The smartphone space is turning into a textbook example of why patents not only do not promote innovation as their supporters claim so insistently (though never with any proof to corroborate that claim), but actively block the further development of a field. Just look at the diagram at the bottom of this post from Techdirt to get an idea of how hopelessly entangled things are.
On Open Enterprise blog.
Regular readers of this column will know that I'm something of a fan of forks, but even I was surprised when OpenOffice.org was forked by the Document Foundation six months ago.
On Open Enterprise blog.
The first copyright law, the Statute of Anne - which definitively moved copyright away from its original roots in state censorship - was:An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.
That is, it was unequivocally about "encouraging learning" by promoting the publication of books. Against that background, this is pretty extraordinary:Medical Justice was founded in 2002, and today has about 3,000 members, located in various states and representing different medical specialties, who pay an average of $1,200 a year. The company sells membership as a batch of services, mainly centered around helping doctors that are facing medical malpractice litigation. But the Medical Justice benefit that has drawn the most scrutiny is its program of fighting “physician internet libel and web defamation.” The system works by getting patients to sign contracts that assign away the copyright in any future review they might of a doctor—to the doctor.
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an effort to help doctors get around Section 230 of the Communications Decency Act (an “arcane nuance of cyberlaw,” according to Medical Justice’s website), the law that protects web services from getting sued over content posted by their users. When doctors send review sites a note complaining that a review is false or defamatory, the website is protected by CDA Section 230 and is unlikely to remove the review. But when the same sites receive copyright takedown notices, the law compels them to act—and act quickly. Section 230 doesn’t cover intellectual property claims, and copyright infringement has harsh legal penalties.
There are several interesting things going on here.
First, there is the preferential treatment given to alleged copyright infringement over alleged libel. Obviously US law disagrees with Shakespeare's words:Who steals my purse steals trash; 'tis something, nothing;
'Twas mine, 'tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.
But more seriously, copyright is being wrenched far from its stated purpose of encouraging learning to become an out-and-out tool of censorship - in an ironic return to its medieval origins.
In a way, that's hardly surprising: copyright is a monopoly, and monopolies by their very nature are about exercising control over people. What's odd here, though, is that copyright is being employed to exercise control over someone else's possible future creation - it's an *anti*-encouragement to creativity.
An excellent new site set up to fight this worrying move - wittily entitled "Doctored Reviews" - explains why this is so dangerous:Medical Justice’s efforts may be a sign of things to come. Imagine if other companies used similar contracts. Before you get a haircut, before you buy a six-pack of soda at the local grocery store or before you order a meal at a restaurant, imagine you were required to keep quiet and never post your opinion online about the product or service you purchased. Sound ridiculous? It does to us, and we think it’s no less ridiculous when doctors demand this of their patients.
Ridiculous, maybe, but sadly not implausible: the enforcement of intellectual monopolies is being used to justify extreme international treaties like ACTA and TPP. The treaty "obligations" give participating governments around the world a handy excuse for the imposition of laws that seriously curtail civil liberties and human rights, while laying the blame on their treaty partners (the same circular trick was used to justify keeping the ACTA treaty secret: it was always some *other* country that wanted it that way.)
The present episode is merely part of this larger abuse of ancient and by-now unnecessary monopolies - the perversion of an already perverse system.
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One of the more unexpected interests of Microsoft co-founder Paul Allen is the Allen Human Brain Atlas:Using an innovative approach to human brain mapping, the Allen Institute is developing a one-of-a-kind resource for understanding genes at work in the human brain. Launched in May 2010, the ALLEN Human Brain Atlas is expected to provide insights that propel researchers to understand and discover new treatments for a variety of brain diseases and disorders, including Alzheimer’s disease, autism, schizophrenia and drug addiction.
To its credit, it has adopted a reasonably liberal licence:
You may use, copy, distribute, publicly perform, publicly display or create derivative works of the Materials for research or noncommercial educational purposes or for your own personal noncommercial purposes.
Interestingly, it has this rider:Freedom to Innovate and Rights to Improvements
You may, and are encouraged to, develop new methods, applications, interfaces or other inventions or works that improve the use of, and build upon, the Materials (collectively, “Improvements”). In order to make the Materials available to you and others in the research community, however, the Allen Institute must preserve its freedom to innovate. If you develop an Improvement based on or utilizing the Materials, and you obtain any proprietary rights in or to that Improvement, you and your successors or assigns agree not to assert such proprietary rights against the Allen Institute or its successors or assigns for its or their use of any Improvement independently developed by or on behalf of the Allen Institute that might otherwise infringe such proprietary rights. Additionally, the Allen Institute retains its rights, title and interest in any Materials that are part of or are used by you to create an Improvement.
That's a clear recognition of the fact that "proprietary rights" like patents cut across the "freedom to innovate". It's a pity that the Allen Institute didn't go further, and insist that all improvements be made freely available to everyone, but it's a start.
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Rumours about Google's music service have been swirling for a while now, but they certainly seem to be reaching a new stage with stories like this:The latest rumor to emerge from the Google campus is that the company’s much anticipated music service is just about at the end of their rope with the major label licensing process. A source close to the negotiations characterizes the search giant as “disgusted” with the labels, so much so that they are seriously considering following Amazon’s lead and launching their music could service without label licenses. I’m told that, though very remote and my guess is that it would never come to this, Google may go so far as to shut down the music service project altogether.
When there are rumours that you're about to give up on a project, you know it must be real.
But what really caught my attention was the following paragraph and its final, throwaway line:I’m told that this is when the idea of launching without licenses came up. Google may be starting to think that if the industry weren’t going to sue Amazon, then why would they take on Google? After all, who needs whom the most in this scenario? Could you even wrap your brain around the legal costs? As a source pointed out to me, “Larry, Serge and Eric could buy the entire music industry with their personal money”.
The fact that this is literally true tells us something that is often overlooked: the music industry is economically quite small and unimportant compared to the computer industry. And yet somehow - through honed lobbying and old boy networks - it wields a disproportionate power that enables it to block innovative ideas that the online world wants to try.
On a rational basis, the music industry's concerns would be dwarfed by those of the computer world, which is not just far larger, but vastly more important in strategic terms. But instead, the former gets to make all kinds of hyperbolic claims about the alleged "damage" inflicted by piracy on its income, even though these simply don't stand up to analysis.
But that throwaway comment also raises another interesting idea: how about if Google *did* buy the music industry? That would solve its licensing problems at a stroke. Of course, the anti-trust authorities around the world would definitely have something to say about this, so it might be necessary to tweak the idea a little.
How about if a consortium of leading Internet companies - Google, Microsoft, Yahoo, Baidu, Amazon etc. - jointly bought the entire music industry, and promised to license its content to anyone on a non-discriminatory basis?
At the very least, the idea ought to send a shiver down the spine of the fat-cats currently running the record labels, and encourage them to stop whining so much just in case they make the thought of firing them all too attractive to the people whose lives they are currently making an utter misery....
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Copyright is nominally a compact between public and creator. A government-backed, time-limited monopoly on their works is offered to artists as an incentive to create. Initially, that limited time was 14 years, renewable to 28. Since then, the period has only ever been extended, never reduced - call it the copyright ratchet racket.
On Open Enterprise blog.
As Richard Stallman constantly reminds us, there are strong moral grounds for adopting free software. But whether or not you accept that line of argument, there is another extremely good reason for taking this route: open source is better.
On Open Enterprise blog.
I thought I had plumbed the depths of the UK newspaper industry's stupidity when it came to digital. The idea that putting up paywalls in any way strengthens the readership, reputation and brand of a publication was so far off the mark that I thought it was not possible to go beyond it in sheer wrong-headedness.
I was wrong:The UK government is abandoning plans that would have compelled publishers of content behind “paywalls” to make that content available for free through Britain’s main libraries.
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“The government is committed to delivering regulations that cover non-print content and therefore propose to develop the draft regulations to include only off-line content, and on-line content that can be obtained through a harvesting process.”
The fact that the government was bamboozled into believing that it was impossible to "harvest" online content behind paywalls shows how little it understands about technology: it would be trivial to allow external access through a VPN to the editing/versioning systems that newspaper journalists, subs and editors have access to internally. It would probably cost nothing - as in zero. The idea that it would require "£100K per annum per publisher" as some were suggesting, is absurd.
It's also disappointing to see the Guardian Media Group making idiotic statements like this:“A random patch work of snap shots will “plug the digital black hole” which the British Library (BL) states threatens the nation’s digital heritage ... it poses a real threat to our ability to safeguard our commercial interests. The threat arises from the BL itself.
If they really think "snapshots" are enough, they, too, have not understand the deep changes being wrought by the shift to digital, despite their relative success there compared to other even more benighted publishers. The whole point is that for the first time in history, we have the possibility of capturing everything, and finding unguessed-at connections between them at a later date. This is unique, invaluable data about not just newspapers but the world they purport to mirror that cannot ever be obtained from "snapshots."
This comment also confirms once more that copyright is a canker, eating away even at the heart of one of the few "serious" newspapers with a vaguely liberal attitude to re-use. The fact that the Guardian Media Group thinks that its "commercial interests" somehow outweigh the rights of posterity is a terrible comment on the state of media thinking in this country.
Bear in mind, that this is stuff that theoretically is supposed to enter the public domain after some (long) but finite period: so does that mean all the newspapers will be progressively releasing their files down the years? I think not - it will doubtless be "too expensive" again, and that presupposes that the newspapers are even still around, which I strongly doubt based on their current reading of and response to trends.
And this is the real tragedy. By refusing to allow Legal Deposit Libraries to do their job - to capture culture as it is made, and store it safely for the future - they are inevitably consigning themselves and their production to oblivion at some point, when they close their doors, or the servers crash and the backup copies can't be found or don't work. They are throwing away not just our past, but theirs too.
Update: seems the UK government hasn't swallowed the UK publishing industry's ridiculous claims. Let's hope it perseveres here.
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Since free software was originally created by hackers for hackers, it's no wonder that the first programs they created were tools - things like EMACS - and something to run them on - GNU/Linux. The second generation applications were key infrastructural elements - Web servers, databases etc., while more recently, we've seen the rise of applications like enterprise content management and CRM, as open source moves closer to the end users.
On Open Enterprise blog.
Just over three years ago, Mozilla made an interesting move:
Today we’ve announced the launch of Mozilla Messaging, the new name for the entity I’ve been calling MailCo on this blog. As promised, it’s a new subsidiary of the Mozilla Foundation, focused on email and internet communications.
On Open Enterprise blog.
Here's a textbook case of how gene patents not only do *not* promote innovation, as is so frequently claimed, but slow it down - and will probably cause millions to suffer as a result.
An AIA lawsuit filed in February 2010 against the Jackson Laboratory in Bar Harbor, Maine — a source of laboratory mice funded by the US National Institutes of Health (NIH) — now threatens hundreds of government-sponsored Alzheimer's researchers with litigation.
But wait, what patent might that be?
The suit concerns an AIA patent on a human DNA sequence used in mouse models of Alzheimer's disease. The sequence encodes the 'Swedish mutation' (discovered in a Swedish family), which causes early-onset Alzheimer's. Michael Mullan, a biomedical researcher who is now head of the Roskamp Institute in Sarasota, Florida, patented the sequence in 1995, then sold it to the AIA.
So this concerns a *human* DNA sequence, found in a Swedish family. That is, it is something natural, that was discovered, not invented in any sense. And yet a patent was granted on this non-invention, and this ill-considered move is now casting a chill over an entire field of research that could potentially alleviate the suffering of millions.
Now, tell me again how gene patents promote innovation and progress...?
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You may remember that there was a big to-do about the European Interoperability Framework, and the definition of “open standards”. The key issue was how to create a level playing field so that any company can compete fairly when IT contracts are being awarded by the EU. As I pointed out then, the end-result was a complete disgrace, since it basically paid lip-service to such level playing fields while fundamentally undermining them.
On Open Enterprise blog.
Last week I wrote about the UK government's “new” IT strategy, which is designed in part to avoid some of the costly mistakes of the past. And as far as the latter go, there aren't many bigger or costlier than the NHS National Programme for Information Technology (NpfIT).
On Open Enterprise blog.
I have been reporting on Microsoft all my journalistic life, and believe me, that's quite some time. To give you an idea how far I go back with Microsoft, let's just say I remember the occasion when I was given a personal demo of a hot new product that Microsoft was about to launch – a graphical spreadsheet for the Macintosh, later known as Excel.
I was particularly impressed by the evident passion of the person demonstrating the beta code – he clearly really enjoyed his job. But perhaps that wasn't so surprising, since his name was Bill Gates.
On The H Open.
One of the interesting offshoots of open source is open data. It's still very early days, which means that few have started thinking about the tricky next stage: how to build a business around open data. But some brave souls are already trying, including the company behind something called OpenCorporates, launched a few months back.
On Open Enterprise blog.
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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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.
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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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.
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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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.
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....
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.
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.
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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