As promised in my previous post, I include below my submission to the UK Independent Review of "IP" and Growth.
Submission to Independent Review of “IP” and Growth
In this submission I will restrict my comments to two areas: software patents and digital copyright.
On Open Enterprise blog.
A couple of weeks ago I wrote about the UK's ”Independent Review of Intellectual Property and Growth”, which is currently soliciting submissions from interested parties. The corresponding Web site is very helpful, providing background information and an entire section that seeks to explain what exactly the review is looking for.
On Open Enterprise blog.
I've noted elsewhere that there is a major piece of FUD being put about by content producers: that piracy causes massive damage to a country's economy. But as that post explained with regard to the BSA's claims about the harm of software piracy, here's the reality:Reducing software piracy will not magically conjure up those hundreds of billions of dollars of economic growth that the BSA invokes, or create huge numbers of new jobs: it will simply move the money around - in fact, it will send more of it outside local economies to the US, and reduce the local employment.
The basic idea is really pretty simple to understand. When people make unauthorised copies of content or software, they save money. But that doesn't mean they put it in a bank: human nature being what it is, that money is generally spent elsewhere in the local economy.
And yet despite the simplicity of this crucial idea, report after report seems to have difficulty grasping it. Here's another [.pdf], this time on film piracy, put together by UK Ipsos MediaCT and Oxford Economics for AFACT (the Australian Federation Against Copyright Theft). The top-line "results":6,100 Full Time Equivalent (FTE) jobs were forgone across the entire economy (equivalent to more than six times the number of job cuts announced by Telstra in October 2010) including nearly 2,300 forgone directly by the movie industry and retailers. These impacts of piracy on employment persist as long as piracy persists.
Allowing for effects on other industries, some A$1,370m in Gross Output (Sales) was lost across the entire Australian economy.
This was equivalent to a loss of GDP of A$551m across the Australian economy – reducing national economic growth and Australia’s ability to invest in its future.
Tax losses are A$193m, representing money that government could employ for other social uses in areas such as education and healthcare.
What's sad is that the report does try to make reasonable assumptions about piracy:We do not assume that every pirate version equates to a lost sale.
We do allow for ‘sampling’ - those who see an authorised version subsequent to the pirate version are not treated as contributing to lost revenue. In fact, we make the very cautious assumption that no lost revenue results from piracy if any authorised version is seen subsequently.
We do allow for ‘over-claim’ – we apply a ‘downweight’ to those claiming they would have paid for an authorised version (had the pirate version not been available).
But this laudable attempt at rigour is completely undermined by the fact that nowhere in the report is there any recognition that all this "lost" money does *not* disappear, but is simply channelled elsewhere in the Australian economy, where it might actually create more jobs than it would if spent on films (because of revenue outflows to the US, and the fact that local money would be spent on more labour-intensive industries like retailing or catering.) Similarly, it *does* produce tax revenue for the Australian government, just from different sources.
It would be far more conducive to producing an honest debate about the *real* effects of unauthorised copies on national economies if these key facts were included for a change; by continuing to ignore them, these misleading and one-sided reports amount to little more than industry propaganda.
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The dust has barely settled on the announcement of the major deal between Nokia and Microsoft, weird possibilities have been and gone, and we are all still pondering the implications. One of the key concerns for readers of this blog will be: what are the effects on free software? And: who will be the open source losers - and winners? What follows is just a first sketch of what the eventual answers may be: expect them to be refined and possibly reversed as more details and reactions emerge.
On Open Enterprise blog.
In a post last week, I wrote about the current obsession with “IP”, and noted some moves to make it more suitable for the digital age. In this post, I want to look at the other main class of “IP”, patents. Surprisingly, perhaps, I won't be talking about software patents, not least because I've written plenty on the topic. Instead, I want to consider patents on analogue - that is, purely physical - objects.
On Open Enterprise blog.
One of the sure signs that open source has entered the mainstream is when companies not normally associated with this approach starting getting involved. A case in point is Qualcomm, not someone that I've come across in this area before apart from this kind of half-hearted toe-dipping (but maybe I missed earlier work: anyone know of anything previously?) Here's a very interesting project they are supporting:
On Open Enterprise blog.
As you may have noticed, the topic of “IP” - “intellectual property” - seems increasingly to the fore these days. Actually, that's not really a new trend: as this helpful ngram shows, there has been a really rapid uptake of the term since the 1980s. But promoting the supposed virtues and use of “IP” ever-more widely has turned into something of a bandwagon for politicians who want to be seen to be doing something, and for those who want to assert their intellectual monopolies more strongly.
On Open Enterprise blog.
As I've noted before, one of the tricks used in the current ACTA negotiations is to blur the lines between counterfeiting and piracy, and to switch between the two whenever it suits the argument. So it's no surprise that a conference bringing together many intellectual monopoly maximalists, the grandly-titled "Global Congress Combating Counterfeiting and Piracy", used the same trick.
The emphasis is very much on the frightening "big numbers" of counterfeiting:the problem of counterfeiting is growing, which is illustrated by a report on challenges facing the world in 2011, which was recently published by Robert Greenhill from the World Economic Forum. The report says that the illegal economy, corruption, and organized crime all work together to the detriment of society. It estimates the total value of counterfeits in the world to be $360 billion, including $200 billion in counterfeit medicines and $50 billion in counterfeit cigarettes. There is also $60 billion worth of pirated videos. This lessens the economic competitiveness of many countries.
Even if we accept what are probably inflated numbers, the last sentence is simply wrong. Countries where counterfeits are widely sold may damage themselves in the long term through fake medicines, but in the short term they keep more money in the local economy, which is likely to boost their competitiveness since it allows for greater economies of scale there.
Similarly, a speaker from Interpol talked about:two specific operations taken in the past year to combat piracy and counterfeiting. Operation Jupiter 5 in South America involved 13 countries and led to over 7000 arrests and the seizure of over $200 million worth of counterfeit goods.
Meanwhile:Gerhard Bauer, President of the International Trademark Association (ITA) noted that the size of the counterfeiting phenomena is so vast that it is hard to grasp, and that it leads to the ruination of many legitimate businesses. The ITA participated in a summit yesterday to discuss how different organizations can work together to build awareness of the program and to build support for ACTA.
None of this, of course, has anything to do with Internet piracy, and yet, as the mention of ACTA reminds us, it is precisely in this field that intellectual monopolists have been most active - and disproportionate in their demands.
The crucial role of ACTA was admitted during the conference:ACTA is very important because it is more ambitious than any other previous agreement, including unique provisions on seizure and destruction of infringing goods; more criminal prosecutions; more possibilities for enforcement at the border. Especially significant, ACTA is the first treaty that specifically deals with the internet. He noted civil society concerns with ACTA, which he called “legitimate,” but which “must be allayed.” ACTA is compatible with the Doha Declaration, won’t interfere with trade of generic drugs, contains and contains no measures for intrusive searches of passengers. Civil society must be convinced of this.
Again, there is the confusion between counterfeiting - "seizure and destruction of infringing goods...enforcement at the border" - and the digital world, whose goods cannot be seized or destroyed, and for which borders are largely nominal.
Significantly, as the speaker seeks to address "civil society concerns with ACTA", he does not mention the fact that ISPs will be forced to become agents of intellectual monopolists, or the knock-on loss of privacy that will result, or the chilling effect this will have on free speech. That's because he has no answer to these very serious criticisms of ACTA, which has been pushed through largely by exploiting the deliberate confusion between counterfeiting, with its undoubted analogue risks, and digital piracy, which has none.
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One of the most embarrassing features of the dotcom era was a habit of putting “cyber” in front of everything to make it look hot and trendy (disclosure: I did it too, but I was 15 years younger then...). Don't look now, but it's back:
On Open Enterprise blog.
The Apple iPad is a huge hit: 7.33 million of them were sold in the quarter ending in December. That's a pretty amazing achievement. But despite that, there are good reasons to believe that 2011 will mark the start of the ascent of Android as king of the tablet world.
On The H Open.
Over on the RedMonk blog, there's an entertaining post by James Governor on the subject of forks, prompted by the imminent arrival of a major new version of Android, version 3.0, code-named “Honeycomb”, designed with tablets in mind:
On Open Enterprise blog.
The opposition between openness and so-called "rights" - which are typically state-granted monopolies like copyright and patents - becomes clearer by the day. But it is extraordinary is that those holding those monopolies think they need more - not least to fight recent minor gains in the field of openness and transparency. Here's some deeply troubling news:To what extent will a right-wing French MP sympathetic to big business and French government's ongoing manoeuvres to create a "corporate confidentiality" label endanger critical reporting on corporations and business transparency?
Last week, French right-wing MP Bernard Carayon in an interview for the website Rue89 boldly stated "I claim that the State and private companies should also benefit from physical persons' right to privacy. [...] Companies should be allowed to define for themselves which information remains secret [...]."
Specifically:Carayon wants to increase protection for "economic information" by introducing a three-year prison sentence and a 375.000€ fine for anyone found guilty of breaching “the confidentiality of information of an economic nature".
This would clearly have a chilling effect on efforts by whistle-blowers to expose corporate wrong-doing. But it gets worse, much worse.
The French government, already one of the chief enemies of a free and open Internet (think HADOPI) wants all of Europe to give business this new "right":the French government, through the Inter-ministerial Delegation on Economic Intelligence (a high-level informal body gathering officials from the Ministries of Defence, Interior, Research, Budget, Environment, Foreign Affairs and the Economy, and that now directly reports to the French Presidency), is also working with a number of big French business lobbies (Medef, AFEP, CDSE, CGPME, Chambers of Commerce...) to design new legislation intended to create a new legal label, “corporate confidentiality”, to protect corporate information that is not covered by existing intellectual property laws. According to the head of this body, Olivier Buquen, this will cover “all strategic information, which can be, depending on the company, a client's database, a business plan or the details of a partnership […] we wish to simplify legal procedures for companies, and to create penalties that are severe enough to act as a deterrent. Our text will foresee legal proceedings against whoever steals or leaks a company's key information.”
For a land that once believed in liberty and equality, never mind the fraternity, these are shameful proposals, and confirm the present French government's pro-big business, anti-consumer attitudes. We need to fight these now before they get too far in the system and thus harder to root out - do read the whole of the excellent and detailed post from which these excerpts were taken. (Via @CountCulture.)
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On Monday, I called the HMRC to give them some information they wanted from me. After being placed on hold for about 10 minutes, I finally got through, and was rightly “taken through security”. After all, it's vitally important that HMRC and similar organisations establish that the person they are talking to is indeed that person. Unfortunately, security had been “upgraded”, so you probably know what is coming next....
On Open Enterprise blog.
Free software was inspired in part by the scientific method, but it is only now that science is starting to apply free software's key insights. For example, opening up the source code would imply that scientific papers should be made freely available for anyone to read and use. And yet it is only in the last few years that this open access approach, as it is called, has made significant headway against the prevailing proprietary system, which says that you have to pay - often handsomely - if you want to read a paper.
On Open Enterprise blog.
The concept of the commons derives from common land. This still lives on in England, in the form of commons - like Clapham Common - and as national forests that all can use. Against that background, I am naturally appalled that the coalition government proposes selling off our forests in order to raise a few pennies to throw into the bottomless pit of our National Debt.
The campaigning site 38 Degrees if fighting this with a petition, and is also encouraging Brits to write to their MPs. Here's what I've just sent using WriteToThem:I am writing to you about the proposed sell-off of Britain's forests.
Although I broadly agree that our currently very onerous national debt needs to be reduced, it is important that efforts to achieve this do not result in rash or irreversible actions. I believe that selling off our forests would be such an action.
If forests are sold, they will be bought with a view to profit maximisation. This will inevitably lead to felling and destruction of habitats up to the limit of the law (and probably beyond if buyers think they can get away with it).
Indeed, it is quite likely that many buyers will be from overseas, particularly in those countries that have large cash reserves. They will have no compunction in destroying the environmental resources of another country, since they wish to extract the greatest profit in the shortest time possible, and will certainly not be overly worried about local effects caused by their actions.
Once damaged, these resources will take hundreds of years to regenerate, and may well be lost for ever. At a time when the environment is under pressure on many fronts – not least rising population and climate change – it would be foolish to reduce national holdings of this key assets. If anything, the Government should be *increasing* the extent of national forests.
As well as providing valuable resources, they offer Britons a much-needed refuge from the pressures of modern life. Again, if forests are sold off, access is bound to be reduced (not least by felling activities); this will lead to a general loss of the quality of life – hardly something that the Government should be encouraging.
For these reasons, I urge you not to support these sell-off plans. I would be grateful if you could please convey my concerns to the ministers concerned, and to ask them to reconsider.
If you care about the commons - or just like trees - please consider sending a brief email to your MP.
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The Economist has been writing poorly-informed articles about open source for years - I dissected a particularly egregious example back in 2006. So it's hard to tell whether the flaws in this new book review are down to that antipathy, or whether they are inherent in the title it discusses, “The Comingled Code”. As far as the latter is concerned, the following information does not inspire confidence:
On Open Enterprise blog.
I wrote about the open source OpenStack back in October, based largely on wandering around the main OpenStack site. But there's no substitute for talking to people involved - especially when they are Lanham Napier, CEO of Rackspace, one of the two instigators of the OpenStack project (the other being NASA). He filled me in on the background to both his company and the OpenStack project.
On Open Enterprise blog.
One of the reasons that I regard the rise of WikiLeaks as such a key event is that it is throwing an interesting light on so many areas – many of them unexpected. That includes the ethics of hackers and the world of open source.
On The H Open.
A few months ago, I spent quite a few words disembowelling a BSA report on piracy that made some highly-simplistic assumptions and calculations about the alleged impact of pirated software on economies around the world. This was the report's main thesis:
On Open Enterprise blog.
As my occasional postings on the subject indicate, one area that fascinates me is that of fabbers, aka 3D printers. One reason is that they effectively make our analogue world digital, in the sense that they allow 3D objects to be captured as digital representations, and then printed out. The other reason - a consequence of the first - is that by producing these representations, they transport many of the trickiest digital issues into the analogue domain. But more of that anon.
Of course, I'm not the only person to have noticed that the world of fabbers has the potential to bring the same kind of disruption to the analogue world that computers and the Internet have brought to the digital sphere. One benefit of this growing appreciation is that there are more resources available about 3D printers and related areas, and that they are becoming richer as the field grows.
A good example is a new report commissioned by the White House Office of Science and Technology Policy [freely available as pdf]. Indeed, I'd say that it probably represents the best single introduction to this whole field.
One virtue is comprehensiveness. As well as covering areas like fabbers (my own personal interest), it also discusses desktop milling machines; laser cutters and engravers; sewing and embroidering machines; and desktop circuit makers. It has a handy run-down of the main companies active in this area, including makers, aggregators and designers; and a detailed examination of the advantages and uses of desktop personal manufacturing devices. It is particular strong on the importance of educating the younger generation in these technologies - rightly so, since these will be the tools with which they will shape and build their world.
But for me, the most interesting part - because most problematic - is that which touches on the legal issues surrounding this rapprochement of the analogue and digital ways:
In our long tail world of media and information, files containing digital music, content, video, artwork, and data are easily copied. As a result, chasing down copyright violators of digital works has become as unproductive as chasing after a cloud of gnats. Preventing copyright and patent violations in the world of electronic blueprints and small-scale manufacturing machines will be equally challenging. The personal fabrication process spans both the digital and physical worlds and involves two components that involve intellectual property issues: the electronic blueprints and the resulting physical object. While one can protect a digital blueprint using digital rights management, this approach offers only a partial solution, since once the electronic blueprint is put to work fabricating physical objects, it can be used to produce as many objects as the maker wants to make. The resulting physical objects, unlike a music file, cannot be digital signed.
The report boldly suggests a way of handling some of these problems, encapsulated as one of its recommendations:13. Explore micropatents as a smaller, simpler, and more agile unit of intellectual property
Here's its explanation of the concept:
An inventor would submit, for a few hundred dollars, a document describing their invention to a centralized government micro-patent repository. The document would be time-stamped and immediately publicly released, without having to be subject to the traditional tests of novelty, utility and non-obviousness. The inventor’s micro-patent application would claim very few fields of use, perhaps there could even be a mandatory limit on scope to qualify as a micro-patent. By filing this document, the inventor would immediately be granted an implicit, short-term (say 5 year) exclusive right to her new disclosed idea, as long as the idea was not already disclosed publicly earlier. Only in the case of alleged infringement, would intellectual property experts, lawyers, and the judicial system be brought to bear on the case with all the costs, time and complexities involved.
The key idea here is to offer "simple, agile and cost-effective intellectual property protection"; that is, making it easier to obtain patents, albeit lightweight ones. But in doing so, it will remove one of the few remaining barriers to patent applications, which inevitably will mean that every patent troll in the world will file thousands of trivial claims, since it will take so little effort or money to do so. It will give rise to the equivalent of patent spam.
Worse, these patent spammers will then proceed to sue huge numbers of inventors - and users - of objects made using fabbers. In fact it will become exactly like the world of copyright today, where tens of thousands of letters are sent out to alleged infringers, threatening to sue them but offering them a special "low-cost" way of settling.
Even more damaging, such a lightweight system will create a patent thicket around objects made with personal manufacturing systems that even nanotechnology will be unable to pierce. Again, we already have an all-too concrete example of what happens when it is easy to obtain patents for key ideas that are often indispensable for all users, in the world of software.
Before software could be patented, programmers wrote software by drawing on the commons of software techniques - and adding to that commons themselves. They didn't need to worry about "infringing" on someone's idea, because you couldn't get patents on ideas - just copyright on implementations of those ideas.
Now, with software patents being awarded in increasing numbers, things are so bad that it is probably impossible to write any non-trivial program without nominally infringing on someone's patent. That proliferation has led to dense software patent thickets, most notably in the world of mobile phones, where multiple companies are suing each other, wasting valuable resources that could have been devoted to creating more innovative products, not paying lawyers' bills.
The example of software shows us that patents simply do not work when applied to the digital realm. Indeed, the software industry spends far more money litigating software patents than it actually earns from licensing them. The fascinating book “Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk” by James Bessen and Michael Meurer (Princeton University Press, 2008) quantifies this: the aggregate annual patent profits for software in the US were $100 million for the years 1996-9; the aggregate litigation costs for the same period were $3,880 million. There is no evidence that things are any better now.
It would be utter folly to import the worst features of the existing digital world into the new one that is emerging. Micro-patents will not foster progress and innovation: they will actually make things worse than the current situation, hard though that may be to believe.
The only solution is to have not "micro"-patents, but the limiting case where the size of the patent tends to zero - that is, none at all. Then, companies and inventors would compete not on the underlying ideas (which patents try to capture and monopolise), but on their *implementation* of them.
As well as avoiding patent gridlock, this also addresses issues of copying and counterfeiting, since people will pay more for otherwise identical products when they come provably from a trusted supplier, and also of safety, since it rewards better-quality products (not just patented ones).
As such, it's patently better than "solutions" based on intellectual monopolies that won't ever work (as proved by copyright and its attendant legislation, which have failed to stem the flood of shared music and video files in the slightest) and will actually lead to a net loss for companies forced to deploy them (as software patents and their thickets demonstrate). (Via Shapeways.)
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I've been following the move to open data by the UK government for some time on this blog. Major milestones include the creation of the data.gov.uk portal and the recent announcement back in November that “all departments will publish details of their spending over £25,000 for the last six months.” Now we have this:
On Open Enterprise blog.
Open access is about making copies of publicly-funded research available freely online. This stems from the belief that (a) having paid for it, the public has a right to see it and (b) a general view that access to knowledge should not be restricted to those that can pay for it (not least because it is precisely those that *cannot* pay who need it most).
Against that background, and of the growing success of open access in bringing knowledge to the developing countries, this is disgusting:From 4 January Elsevier Journals withdrew access in Bangladesh to 1610 of its publications, including the Lancet stable of journals, which had been available through the World Health Organization’s Health Inter-Network for Access to Research Initiative (HINARI) programme. HINARI was set up in 2002 to enable not for profit institutions in developing countries to gain access online to more than 7000 biomedical and health titles either free or at very low cost.
Springer has withdrawn 588 of its journals from the programme in Bangladesh and Lippincott Williams and Wilkins 299 journals. The American Association for the Advancement of Science and the American Society for Animal Science have withdrawn access to, respectively, two and three of their journals.
To add insult to injury, some of the articles published in those titles are by researchers who now cannot read them:Tracey Koehlmoos, head of the health and family planning systems programme at the International Centre for Diarrhoeal Disease Research in Dhaka, said, “We are a little less than 300 scientists eking out world class research on a shoestring budget without the purchasing power capacity of a big university in the West. HINARI has been our lifeline. My colleagues publish in many of these journals, and now we won’t even have access to our own papers.”
Companies publishing academic journals typically enjoy a profit margin of 30%; providing them free to scientists in *non-profit organisations* in developing countries will have an infinitesimal effect on their bottom lines.
It's sheer, unadulterated greed that seeks to squeeze some money out of those that have precious little of it, in effect stopping them spending it elsewhere where it is sorely needed. It wouldn't surprise me to learn that people will die as a knock-on consequence of that diversion of resources.
I do wonder how the well-paid fat-cats running these huge publishing conglomerates (disclosure: I once worked for part of Reed-Elsevier, so I have some experience of these things) look at themselves in the mirror after making decisions like this.
But at least their selfish and callous action does helpfully underline one of the big problems with copyright: the fact that it allows companies that didn't even produce the research that they publish, and to which they very often add very little value themselves, to decide who gets to read what ought to be the common heritage of humanity. In other words, it's an intellectual monopoly that is wielded with only profit maximisation in mind.
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The more powerful that Google becomes, and the more it needs to satisfy investors' desires for a good return on their money, the more it comes under pressure to move away from its famous “don't be evil” motto. So it's nice to be able to report on a move that seems true to that original aspiration:
On Open Enterprise blog.
Dimdim is a Web-based collaboration platform that I signed up for ages ago, but never quite got around to using. Looks like I may have missed my opportunity:
On Open Enterprise blog.
I asked Glyn’s help to answer many questions that came to my mind in the latest few months that shown how tough the fight to keep the Internet Free and Freedom respecting will be in the future.
For them as might be interested in such things - with bonus Italian translation.
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