. For recorded music, which is now overwhelmingly digital, that means what is more or less a copyright-free world. And so, following the logic of the industry, music creativity should be falling through the floor as musicians everywhere throw up their hands in despair, crying: "oh, where is my old quid pro quo?"

Given this interesting situation, it would of course be fascinating to know whether that is the case or not. That's a non-trivial piece of research for a number of reasons, but Joel Waldfogel at The Carlson School and Department of Economics, University of Minnesota has made a valiant effort to deal with the problems, and published his results [.pdf]:

In the decade since Napster, most observers have concluded that file-sharing undermines the protection that copyright affords recorded music. What matters for consumers, however, is not sellers’ revenue but whether the diminished appropriability will reduce the availability of new recorded works. The legal monopoly created by copyright is justified by its encouragement of the creation of new works, but there is little evidence on this relationship. The file-sharing era can be viewed as a large-scale experiment allowing us to check whether diminished appropriability stems the supply of new works. Using a novel dataset on the supply of new recorded music derived from retrospective critical assessments of music such best-of-the-decade lists, we compare post-Napster album supply to 1) its pre-Napster level, 2) pre-Napster trends, and 3) a possible control, new song supply following the iTunes Music Store’s revitalization of the single. We find no evidence that recent changes in appropriability have affected the quantity of new, acclaimed recorded music or new artists coming to market. We reconcile a stable flow of new works in the face of decreased demand with evidence on reduced costs of bringing works to market and a growing role of independent labels.

Looks like the social contract can now be torn up: even without that copyright monopoly - and remember, monopolies are bad things - artists are still creating.

Now, one study is hardly definitive proof, but it's suggestive to say the least. In particular, taken together with all the other evidence that sharing really doesn't hurt the music industry overall, it provides another shiny nail for the copryight maximalists' coffin. (Via Michael Geist.)

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Sharing the Credit for Sharing

Time magazine has one of those tiresome list thingies: "10 Ideas That Will Change the World" (pretentious, moi?). To its credit, it does correctly identify one of the key ideas that is already re-shaping our world:

it's the young who are leading the way toward a different form of consumption, a collaborative consumption: renting, lending and even sharing goods instead of buying them. You can see it in the rise of big businesses like Netflix, whose more than 20 million subscribers pay a fee to essentially share DVDs, or Zipcar, which gives more than 500,000 members the chance to share cars part-time.

So, where do they think this all started?

Even as Bush was announcing its birth though, the ownership society was rotting from the inside out. Its demise began with Napster. The digitalization of music and the ability to share it made owning CDs superfluous. Then Napsterization spread to nearly all other media, and by 2008 the financial architecture that had been built to support all that ownership — the subprime mortgages and the credit-default swaps — had collapsed on top of us.

Well, Napster was an important moment when the idea of sharing spread to content, but it was definitely following in the footsteps of the Internet and free software, particularly the latter. When Napster arrived, RMS had been articulating the moral imperative to share for a decade and a half, and his followers had been doing it for nearly as long.

So although it's good to see the idea of sharing singled out in this way, it's sad to see poor old Richard Stallman and the free software crowd once more written out of history.

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Finally Calling Time on Piracy FUD

One of the striking features of reports purporting to estimate the “damage” caused by piracy - both of software and content - is that without exception, as far as I can tell, their numbers and methodology simply do not withstand close scrutiny.

The trouble is, when it's a question of lone voices like mine or even that of Techdirt's Mike Masnick, probably the most dogged debunker of piracy FUD, the content industries can ignore such posts, presumably in the belief that our quick analyses somehow don't count.

But that's not possible when the same points comes from a respected organisation like the Social Science research Council, “an independent, nonprofit international organization founded in 1923”, especially when they appear in a meticulously-researched 400-page report:

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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Open Source's Kith and Kindred

One of the things that interests me is the way that the ideas underlying open source are being applied in other fields. That's something that I normally cover in my other blog, but sometimes things happen in those other domains that have ramifications back in the world of open source, and so may be of interest here.

On Open Enterprise blog.

Nokia: What's Missing from this Picture?

One of the reasons why I find the whole Nokia saga so fascinating is that the reasoning behind what is clearly a move of huge importance for many groups is not being communicated at all convincingly.

On Open Enterprise blog.

How Can Open Source Survive in a Post-PC World?

We are entering a post-PC world – or so we are told. But is that good or bad for open source?

The open source world has been fixated so long on the “Year of the GNU/Linux Desktop” that it runs the risk of failing to notice that the desktop is no longer the key platform. That's been evident for some time in the developing world, where cost and power constraints mean that big, expensive PCs are simply impractical for most people. But with the rise of smartphones like the iPhone and Android devices, many people in western countries are also ditching their desk-bound systems in favour of powerful, more pocketable ones.

On The H Open.

Berlin Declaration: More Than They Think

So the publishing dinosaurs have got together and produced an egg: The Berlin Declaration on the Future of the Digital Press.

Unfortunately, as you probably guessed, this is backward- rather than forward-looking. Try this, for example:

It is recognition of copyright which fundamentally underpins investment in editorial content. It enables publishers to make quality works available, whilst providing a framework to secure remuneration for their investment and the sustainable delivery of creative content. Providing new exceptions in this field would therefore represent a direct threat to publishers’ economic sustainability and their ability to respond adequately to digital challenges. Digitization has not reduced but increased the need for the protection of copyright.

Do you detect a sense of desperation here? The idea that there might be the teensiest rolling back of the copyright ratchet through "new exceptions"? Because, of course, the current copyright framework is working so well online, as is the increasingly deranged enforcement legislation designed to "support" it, that we shouldn't dare tinker with it. The idea that it is precisely because copyright is dysfunctional online that publishers are finding themselves in trouble obviously never entered their minds.

The next bit is fun, too:

The different possibilities to utilize content on the internet and via tablets make it very easy for third parties, like aggregators, search engines and pirate sites, to use publishing houses’ creative content for free, without authorization and remuneration of the publisher. It is thereby one of the most important tasks of copyright to draw the line between the widely permitted reference to content of third parties and the unauthorized re-use of such content, which is prohibited.

It's interesting to see the flip-side of publishers' ridiculous obsession with tablets. Alongside the hope that they will be the salvation of the industry (newsflash: they won't) there is also a fear that somehow they will make things worse (well, no, not really.) Again, this is indicative of the fact that the publishers don't really have a clue when it comes to the digital world, and over-emphasise surface details like the tablet while overlooking key trends like the arrival of digital abundance.

To be fair, there is one point in their declaration that is absolutely right:

The future of the European press strongly depends on the ability of publishers to monetize their digital editions. Therefore the EU should allow Member States to extend their reduced - including the possibility of zero % - VAT rates to the digital press.

One of the things that I learned when I went along to a roundtable discussion of the UK Independent Review of "IP" and Growth was that ebooks are subject to VAT, whereas physical books aren't. That's partly - but only partly - why ebooks are more expensive than you would expect.

I think the publishing industry is spot on here: VAT rates should match those for physical books, and ideally be set at zero. As for the other points of the declaration, they certainly do declare the publishers' positions, but probably not in the way that was intended.

Follow me @glynmoody on Twitter or identi.ca.

Copyright Bullying is in the DNA

Craig Venter is a bit tiresome at times, but indubitably clever. And to prove his cleverness (again) when he was creating artificial life, he thought he'd throw into the DNA a quotation or two:

In order to distinguish their synthetic DNA from that naturally present in the bacterium, Venter’s team coded several famous quotes into their DNA, including one from James Joyce’s A Portrait of the Artist of a Young Man: “To live, to err, to fall, to triumph, to recreate life out of life.”

Rather witty, no? Sadly, the humourless Joyce Estate didn't see it that way:

After announcing their work, Venter explained, his team received a cease and desist letter from Joyce’s estate, saying that he’d used the Irish writer’s work without permission. ”We thought it fell under fair use,” said Venter.

Yeah, we really need Draconian copyright laws to protect (dead) artists from this kind of evil infringement.

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Why We Should Care about the Trans-Pacific Partnership (TPP)

When I first started writing about the Anti-Counterfeiting Trade Agreement (ACTA) in 2007, practically no one had heard of it. That wasn't an accident, but a consequence of the attempt to keep the ACTA negotiations hidden behind tightly-closed doors.

On Open Enterprise blog.

Time to Break Out the Digital Quills Again...

A couple of weeks ago I posted in full the near-final version of my submission to the UK Independent Review of "IP" and Growth (sorry, the deadline's passed if you felt a sudden urge to follow suit...). Arguably, it was the most important review that we've had for a long time in this area, but that doesn't mean there aren't others worthy of your attention.

On Open Enterprise blog.

Mozilla Moves On

Back in August last year, I wrote the following:

we no longer live in a simple binary world of Internet Explorer as the dominant player and Firefox as the doughty but distant challenger. We are entering a new situation with three powerful players all striving to impress users with their respective strengths and capabilities, each sometimes gaining, sometimes losing a little market share.

In this sense, Mozilla has won, because this kind of healthy competition was precisely what it was trying to achieve when it launched its open source browser project over a decade ago. It has also won in the sense that Internet Explorer is now much more compliant with open Web standards, and seems unlikely to try to lock down the Internet again with its own proprietary add-ons as it did successfully during the dotcom boom. As a result, it's probably fair to say that with its relatively static market share, what we are seeing is not so much the beginning of the end for Firefox, just the end of the beginning where it was the plucky underdog able to ride an easy wave of browser rebellion.

But if this is the end of the beginning, what comes next?

On Open Enterprise blog.

Nokia's Not-so-cute Qt Move

When I was reviewing the fall-out from Nokia's decision to stake its future on Microsoft's Windows Phone 7 system, I mentioned parenthetically that I thought it likely the Qt division would be sold. It turns out I was right, although Nokia has chosen to do this in an unusual way:

On Open Enterprise blog.

Moving beyond the Microsoft Monoculture

For the last 15 years we have been living in a Microsoft monoculture, which has had very real knock-on consequences for everyone online – not just for users of its products. Today, though, that monoculture is fading away, to be replaced by something much more complex.

On The H Open.

More Fun with Anti-Open Source FUD

One of the oddest aspects of open source is that unlike any comparable computing field that I am aware of, it has been stalked for years by a strange, insubstantial beast going by the name of FUD. Back in 2006, I wrote a short history of the topic, but in the five years since then we've seen plenty more.

On Open Enterprise blog.

Malware at the Heart of the BBC's Decline

Anyone who has been following me on Twitter or identi.ca will have noticed that I have a bee in my bonnet - actually, make that a Beeb in my bonnet - about the BBC.

In fact, I have several - including the fact that I really want it to be the best broadcasting organisation in the world, as it once was. But my other bee/Beeb is that its journalistic standards in the few areas where I can claim some knowledge are pretty woeful.

This is seen nowhere more clearly than in its coverage of malware.

To read the reports on the BBC website (I don't watch UK television, so I've no idea what happens there, but suspect it's just as bad), you'd think that malware were some universal affliction, an unavoidable ill like death and taxes. Rarely does the BBC trouble its readers' pretty little heads with the tiresome fact that the overwhelming majority of viruses and trojans affect one operating system, and one operating system only: Microsoft Windows.

To see this, try the following experiment. Search on the BBC news site for "microsoft windows virus" or "microsoft windows trojan" or "microsoft windows malware", and you'll get a few dozen hits, not all of which refer to Microsoft malware.

But try the same searches without the words "microsoft windows", and you will get many more hits every year (try "computer malware", for example), very few of which mention that such malware is almost exclusively for Microsoft's platform.

That sin of omission has now been matched by an equally telling sin of commission. For hot on the heels of the first serious Android viruses, we have a report on BBC news spelling out the terrible facts:

More than 50 applications available via the official Android Marketplace have been found to contain a virus.

Analysis suggests that the booby-trapped apps may have been downloaded up to 200,000 times.

The malicious apps were copies of existing applications, such as games, that had been repackaged to include the virus code.

Fifty applications, can you believe it? Terrifying stuff. And downloaded no less than 200,000 times...shocking.

Of course, the fact that back in 2007

Symantec detected more than 711,912 novel threats which brings the total number of malicious [Microsoft Windows] programs that the security firm's anti-virus programs detect to 1,122,311.

as reported by the BBC in one of its rare balanced pieces on the subject, rather puts those 50 Android programs in context. Similarly, if you consider how many *billions* of times all those Windows viruses have been downloaded over the years, the 200,000 Android downloads pale into insignificance. And yet the BBC chooses not to provide any of that background information.

And it hasn't finished there. Not content with reporting on the Android virus without providing any context, the BBC article then goes on to trash - guess what? - yes, Android's open approach, via this quotation:

"This greater openness of the developer environment has been argued to foster an atmosphere of creativity," he wrote, "but as Facebook have already discovered it is also a very attractive criminal playground."

Again, the missing context is that the *closed* world of Windows has not only provided a rather larger and more attractive "criminal playground", but has caused tens of billions of dollars of economic damage every year according to one estimate. Rather more than just a playground for criminals, one might say - an entire global industry.

All-in-all, this is extraordinarily poor journalism from the BBC, and something that would never have been tolerated when it was at the height of its reputation. What's really sad is that the latest one-sided reporting of the Android viruses suggests that far from getting better, things are getting even worse in this particular area. That is truly a great loss for not just the BBC but for all of its long-time supporters (like me) who would like to see it flourish in the digital age, not shrivel into irrelevance.

Follow me @glynmoody on Twitter or identi.ca.