Last week I published a short correspondence I had with Richard Stallman on the subject of the GNU GPL and copyright. As I mentioned, that was from a couple of years ago, but I thought it might be worth posting now given the lively interest in the issues it raises.
On Open Enterprise.
I've never been one to follow the latest digital fashions immediately. I didn't start blogging until November 2005, and I only joined Twitter in January 2009, and identi.ca in May 2009. And so it is that I haven't joined Foursquare, or any of the other location-based social networks. That's partly because I like to wait, to see whether it's just a passing fad or something more enduring, and partly because I frankly haven't seen the point. Maybe it's about this:
On Open Enterprise blog.
Arguably the most important development in the world of open source in the last year or two has been the rise and rise of Google's Linux-based Android operating system. It's true that the mobiles out there employing it are not 100% free, but they are considerably more free than the main alternatives. More importantly, they are turning Linux into a global, mass-market platform in a way never before seen.
On Open Enterprise blog.
Here's a variety of "sharing" I'd not come across before: private label rights. This is what Wikipedia has to say on the subject:Private label rights is a concept similar to reselling, but the merchant is permitted to modify the product to fit his or her needs. Typical PLR products are articles, reports, eBooks, and autoresponders. This kind of content is used for the purpose of allowing multiple buyers to invest in the content with free rein to alter and use it by claiming authorship of it. It is typically used in online affiliate marketing systems.
As far as I can make out, this is a kind of a cross between spamblog content and pyramid selling.
One question that comes to mind is how much CC-licensed stuff ends up being passed around in this way? Of course, if the licence allows it, that's fine, but I wondered whether anyone had any experience of their content being "repackaged" in this way?
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Imagine a country that has one of the best Internet infrastructures in the world, and yet its government effectively forbids the use of GNU/Linux through a requirement that everyone employ a decade-old Windows-only technology for many key online transactions. That country is South Korea, where 1 Gbits/second Internet connections are planned for 2012; and that Windows-only technology is ActiveX.
On The H Open.
A couple of days ago, I was writing about how Richard Stallman's GNU GPL uses copyright as a way of ensuring that licensees share code that they distribute – because if they don't, they are breaching the GPL, and therefore lose their protection against claims of copyright infringement.
On Open Enterprise blog.
As long-suffering readers of this blog will know, one of the many reasons I am against software patents is that software consists of algorithms, and algorithms are just maths, so a software patent is a patent on knowledge - the purest knowledge there is (a mathematician writes).
Sometimes defenders of software patents deny that software is just algorithms (don't ask me how, but some do). So I was particularly interested to read about this poor hacker being contacted over - you guessed it - algorithms, pure and simple:Landmark Digital Services owns the patents that cover the algorithm used as the basis for your recently posted “Creating Shazam In Java”. While it is not Landmark’s intention to alienate those in the Open Source and Music Information Retrieval community, Landmark must request that you do not ship, deploy or post the code presented in your post. Landmark also requests that in the future you do not ship, deploy or post any portions or versions of this code in its current state or in any modified state.
As you can see, there is no way of disguising the fact that this claims to be a patent on an *algorithm* - that is, on maths, which is knowledge and therefore unpatentable.
But it gets worse. As the poor chap points out:I've written some code (100% my own) and implemented my own methods for matching music. There are some key differences with the algorithm Shazam uses.
That is, he didn't copy the code, and it's not even the same approach.
But wait, there's more.
As he notes:Why does Landmark Digital Services think they hold a patent for the concepts used in my code? Even if my code works pretty different from the Shazam code (from which the patents came).
What they describe in the patent is a system which:
1. Make a series of fingerprints of a media file and/or media sample
(such as audio, but could also be text, video, multimedia, etc)
2. Have a database/hashtable of fingerprints as lookup
3. Compare the set of hashtable hits using their moment in time it happened
This is very vague, basically the only innovative idea is matching the found fingerprints linearly in time. Because the first two steps describe how a hashtable works and creating a hash works. These concepts are not new nor innovative.
Moreover:I've also had contact with other people who have implemented this kind of algorithms. Most notible is Dan Ellis. His implementation can be found here: http://labrosa.ee.columbia.edu/~dpwe/resources/matlab/fingerprint/
He hasn't been contacted (yet), but he isn't planning on taking his MatLab implementation down anyway and has agreed for me to place the link here. This raises another interesting question, why are they targetting me, somebody who hasn't even published the code yet, and not the already published implementation of Dan?!
And if they think its illegal to explain the algorithm, why aren't they going after this guy? http://laplacian.wordpress.com/2009/01/10/how-shazam-works/
This is where I got the idea to implement the algorithm and it is mentioned in my own first post about the Java Shazam.
So, moving to that last site, we find a detailed analysis of the algorithm - which is all pretty obvious. How did he do that?
So I was curious how it worked, and luckily there is a paper [.pdf] written by one of the developers explaining just that. Of course they leave out some of the details, but the basic idea is exactly what you would expect: it relies on fingerprinting music based on the spectrogram.
In other words, the description of the algorithm by the company's programmers shows that it "is exactly what you would expect".
At every level, then, this is an obvious, algorithmic, mathematical approach. And yet someone in Holland - a country that doesn't recognise software patents at all - finds himself under pressure in this manner for some code he wrote independently implementing that general, algorithmic mathematical idea.
Now explain to me how patents promote innovation, please...
Update: Re-reading the post I realise that things are even more ridiculous. Here's what the company wants:we would like you to refrain from releasing the code at all and to remove the blogpost explaining the algorithm.
Now, you recall that the algorithm is the thing that the company claims to have a patent on. The original idea behind a patent was that in return for its grant, the inventor would *reveal* all the details of his or her invention so that others could use it once the patent had expired, as a quid pro quo. So if the company claims a patent on its invention, it must *by definition* reveal the algorithm.
Against that background, this demand to remove an explanation of the algorithm is simply absurd, and contradicts the very nature of a patent - it's like asking the USPTO not to reveal the patents it grants.
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Today is the last day for your MEPs to sign Written declaration ACTA 12/2010 (full background available from La Quadrature du Net.). To be precise, we have until 11am UK time to convince them to add their name to the list.
On Open Enterprise blog.
As readers of this blog will doubtless know, Richard Stallman's great stroke of genius at the founding of the GNU project was to use copyright when crafting the GNU GPL licence, but in such a way that it undermined the restrictive monopoly copyright usually imposes on users, and required people to share instead.
On Open Enterprise blog.
Bradley M. Kuhn has a thought-provoking post with the title "Proprietary Software Licensing Produces No New Value In Society". Here's a key section:I've often been paid for programming, but I've been paid directly for the hours I spent programming. I never even considered it reasonable to be paid again for programming I did in the past. How is that fair, just, or quite frankly, even necessary? If I get a job building a house, I can't get paid every day someone uses that house. Indeed, even if I built the house, I shouldn't get a royalty paid every time the house is resold to a new owner. Why should software work any differently? Indeed, there's even an argument that software, since it's so much more trivial to copy than a house, should be available gratis to everyone once it's written the first time.
He then goes on to point out:Thus, this line of reasoning gives me yet another reason to oppose proprietary software: proprietary licensing is simply a valueless transaction. It creates a burden on society and gives no benefit, other than a financial one to those granted the monopoly over that particular software program. Unfortunately, there nevertheless remain many who want that level of control, because one fact cannot be denied: the profits are larger.
For example, Mårten Mikos recently argued in favor of these sorts of large profits. He claims that to "benefit massively from Open Source" (i.e., to get really rich), business models like “Open Core” are necessary. Mårten's argument, and indeed most pro-Open-Core arguments, rely on this following fundamental assumption: for FLOSS to be legitimate, it must allow for the same level of profits as proprietary software. This assumption, in my view, is faulty. It's always true that you can make bigger profits by ignoring morality. Factories can easily make more money by completely ignoring environmental issues; strip mining is always very profitable, after all. However, as a society, we've decided that the environment is worth protecting, so we have rules that do limit profit maximization because a more important goal is served.
This analysis is cognate with my recent post about the absence of billion-dollar turnover open source companies: the fact is, as a pure-play free software outfit, you just can't make so much money as you can with proprietary software, because you generally have to sell scarce things like people's time, and that doesn't scale.
But the implications of this point are much wider, I think.
As Kuhn emphasies:
I'll just never be fully comfortable with the idea that workers should get money for work they already did. Work is only valuable if it produces something new that didn't exist in the world before the work started, or solves a problem that had yet to be solved. Proprietary licensing and financial bets on market derivatives have something troubling in common: they can make a profit for someone without requiring that someone to do any new work. Any time a business moves away from actually producing something new of value for a real human being, I'll always question whether the business remains legitimate.
This idea of getting money for work already done is precisely how copyright is regarded these days. It's not enough for a creator to be paid once for his or her work: they want to be paid every time it is performed or copies made of performances.
So ingrained is this idea that anyone suggesting the contrary - like that doughty young Eleanor - is regarded as some kind of alien from another planet, and is mocked by those whose livelihoods depend upon this kind of entitlement economics.
But just as open source has cut down the fat profits of proprietary software companies, so eventually will the exorbitant profits of the media industry be cut back to reasonable levels based on how much work people do - because, as Kuhn notes, there really is no justification for anything more.
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As I noted in my post “Why No Billion-Dollar Open Source Companies?", one of the reasons there are no large pure-play open source companies is that their business model is based on giving back to customers most of the costs the latter have traditionally paid to software houses.
On Open Enterprise blog.
Jim Whitehurst, president and CEO of Red Hat, the oldest and by far the most successful company whose business is based purely around open source, makes no bones about it: “Selling free software is hard,” he says. In fact, he goes further: “Open source is not a business model; it's a way to develop software.”
On CIO.co.uk.
I love Wikipedia. I love using it, frequently spending many a spare minute (that I don't actually have) simply wandering from one entry to another, learning things I never knew I never knew. I love it, too, as an amazing example of why sharing and openness work. For those who aren't programmers, and who therefore don't grok the evident rightness of the open source methodology, Wikipedia is a great way of explaining how it's done and why it's so good.
On Open Enterprise blog.
Since, as Larry Lessig famously pointed out, "code is law" (and vice versa), it's natural to try to apply open source methodologies in the legal world. Indeed, a site called Openlaw existed ten years ago:
Openlaw is an experiment in crafting legal argument in an open forum. With your assistance, we will develop arguments, draft pleadings, and edit briefs in public, online. Non-lawyers and lawyers alike are invited to join the process by adding thoughts to the "brainstorm" outlines, drafting and commenting on drafts in progress, and suggesting reference sources.
Building on the model of open source software, we are working from the hypothesis that an open development process best harnesses the distributed resources of the Internet community. By using the Internet, we hope to enable the public interest to speak as loudly as the interests of corporations. Openlaw is therefore a large project built through the coordinated effort of many small (and not so small) contributions.
Despite this long pedigree, open source law never really took off - until now. As this important post points out:
The case of British Chiropractic Association v Simon Singh was perhaps the first major English case to be litigated under the full glare of the internet. This did not just mean that people merely followed the case’s progress on blogs and messageboards: the role of the internet was more far-reaching than this
Crucially:The technical evidence of a claimant in a controversial case had simply been demolished - and seen to be demolished - but not by the conventional means of contrary expert evidence and expensive forensic cross-examination, but by specialist bloggers. And there is no reason why such specialist bloggers would not do the same in a similar case.
The key thing is that those bloggers need to be engaged by the case - this isn't going to happen for run-of-the-mill litigation. But that's OK: it means that when something important is at stake - as in the Singh case - and their help is most needed, they *will* be engaged, and that wonderful digital kraken will stir again.
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There's a new meme in town these days: “rights of the artists”. The copyright industries have worked out that cries for more copyright and more money don't go down too well when they come from fat-cat monopolists sitting in their plush offices, and so have now redefined their fight in terms of struggling artists (who rarely get to see much benefit from constantly extended copyright).
Here's a nice example courtesy of the Copyright Alliance – an organisation that very much pushes that line:Songwriter, Jason Robert Brown, recently posted on his blog a story about his experience dealing with copyright infringement. Knowing for a long time that many websites exist for the sole purpose of “trading” sheet music, Jason decided to log on himself and politely ask many of the users to stop “trading” his work. While many quickly wrote back apologizing and then removing his work, one girl in particular gave Jason a hard time.
First of all, I must commend Mr Brown for the way he has gone about addressing this issue. As he explains on his blog, this is the message he sent to those who were offering sheet music of his compositions on a site:Hey there! Can I get you to stop trading my stuff? It's totally not cool with me. Write me if you have any questions, I'm happy to talk to you about this. jason@jasonrobertbrown.com
Thanks,
J.
Now, that seems to me an eminently calm and polite request. Given that he obviously feels strongly about this matter, Mr Brown deserves kudos for that. As he explains:The broad majority of people I wrote to actually wrote back fairly quickly, apologized sincerely, and then marked their music "Not for trade."
However, he adds:there were some people who fought back. And I'm now going to reproduce, entirely unexpurgated, the exchange I had with one of them.
Her email comes in to my computer as "Brenna," though as you'll see, she hates being called Brenna; her name is Eleanor. I don't know anything about her other than that, and the fact that she had an account on this website and was using it to trade my music. And I know she is a teenager somewhere in the United States, but I figured that out from context, not from anything she wrote.
After some initial distrust, the conversation starts to get interesting, and it turns out that Eleonor, although just a teenager, has a pretty good grasp of how digital abundance can help artists make money:Let's say Person A has never heard of "The Great Jason Robert Brown." Let's name Person A "Bill." Let's say I find the sheet music to "Stars and the Moon" online and, since I was able to find that music, I was able to perform that song for a talent show. I slate saying "Hi, I'm Eleanor and I will be performing 'Stars and the Moon' from Songs for a New World by Jason Robert Brown." Bill, having never heard of this composer, doesn't know the song or the show. He listens and decides that he really likes the song. Bill goes home that night and downloads the entire Songs for a New World album off iTunes. He also tells his friend Sally about it and they decide to go and see the show together the next time it comes around. Now, if I hadn't been able to get the sheet music for free, I would have probably done a different song. But, since I was able to get it, how much more money was made? This isn't just a fluke thing. It happens. I've heard songs at talent shows or in theatre final exams and decided to see the show because of the one song. And who knows how they got the music? It may have been the same for them and if they hadn't been able to get it free, they would have done something else.
Which is, or course, absolutely spot on.
Mr Brown tries to explain why he disagrees using three stories. The first is about lending a screwdriver to a friend, who then refuses to give it back:He insists that he has the right to take my screwdriver, build his house, then keep that screwdriver forever so he can build other people's houses with it. This seems unfair to me.
And he's right of course: it *is* unfair, because he has lost his screwdriver, which is an analogue, and therefore rivalrous, object. His sheet music, by contrast, in its digital form, is non-rivalrous: I can have a copy without taking his copy. Yes, there's the issue of whether he loses out, but as Eleonor pointed out, sharing sheet music is a good way to drive sales – it's marketing.
The second story concerns lending another friend a first edition copy of a book by Thornton Wilder; once again, the friend refuses to give it back:Two months go by; there's a big hole on my bookshelf where "The Bridge of San Luis Rey" is supposed to go. I call my friend, ask him for my book back. He comes over and says, "I love this book, yo. Make me a copy!"
Again, we have the analogue element: this is a rivalrous object, and when the friend has it, poor Mr Brown doesn't have it. But there's another idea here: making copies:the publishing company won't be able to survive if people just make copies of the book, I say, and the Thornton Wilder estate certainly deserves its share of the income it earns when people buy the book.
Here, the important thing to note is that people *can't* “just make copies of the book”. Yes, they can photocopy it, but that's certainly not the same as a first edition, which is not only rare, but comes with a very particular history. Even if you photocopied the text in order to get to know it, it wouldn't detract from the value of the first edition, which is a rare, rivalrous analogue object. And the Thornton Wilder estate has *already* been paid for the first edition, so there's no reason why they should expect to be paid again if a photocopy is made. And once more, sharing photocopies is likely to drive *more* sales of new editions – which will produce income for the estate.
The third story is even more revealing:I bought a fantastic new CD by my friend Michael Lowenstern. I then ripped that CD on to my hard drive so I can listen to it on my iPod in my car. Well, that's not FAIR, right? I should have to buy two copies?
No. There is in fact a part of the copyright law that allows exactly this; it's called the doctrine of fair use. If you've purchased or otherwise legally obtained a piece of copyrighted material and you want to make a copy of it for your own use, that's perfectly legal and allowed.
And Mr Brown is absolutely correct – in the *US*. But here in the UK, I have no such right. So what seems self-evidently right to Mr Brown in the US, is in fact wrong in the UK. The reason for that is absolutely central to the whole argument here: the balance between the rights of the creators and the rights of the users is actually arbitrary: different jurisdictions place it at different points, as Mr Brown's example shows.
In fact, Eleonor touched on this in another amazingly perceptive comment:I assume that because something that good comes from something so insignificantly negative, it's therefore mitigated.
The “something good” that she's talking about includes things like this:Would it be wrong for me to make a copy of some sheet music and give it to a close friend of mine for an audition? Of course not.
What she is saying is that in weighing up the creator's rights and the user's rights, things have changed in the transition from analogue to digital. Making a copy of a digital object is a minimal infraction of the creator's rights – because nothing is stolen, just created – but brings huge collective benefits for users. And so we need to recalibrate the balance that lies at the heart of copyright to reflect that fact.
As Mr Brown's examples consistently show, he is still thinking along the old, analogue lines with rivalrous goods that can't be shared. We are entering an exciting new digital world where objects are non-rivalrous, and can be copied infinitely. Not surprisingly, the benefits to society that accrue as a result easily outweigh any nominal loss on the creator's part. That's why we need to ignore these calls to our conscience to think about the poor creator – even one as pleasant and sympathetic as Mr Brown – because they omit the other side of the equation: the other six billion people who form the rest of the world.
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Here's a hopeful sign:
We're working to create a more open and less intrusive society. We want to restore Britain’s traditions of freedom and fairness, and free our society of unnecessary laws and regulations – both for individuals and businesses.
On Open Enterprise blog.
I last interviewed Mozilla Europe's Tristan Nitot a couple of years ago. Yesterday, I met up with him again, and caught up with the latest goings-on in the world of Firefox.
On Open Enterprise blog.
So, the long-awaited US Supreme Court ruling on Bilski vs. Kappos has appeared – and it's a mess. Where many hoped fervently for some clarity to be brought to the ill-defined rules for patenting business methods and software in the US, the court instead was timid in the extreme. It confirmed the lower court's decision that the original Bilski business method was not patentable, but did little to limit business patents in general. And that, by implication, meant that there was no major implication for software patents in the US.
On Open Enterprise blog.
Companies based around open source are still comparatively young. So it remains an open question what happens to them in the long term. As open source becomes more widely accepted, an obvious growth path for them is to be bought by a bigger, traditional software company. The concern then becomes: how does the underlying open source code fare in those circumstances?
On The H Open.
There's a nice piece of work by Charles Arthur in The Guardian today that puts a fascinating post from one of Microsoft's top PR people under the microscope. It's all well worth reading, but naturally the following numbers from the memo and Arthur's analysis were of particular interest:
On Open Enterprise blog.
Interesting:The Open University (OU) is now a certified Microsoft IT Academy adding to its fast-growing suite of IT vendor certifications.
The first course in the OU's Microsoft IT Academy programme TM128 Microsoft server technologies launches in October 2010. The course, purpose-designed by the OU, covers both the fundamentals of computer networks and the specifics of how Windows server technologies can be used practically. Registration is now open for the 30-credit Level 1 module.
Microsoft server technologies will form part of the requirement for both Microsoft Certified System Engineer (MCSE) and Microsoft Certified System Administrator (MCSA) programmes, and forms part of the pathway to MCITP (Microsoft Certified IT Professional) certification. The course can also be counted towards an Open University modular degree.
Naturally, offering such courses about closed-source software is an important part of providing a wide range information and training. And I'm sure there will be similarly courses and qualifications for open source programs.
After all, free software not only already totally dominates areas like supercomputers, the Internet and embedded systems, but is also rapidly gaining market share in key sectors like mobile, so it would obviously make sense to offer plenty of opportunities for students to study and work with the operating system of the future, as well as that of the past.
That's true for all academic establishments offering courses in computing, but in the case of the Open University, even-handedness assumes a particular importance because of the context:The Open University has appointed a Microsoft boss to be its fifth vice-chancellor.
Martin Bean is currently general manager of product management, marketing and business development for Microsoft's worldwide education products group.
I look forward to hearing about all the exciting new courses and certifications - Red Hat and Ubuntu, maybe? (Via @deburca.)
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I'll admit it: watching the debates about net neutrality in the US, I've always felt rather smug. Not for us sensible UK chappies, I thought, the destruction of what is one of the key properties of the Internet. No daft suggestions that big sites like Google should pay ISPs *again* for the traffic that they send out – that is, in addition to the money they and we fork over for the Internet connections we use. And now we have this:
On Open Enterprise blog.
This was a pleasant surprise, a *summary* judgment against Viacom in favour of Google:
Today, the court granted our motion for summary judgment in Viacom’s lawsuit with YouTube. This means that the court has decided that YouTube is protected by the safe harbor of the Digital Millennium Copyright Act (DMCA) against claims of copyright infringement. The decision follows established judicial consensus that online services like YouTube are protected when they work cooperatively with copyright holders to help them manage their rights online.
On Open Enterprise blog.
There is certainly no lack of debate about copyright, and whether it promotes or hinders creativity. But in one important respect, that debate has been badly skewed, since it has largely discussed creativity in terms of pre-digital technologies. And even when digital methods are mentioned, there is precious little independent research to draw upon.
That makes the following particularly significant:Doctoral research into media education and media literacy at the University of Leicester has highlighted how increased legislative control on use of digital content could stifle future creativity.
The Digital Economy Act 2010 alongside further domestic and global legislation, not least the ongoing ‘Anti-Counterfeiting Trade Agreement (ACTA)’, combines to constitute a very hard line against any form of perceived copyright infringement.
Research implies that these pieces of legislation could stifle the creative opportunities for youngsters with tough regulation on digital media restricting young peoples’ ability to transform copyrighted material for their own personal and, more importantly, educational uses.
The key phrase here is "young people", because they are using content, including copyrighted materials, in quite different ways from traditional creators. As the researcher commented:“There is a growing risk that creativity in the form of mash-ups, remixes and parodies will be stifled by content producers. With no clear ‘fair use’ policy, even when it comes to educational media production we are in danger of tainting many young people’s initial encounters with the law."
The current approach, embodied in the Digital Economy Act and elsewhere, risks not only stifling the younger generation's creativity, but alienating them completely from any legislation that touches on it. (Via @Coadec.)
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One of the most fascinating strands in the free software story has been Microsoft's interactions with it. To begin with, the company simply tried to dismiss it, but when it became clear that free software was not going away, and that more companies were switching to it, Microsoft was forced to take it more seriously.
On Open Enterprise blog.
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