World Copyright Summit: 7 Billion Elephants

In a couple of weeks' time, the World Copyright Summit takes place in Brussels:

Creating value in the digital economy

The World Copyright Summit is a truly international and cross-industry event addressing the future of the creative community and the entertainment business in the digital economy.

All stakeholders involved in creative industries – creation, licensing, usage, collective management, legislation and dissemination of intellectual property and creative content – now have a unique forum to exchange views on the value of creative works, the future of authors’ rights, the role of creators and their collective management organisations.

It's certainly a pretty high-powered event, judging by some of the big names there. There's Francis Gurry, Director General, WIPO; Michel Barnier, European Commissioner, Internal Market and Services; Maria Martin-Prat, Head of Unit “Copyright”, Intellectual Property Directorate; and Marielle Gallo, Member of the Committee on Legal Affairs, European Parliament.

Alongside these, we have the heads of just about every industry association for writers, musicians, filmmakers etc., as well as a few big names from the creative and media worlds - people like The Reg's Andrew Orlowski and Robert Levine.

The organisers really seem to have included everyone, just as they say: "All stakeholders involved in creative industries – creation, licensing, usage, collective management, legislation and dissemination of intellectual property and creative content."

Well, everyone except one: The Public.

The public is the elephant in the room at this conference - or, rather, the seven billion elephants in the room.

Not only is the public not participating here, it is not even mentioned, as if the very word were some kind of defilement in these hallowed halls celebrating the great intellectual monopoly of copyright, and ways of extracting the maximum "value" from it.

In the extensive programme [.pdf], the nearest thing I can find to an acknowledgement that the public exists is the odd mention of "consumers" - that is, passive recipients of the content industries' largesse - like this one:

Several initiatives around the world have attempted to connect rights holders – and primarily creators – to consumers in order to promote values such as the respect of copyright. This session looks at some of those projects which are aiming to bring creators and consumers closer together.

Even here, then, the "connection" between these consumers and rights holders is "respect of copyright". It's almost as if no other connection can be imagined - the idea, say, that art loses much of its deeper meaning as a social act without an appreciative and involved audience.

Indeed, that word "respect" is hammered home again and again throughout the programme. It forms one of the three defining themes of the whole conference. But here "respect" means one thing only: respect of the public for the monopolies of the rights holders.

This huge and insulting asymmetry is perhaps the perfect symbol of all that is wrong with industries based around copyright today: they sincerely believe that the "respect" involved is all one-way - that the public has no right to respect whatsoever; that laws can - and should - be passed that take from the public and never give, just as the copyright ratchet means term is always extended, never shortened.

This conference, then, is the perfect expression of an industry talking to itself, reinforcing its own prejudices and delusions, and unwilling to accept that the world has changed utterly under the impact of digital technologies; unable even to mention the idea that it's time to engage with those seven billion people - not as consumers, but as new kinds of creators, just as worthy of "respect" as the traditional kind - and rather more numerous.

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Hargreaves Report: Patently Sensible Stuff

It's a measure of how central traditionally dry-as-dust subjects like copyright and patents have become to the modern (digital) world that the Hargreaves Report on the UK's “intellectual property framework” has been so eagerly awaited. That's partly because there is a clear sense that the current systems are dysfunctional and desperately need fixing, and that this report is an important opportunity to do something about it.

On Open Enterprise blog.

Re-using PCs: Remploy's Radical Route

One of the problems with the rapid pace of development in the world of computers is that the latter become out of date and slightly slow compared to the latest speed fiend. Moreover, the computer industry is predicated on the idea that everyone upgrades their systems every year or two, and marketing is largely geared to that end.

On Open Enterprise blog.

Self-Perpetuating Copyright Enforcement

One of the most powerful emotional tricks used by the copyright industry against those seeking to reduce the term and reach of copyright to more rational levels is to invoke the poor starving artists who would suffer if this were to happen.

The fact that the vast majority of creators earn most money soon after producing their work, and relatively little years later, means that taking copyright back to the original 14-year term specified in the Statute of Anne would have minimal effect on them, but it's an undeniably clever pitch.

In reality, the copyright industry couldn't give two hoots about the artists it feeds off, as the following makes clear:

RIAA spokesman Jonathan Lamy previously told TorrentFreak that the ‘damages’ accrued from piracy-related lawsuits will not go to any of the artists, but towards funding more anti-piracy campaigns. “Any funds recouped are re-invested into our ongoing education and anti-piracy programs,” he said.

If the copyright industry *really* cared about the artists, this money would go straight into their deserving pockets.

Moreover, this "re-investment" in anti-piracy programmes makes such actions self-fuelling: the money supposedly gained for those poor starving wretches, is actually used to fund the next action, which funds the next action, and so on.

This means that the copyright organisations have a real incentive to choose a strategy that privileges heavy-handed enforcement over new business models. The latter might result in creators getting paid more, while the former ensures that the fat-cats running the enforcement machine continue to lap up the cream....

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Spain: America's Trojan Horse?

Techdirt had an interesting, if depressing, story the other day:

according to reports about some of the latest Wikileaks State Department cable leaks, it appears that Hollywood and US diplomats were behind the crafting of Spain's newly proposed copyright law. You may recall, of course, that Spain actually has a fairly reasonable copyright law. It says personal, non-commercial, file sharing is okay, and does not seem to agree with the idea that you should blame third parties for actions of their users.

Now put that together with this:

The European Commission is contemplating making Internet providers police their networks to tackle illegal downloads, a highly contested measure which is currently being scrutinised by the European Court of Justice.

Sources close to the Commission claim that the EU executive will try and replicate a Spanish law which forces Internet providers to come down hard on users for making illegal downloads.

It's pretty clear what is going on here: get one or two EU countries to bring in repressive laws that can be cited as precedents, then "harmonise" EU laws so that all European countries do the same.

It emphasises why every country has to fight these kind of neo-colonial impositions by the US copyright industries, because once a crack appears at the national level, the European Commission will be sure to start using it to open up the whole of Europe.

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BSA 2010 Piracy Report: Big Numbers, Big Flaws

In the digital world, it seems, there are two certainties: that every year the Business Software Alliance will put out a report that claims huge amounts of software are being “stolen”; and that the methodology employed by that report is deeply flawed.

On Open Enterprise blog.

Skype-ing Out an Open Source Future

You may remember a legacy company from a few years back – used to be very big in old market segments like the desktop, but never managed to make much impact in growth areas like the web or mobile. Seems like it's found some money down the back of the sofa:

On The H Open.

As British as Raspberry Pi?

There's been a lot of chatter about Apple possibly switching to ARM chips for its laptops and even its desktops. Whether or not that is true, it's certainly the case that the ARM architecture is a major success, as a glance at the huge list of major manufacturers employing it for their products confirms: as well many Android phones, the Apple iPhone and iPod touch are to be found there.

On Open Enterprise blog.

Portugal to Make CC Licences Illegal?

I recently wrote about the suggestion that a "Great Firewall of Europe" should be created - a fine example of political cluelessness when it comes to technology. Here's another, this time from Portugal:

The Socialist Party will present this new proposal for approval in the next Government, no matter if they win the elections or not. In regards to Creative Commons, they support a vision where Creative Commons harm Culture, and in this law proposal they intend to turn them illegal. Here's how (quick translation, I'll soon post the whole proposal in Portuguese online, so others can make their own translation; this is only the part regarding written works, but there are similar items in "Article 3" for other works, except software):

Article 3, point 1 - The authors have the right to the perception of a compensation equitable for the reproduction of written works, in paper or similar support, for instance microfilm, photocopy, digitalization or other processes of similar nature.

[...]

Article 5 (Inalienability and non-renunciability) - The equitable compensation of authors, artists, interpreters or executives is inalienable and non-renunciable, being null any other contractual clause in contrary.

Here: in sum, every author (except software authors, so thankfully free software isn't affected) has the right of getting money out of private copy, and they can't renounce it, so every Creative Commons license, where saying "You are free to share — to copy, distribute and transmit the work" (or actually, in legalese, "licensor hereby grants you a worldwide, royalty-free, non-exclusive, perpetual license to reproduce the Work") is illegal.

Judging by the interesting discussion around the post quoted above, it's still not entirely clear whether this is really the intent of this new law. It's possible, for example, that this is just very badly drafted, and not actually an attack on the idea that creators should be able to share their work freely if they wish.

Unfortunately, a follow-up comment to the post is more pessimistic:

The SPA position (that the Ministry of Culture shares because they state they agree 100% in their positions) is that every creative commons author is harming artists, authors and the creative ecosystem.

The SPA is the "Sociedade Portuguesa de Autores", or Portuguese Authors Society:

Since its creation in May 22, 1925, the Portuguese Authors Society took on two important areas of activity: the mutualist and the cultural. The mutualist one has allowed thousands of authors to find support in old age and in sickness. As for the cultural one, it remains active, always with new proposals.

It seems here that those "new proposals" have nothing to do with helping authors distribute their creations as they wish, but is more about imposing a very one-sided and anachronistic view that only fools give away their creations. (Or as Bill Gates put it some years back: "Who can afford to do professional work for nothing? What hobbyist can put 3-man years into programming, finding all bugs, documenting his product and distribute for free?")

This shows how prescient Rick Falkvinge was when he wrote recently:

Some people, and corporations in particular, claim that the purpose of the copyright monopoly is for a certain profession to make money. That was never the case, and frankly, the idea is revolting to any democracy and functioning market. Bricklayers don’t have laws guaranteeing they make money, marketers don’t, plumbers don’t, and nobody else does, either.

However, the means of achieving the maximization of the available culture has been to give some creators a monopoly on the opportunity — not the right, but the opportunity — to make money off of a creative work. This has been the means to maximize culture for the public at large, and never the end in itself.

This also means that the only legitimate stakeholder in copyright legislation is the public. The monopoly is indeed a balance, but not the “balance” between corporate profits and human rights that the copyright industry likes to paint and pretend. In fact, the copyright industry is not part of the balance at all.

Unfortunately, this is not some abstract battle between different points of view. For example, if CC licences become illegal in Portugal, this would presumably mean that contributing to Wikipedia would also become illegal. Maybe Wikipedia itself would become illegal - there seems no limit to the absurdity of the knock-on consequences when starting from such a ridiculous premise.

Let's hope that enough Portuguese artists protest and the politicians come to their senses before Portugal becomes the laughing-stock of the civilised world.

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Another Business Model for Art: eBay

One of the things that I and others like to emphasise is that investigating new business models is crucial for the survival of art, artists and the companies that work with them. A signal failure to do that has led to the current excesses by the content industries, which have instead become fixated on increased enforcement of copyright laws that are simply unenforceable in the digital age.

Against that background, it's always heartening to hear about artists trying out new things - like this:

Hello, my name is Daniel and I make songs. You can see my stuff by typing "Dan Bull" into YouTube. I've decided to find out what my music is really worth so I'm sticking myself on eBay. The winning bidder will receive:

One song on any topic of your choice, written, performed and produced by Dan Bull. Duration: 2.30 - 3.30 approx. I will liaise with you via e-mail if there any specific details you wish to include in the song. You will be free to use and redistribute this song in any way you wish, however I reserve the right to do the same. The song will be delivered to you in MP3 format within 14 days of the winning bid.

Get bidding now, because this may never happen again. Love from Dan :) x

Well, I actually think it might well happen again - especially if people bid enough money for Mr Bull's song. This patronage/auction model clearly generalises to other forms of creativity, and is flexible enough to encompass all levels of production, from rank amateurs to the biggest names. Interesting stuff. (Via @tdobson.)

Righting Wrongs by Re-writing Ebooks

One key property of printed books is that it is very hard to modify them. Digital books, by contrast, are trivially easy to re-write - provided they are released under a licence that permits that.

One early enlightened example of a book that does allow such modification is Free as in Freedom, a biography of Richard Stallman that came out around the same time as Rebel Code.

Although Free as in Freedom was based on extensive interviews with him, Stallman was not entirely happy with certain aspects of it; he has therefore taken advantage of the GNU Free Documentation Licence it was published under in order to offer his own gloss on the text and facts [.pdf]:

I have aimed to make this edition combine the advantages of my knowledge and Williams’ interviews and outside viewpoint. The reader can judge to what extent I have achieved this.

I read the published text of the English edition for the first time in 2009 when I was asked to assist in making a French translation of Free as in Freedom. It called for more than small changes. Many facts needed correction, but deeper changes were also needed.

...


The first edition overdramatized many events by projecting spurious emotions into them.

However, as Stallman explains, making changes was a non-trivial task:

For all these reasons, many statements in the original edition were mistaken or incoherent. It was necessary to correct them, but not straightforward to do so with integrity short of a total rewrite, which was undesirable for other reasons. Using explicit notes for the corrections was suggested, but in most chapters the amount of change made explicit notes prohibitive. Some errors were too pervasive or too ingrained to be corrected by notes. Inline or footnotes for the rest would have overwhelmed the text in some places and made the text hard to read; footnotes would have been skipped by readers tired of looking down for them. I have therefore made corrections directly in the text.

This ability for subjects of books to offer comments on and corrections to the text is a fascinating new development made possible by digital books and liberal licences. It raises all sorts of questions of how best to offer this extra layer of information and comment, and what the ethical - and legal - issues are in terms of making sure that the reader knows who is claiming what.

With Free as in Freedom 2.0, Stallman is once again a blazing a new trail; it will be interesting to see who follows him, and how.

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Why We Need Firefox

Earlier this week, I reported on my travails with Firefox, and how I teetered on the brink of switching to Google's Chromium. Actually, I wasn't too seriously tempted, and thanks to the kind efforts of Mozilla, the problem has been resolved (see Update at the end of the above post for details.)

On Open Enterprise blog.

Who Should Buy SuSE Linux?

In the early days of companies based around open source, the questions were: would they make any money? Would they survive? Once it was clear that they not only could survive, but also make money quite nicely, the next question became: what happens when they become successful enough to get bought by traditional software companies?

On Open Enterprise blog.

Marine Litter: Fishing for Answers

I have long been appalled by what we are doing to our oceans. Not content with taking out more fish than is sustainable - a mathematically stupid thing to do - we have also turned this amazing, fundamental resource into the world's dustbin. The most visible result of that is the clutch of gyres of marine litter whose dimensions are almost beyond comprehension - and growing.

Closer to home, I have also looked on with rising anger at how European fisheries are mismanaged, not least because of the absurd practice of discards, which results in huge quantities of fish being thrown back into the sea. That is again insane from the viewpoint of sustainability, and a perfect symbol of the irrational way fishing is conducted in Europe.

So I was delighted to hear that the EU fisheries commissioner, Maria Damanaki, wants to stop it:

She wants a ban – which she says is necessary to preserve fish stocks – within two years, as part of a wide-ranging reform of the European common fisheries policy.

Of course, nothing is simple: the fishing industry seems incapable of recognising its own best interests, and is against an idea that would enable them to preserve their industry and jobs in the long run:

at a hearing in Brussels on Tuesday afternoon, held by Damanaki and attended by fishermen's representatives, green groups and consumer groups, some members of the fishing industry vehemently opposed the plans, while others suggested the proposals should be modified.

But something rather amazing has happened. Damanaki has not only come up with a way to address some of the concerns of the fishermen, she has at the same time found a way to start reducing marine litter in the Mediterranean:

I am working with my colleague Janez Potočnik, who is responsible for Environment; we have just been to Athens together, on Friday, to meet public authorities and representatives from environmental organisations and the industry and discuss concrete opportunities to address the issue.

We think to limit –or even ban – the use of plastic bags in retailing. Several EU countries have already put in place different mechanisms to try to achieve this: in Italy plastic bags were banned since the beginning of the year; Ireland was the first country to take action imposing a duty of around 0,22€ on plastic bags since 2002; in Belgium, there is a voluntary agreement of the retailing sector not to issue or at least to charge plastic bags. There is consensus among EU member states on the need to take up the challenge and the Commission is now examining the problem and its possible solutions.

The EU can also offer opportunities to remedy to the present situation: the European Fisheries Fund, for instance, offers now the possibility of developing projects that may contribute to the preservation of the marine environment, such as “fishing for litter” initiatives. Such projects are already ongoing in some countries: in France, among other initiatives, a pilot project will be launched at the end of May, whereby marine litter will be collected by fishermen and sent for treatment.

The fisheries fund can also co-finance port reception facilities in cooperation with the local authorities and municipalities, to collect the waste of fishing and recreational boats.

This is brilliant. Instead of simply telling fishermen they must - for their own good - do things differently, and do different things, it offers a concrete way for them to earn extra money. At the same time, it mobilises precisely those people who are best able to address the problem of marine litter - and avoids all the costs and complications of creating some new task force to do so.

Although it would be naive to expect these measure to be implemented without a fight, I am incredibly heartened to see such creative thinking from the European Commission. This kind of smart approach that turns a problem into a solution elsewhere is exactly what we need for the difficult times ahead. It is vital that we as European citizens support such moves and not let bureaucracy and lobbying stymie them.

Until the last few weeks I'd not really followed Maria Damanaki's work in the European Commission, since I had no expectation that anything so radical was about to emerge from her deparment, but these recent announcements have certainly made me sit up and take notice.

The fact that just a few hours after I tweeted about these marine litter proposals I received a reply from her (or her office) is also highly encouraging, since it suggests someone at ease in the new world of highly-connected and open politics. That, too, is vitally important for the Europe's future, notably its digital side: let's hope she can infect some of her less clueful colleagues.

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Do the Maths

Long-time readers of this blog will know that I like to point out that software patents shouldn't be allowed because (among other reasons) software routines are just algorithms, and algorithms are just maths, which is pure knowledge. Well, a splendid chap has gone much further than my vague handwaving, and *shown* this explicitly:

Google has just been ordered to pay $5M for infringing patent 5,893,120 (hereafter "Patent 120"). This patent covers a very simple data structure and the algorithms for manipulating it. In fact much of the text of the patent is a pseudo-code implementation in a Pascal-like language. So I thought I would provide a practical demonstration of what has, until now, been a theoretical proposition; the reduction of a software patent to set of mathematical formulae.

...

Of course a judge isn't going to know the Lambda Calculus from a lump of rock, but that is what expert witnesses are for. Get a professor of mathematics from an internationally recognised university to testify that these are formulae in the Lambda Calculus, and that the Lambda Calculus is part of mathematics, and you have a sound legal proof. The only thing the patent holders could do is find another professor to testify differently.

Of course, that doesn't stop the lawyers from trying to wriggle out by saying that the patent is for the *application* of maths, and therefore is perfectly legitimate, because it leaves the "knowledge" untouched.

But what this conveniently overlooks is that such patents block anyone else from using that maths in the given field (and knowing lawyers, probably in other fields, too). That effectively turns knowledge into an abstract, useless, glass bead game.

If knowledge is to have any relevance in the real world, it must be applicable there, and not just disembodied and theoretical. Thus these software patents - even if "only" on the application of maths - remain monopolies on knowledge itself; and that way lies madness.

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The Day I Nearly Dumped Firefox

I remember well the moment when the beta version of Netscape Navigator 0.9 was released in October 1994. It was so clearly superior to the main Mosaic browser I was running at the time, that there was no question about using anything else thereafter.

On Open Enterprise blog.

Why Did Wikileaks Fail New Zealand?

As I noted elsewhere, we now know that the US played a major role in pushing for tougher copyright regimes in Canada, Spain and Sweden. It seems that we must add New Zealand to the list of countries that were nobbled:

As you may recall, back in 2008, New Zealand politicians tried to sneak through a three strikes law, that would kick people offline based on accusations (not convictions) of infringement. A few months later, mainly due to massive public outcry, the government scrapped those plans and actually promised a complete rethink of copyright laws.

In a cable just after New Zealand decided to scrap the proposed law, the US embassy noted that it made it clear a new 3 strikes law needed to be put in place as soon as possible and saying that the US can help them write the new law.

...

The cables turned up a few other interesting tidbits from a bit further back, including the fact that a program -- run by the Recording Industry Association New Zealand (RIANZ) to set up a website and get people to snitch on their friends, reporting them as infringers -- was funded by the US government. Yes, the US government handed half a million dollars (New Zealand dollars) to the recording industry to get people to turn in their friends for copying music. Lovely.

Now, this is all pretty shameful stuff; but what makes it doubly so is the fact that New Zealand has recently passed precisely the kind of anti-consumer, pro-industry legislation that the US was demanding.

But consider what might have happened had these same cables surfaced *before* that crucial vote: doesn't it seem likely that quite a few New Zealand MPs would have been revolted by the massive US interference in their internal affairs? Might not enough have voted against the legislation to cause it to fall?

Maybe that wouldn't have happened, but given even the slight possibility, I have to ask why on earth Wikileaks held off publishing these cables that provided such crucial insights into what was going on behind the scenes?

Was this out of some new-found reluctance to influence the unfolding politics of a country? Given Wikileaks' track record, that hardly seems likely. Sadly, this looks more like a case of pure incompetence - only noticing what hugely important materials they had when it was too late for them to have much effect; or maybe - perhaps even worse - they just didn't care what happened in such a far-off land....

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Chipping Away at Open Source Hardware

It would be something of an understatement to say that open source software has been successful. This has led to many interesting attempts to translate that success into different fields, notably content (with things like Wikipedia) and data (the whole open data movement currently spreading through enlightened governments around the world.)

On Open Enterprise blog.

Moral Bankruptcy of the Copyright Industry

As anyone who has followed the area for a while learns, the copyright industry has an extraordinary sense of entitlement. It seems to think that it has a right to demand that governments around the world preserve its outdated business models and existing profit margins - and that it should be granted any kind of extraordinary legal protections for its monopolies to ensure that, whatever the concomitant cost to society.

And yet as Rick Falkvinge points out, that's wrong in all sorts of ways:

The copyright monopoly legislation is a balance between the public’s interest of having access to culture, and the same public’s interest of having new culture created.

That’s it. Those are the two values that go into determining the wording of the copyright monopoly.

The copyright industry always demands to be regarded as a stakeholder in this monopoly. But to give them that status would be to royally confuse the means of the copyright monopoly with its end.

If they were a stakeholder, they would never agree to anything that went against their interests. But the copyright industry is not a stakeholder. They are merely a beneficiary of the copyright monopoly. Just because you benefit from something, you don’t get to affect its future.

That unfounded sense of entitlement would be bad enough, but it seems that it engenders something much worse in some quarters: a complete and utter moral bankruptcy, as this statement from the new director of the Mexican Institute of Industrial Property, Rodrigo Roque Diaz, makes plain:

El tema de la piratería es gravísimo […] brutal para la sociedad mexicana y para el mundo. Las cifras que tenemos del Foro Económico Mundial indican que el comercio ilegal representa el 10% del comercio mundial.

El ingenio lo usamos para violar la ley.

El tema de la piratería es más importante que el tema narcotráfico. El tema de la piratería cuesta billones de doláres al mundo. El impacto económico es muy importante.

[Via Google Translate: The issue of piracy is very serious [...] brutal to Mexican society and the world. The figures we have from the World Economic Forum indicates that illegal trade represents 10% of world trade.

We use ingenuity to violate the law.

The issue of piracy is more important than the drug issue. The issue of piracy costs billions of dollars to the world. The economic impact is very important.]

There we have the view of the copyright maximalists in a nutshell: "piracy is more important than the drug issue" - this from a citizen of a country where the level of violence due to what is here simply dismissed as "the drug issue" is almost incomprehensible for those of us fortunate enough to be distant from it:

Casualty numbers have escalated significantly over time. According to a Stratfor report, the number of drug-related deaths in 2006 and 2007 (2,119 and 2,275) more than doubled to 5,207 in 2008. The number further increased substantially over the next two years, from 6,598 in 2009 to over 11,000 in 2010.

According to the director of the Mexican Institute of Industrial Property, piracy is "more important" than those 27,000 deaths in the last five years.

This is where the insanity of copyright maximalism leads: to valuing the preservation of a government-backed monopoly over the lives of tens of thousands of people. That a high functionary representing the copyright industries can trivialise the suffering of those victims and their families in this way shows how desperately we need to restore not just Falkvinge's "balance" to the copyright debate, but decency and humanity too.

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Who Was Really Behind the Digital Economy Act?

It was just over a year ago that the Digital Economy Act was passed. Of course, the battle to stop this insanity goes on, although the recent verdict against BT and TalkTalk does not bode well. But rather than re-visit all that is wrong with the bill, I want to talk about how it was passed.

On Open Enterprise blog.

Is This the Start of Microsoft Anti-Trust 2.0?

Although it probably seems like impossibly-distant ancient history to most people now, the Microsoft anti-trust case was pretty exciting stuff at the time.

Highlights included Larry Lessig being made Special Master to the court and Microsoft objecting (sadly, it eventually got Lessig taken off the case.) The judge's final “remedy” was to split up Microsoft into two parts: one for operating systems, the other for everything else. Then we had a change of US government, and a much watered-down final settlement that did nothing of the kind.

On Open Enterprise blog.

The Not-So-Great Firewall of Europe

I am staggered by the cluelessness of some politicians [.pdf]:

The Presidency of the LEWP [Law Enforcement Working Party] presented its intention to propose concrete measures towards creating a single secure European cyberspace with a certain "virtual Schengen border" and "virtual access points" whereby the Internet Service Providers (ISP) would block illicit contents on the basis of the EU "black-list".

A big hint of that cluelessness is that these people are still using the term "cyberspace" *seriously* in 2011, as is the fact that they actually think it's possible to create a "single secure European cyberspace" with "virtual borders" and "virtual access points". They only have to look at how porous the Great Firewall of China is - something that has been created and honed by experts with huge resources.

Finally, they seem completely oblivious of the implications of their daft "plan": the imposition of Europe-wide censorship. Again, the fact that "blacklists" (a) don't work and (b) are always flawed is obviously not something the twits in Brussels have quite appreciated. But even if they did work, it's outrageous that the European Union can be contemplating their use without even the slightest twinge of conscience.

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Damaging the DNA of Science

Here's a sad story, but not for the reason you might expect:

Developing therapies from human embryonic stem cells is under threat in Europe, say scientists.

In a letter to Nature, they express "profound concern" about moves at the European Court of Justice to ban patent protection for embryonic stem cell lines.

...

In their letter to Nature, the scientists argue that industry would have no incentive to invest in this area unless their innovations could be protected with patents.

This is the old FUD that unless patents are given for every possible advance, industry will never "invest". Well, even assuming that were true, scientists shouldn't be worrying about that: they are *scientists*, not managers. They are supposed to be motivated by love of knowledge, by the joy of research. Patents weren't allowed on the results of the Human Genome Project, and yet somehow that came to splendid fruition: why should stem cell research be any different?

And the idea that industry doesn't invest without patents is nonsense: that's precisely what happened in the world of software until a misguided court decision allowed programs to be patented in the US. But the introduction of patents in that field has led to a net *loss* for the industry of billions of dollars, as the book "Patent Failure" - written by two supporters of patents - explains in great detail.

The central motivation for innovation is not to get a patent, but to use that innovation to surpass rivals and win business as a result - it's a means to an end. Even if those rivals then use that same invention, they are still at a disadvantage because they are simply following in the original innovator's footsteps. And if they manage to develop the work further, then they advance the field and provide more ideas for yet more innovation - that's how things are supposed to work.

But what's really sad about this whole episode is the fact that scientists have become so corrupted by the trend towards turning knowledge into property that they can't conceive of carrying out exciting science without the nominal incentives of patents. This indicates that something bad has happened to very DNA of science - and patented stem cell research certainly isn't going to fix it.

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Breaking the Monopoly of Celebration

Today is apparently something called "World Intellectual Property Day". How bizarre to be celebrating government-backed monopolies that lock down knowledge.

According to the WIPO site:

The aims of World IP Day are:

to raise awareness of how patents, copyright, trademarks and designs impact on daily life;

to increase understanding of how protecting IP rights helps promote creativity and innovation;

to celebrate creativity, and the contribution made by creators and innovators to the development of societies across the globe;

to encourage respect for the IP rights of others.

So, that impact would be things like HADOPI, which wants to install spyware on every French user's PC; or ACTA, that will turn enforcement agencies around the world into the content industry's private police force; or the New Zealand legislation that would make even watching unauthorised copies of videos on YouTube enough to get you thrown off the Internet.

So what about that "understanding of how protecting IP rights helps promote creativity and innovation"? Well, I'd certainly like to understand that by seeing some independent, peer-reviewed research into the field, because at the moment what we have is just an unstated assumption that intellectual monopolies promote creativity, not evidence.

And it's certainly clear that those same monopolies do crimp creativity when it comes to mashups that are forbidden by copyright, or to writing software programs when surrounded by impenetrable patent thickets. What we need is some research that actually examines whether copyright and patents *do* promote creativity and innovation on balance.

And I'm all for "creativity, and the contribution made by creators and innovators to the development of societies across the globe", but I believe we should celebrate all kinds of creativity, not just the kind that makes money for WIPO's friends. And that means giving back to the great commons of culture - letting creators present and future do with your content what you have done with the work of the past - something that is impossible when copyright terms are so long most people will never live long enough to create using the raw material of their own culture.

And finally, that "respect": respect for monopolies? Really? Respect for excluding people, respect for refusing to share? Can't we do better than that? How about another, rather different, global day that celebrates generosity not judicial threats, sharing not suing?

Of course, pitting ourselves against the might of WIPO machine and its monopolist friends is no easy task: they possess all the power and money, while we must make do with having only right and time on our side.

Time, because the younger generation know instinctively that sharing is good - it's what their mothers told them, after all. And once they rise to positions of power the old monopolistic dinosaurs will suddenly find themselves superseded and looking very silly for the anachronistic idea that digital creations could ever be treated as anything but abundant.

But how should we organise all this? Well, Leo Loikkanen has knocked up a quick World Sharing Day manifesto - completely open and editable, of course - and invites everyone to help hone and perfect it (with a rather tight deadline....)

But that's just one approach: there are many other ways we can celebrate sharing - and I encourage you to , er, share some in the comments, or on your own site, or, indeed, anywhere. After all, why should the intellectual monopolists have a monopoly on all the fun...?

Dell Does it Again

One of the first PCs that I bought was a Dell. It came with 8 Mbyte of memory, 230 Mbyte hard disc, and cost a mere £1479 (the HP Laserjet IV cost an extra £1030) - all excluding VAT. Sadly, it was running Windows 3.1, not least because at this time - 1993 - I had yet to discover free software (and GNU/Linux was, in any case, still pretty rudimentary at this point.)

On Open Enterprise blog.

Do Creatorless Creations Deserve Copyright?

Copyright has its convenient myths. The principal one is that copyright is intellectual *property*, which taps into our natural tendency to support tangible property. The other, more subtle, is that copyright is necessary to fan the flame of the creativity.

In fact copyright inheres in just about anything in fixed form, however banal and trivial - and not just to sonnets and symphonies. But even for these hopeless, quotidian artefacts, there might be some logic to offering the incentive of copyright in the hope that by accident an occasional masterpiece is produced as a result.

But what about this?

This month, Wolfram Alpha’s WolframTones, modestly subtitled “A New Kind Of Music.” (Yes, that would be the same breathtaking humility that led them to originally price the Wolfram Alpha app at a hilarious $50. Fortunately, they subsequently bought a clue.)

It is pretty cool, in a geeky sort of way: music generated by fractally complex cellular automata, in the style of your choice—classical, dance, rock/pop, hip-hop, etcetera. Every composition is unique, and can be downloaded as a ringtone.

That's interesting, but the real kicker is the following:

They lay claim to the copyright on all the generated music, mind you, raising the interesting question of what counts as “fair use”

But this isn't just about "fair use", it goes to the heart of what exactly we mean by creativity. Why should something produced algorithmically be regarded as creative? If there is any creativity, it's at the level of programming - and programs are already covered by copyright - so why is another layer of protection needed?

Nor is this a unique case, as a recent story of a "robot journalist" writing news stories indicates.

Copyright is designed to encourage creativity; but if output is produced algorithmically,there is no need to provide any incentive, since machines cannot (yet) respond to such things, and the incentive to create the program that produces the output is rewarded by copyright in the lines of code. So surely, by logic, such creatorless creations do not need copyright?

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Why Time is Patently on Open Source's Side

So far, I've held off from writing about the proposed sale of 882 Novell patents to a consortium “organised by Microsoft”, since there have been so many twists and turns - first it was on, then off - that making sensible statements about the likely impact on free software was well-nigh impossible. As is so often the case, the devil would clearly be in the details.

On Open Enterprise blog.

How Can Your Content Live After You Die?

The current computer scene is notable for the role played by user-generated content (UGC): Facebook, Twitter, Flickr, YouTube etc. are all driven by people's urge to create and share.

Most of this is done by relatively young people; this means death is unlikely to be high on their list of preoccupations. Which also implies that they are probably not thinking about what will happen to all the content they create when they do die.

So we find ourselves in a situation where more and more content is being produced - not all of it great, by any means, by certainly characteristic of our time and important to the people that create it and their family, friends and users. Despite that rapid accumulation, no one is really trying to address the issue of what is going to happen to it all as users die.

This is quite separate from the more immediate problem of services shutting down, as is happening with Google Video. At least in these cases, you generally have the option to transfer it to some other site. But what happens when you - the creator, the uploader, the one that is nominally responsible for that content - are no longer around to do that?

You might hope that your heirs, whoever they might be, would carry on with things. But that presupposes that you leave all your passwords with them - in your will, perhaps? There are probably also issues to do with changing over the ownership of accounts - again, something that has not needed tackling much yet.

But is it really realistic to expect your family and friends to carry on caring for your content? After all, they will probably have their own to worry about. And what happens when they die? Will they then pass on not only their own UGC, but yours too? Won't that create a huge digital ball and chain that grows as it is passed on to the unlucky recipient? Hardly a recipe for sustainability.

Doubtless at some point some sharp entrepreneur will interpret this coming need as an opportunity. Just as you can pay a company to keep your cryogenically-preserved body against the day when a cure will be found for whatever ailment you eventually die of, so there will be companies offering digital immortality for your content.

The key question - as for those cryogenic preservation companies - is: will they really be around in hundreds of years' time? Of course, that's not really a problem for those sharp entrepreneurs that have your money *now*; and there's also not much you will be able to do about it if they don't make good on their side of the bargain...

What we need are repositories where content can be stored safely with a very particular audience in mind: posterity. To a certain extent, the Internet Archive already does that, but as I know from my own blog posts, its coverage is very patchy. And that's to be expected: a single organisation cannot hope to archive the entire Internet, including its second-by-second changes.

Moreover, depending on on one organisation is like putting all of the world's knowledge in the Library of Alexandria and nowhere else: after a good fire or two, you have lost everything. No, the solution is clearly to store the world's digital heritage in a distributed fashion.

We could start with national repositories, like the great deposit libraries that have a copy of every book published in their land. Those national Net holdings might also be national - after all, if every country did this, the world's output would be covered.

But clearly that's not a safe option either: ideally, you want multiple backups of national material to build in redundancy. You'd also want vertical markets to be stored by relevant organisations - every architectural site by some architectural body, every fishing site by some suitable organisation. You might have even more local stores of data in local libraries, or in local universities. Obviously the more the merrier (although it would be good to have some protocol so that they could all signal their existence and what they held to each other.)

Of course, none of this is going to happen, because the intellectual monopolists would be squawking their heads off about the inclusion of "their" content· This would have knock-on consequences for UGC, since, as we know, the boundaries between what is fair use and copyright infringement is ill-defined without hugely-expensive court cases. No organisation is going to take the risk of getting it wrong given the insanely litigious nature of the content companies.

And so we must sit back and contemplate not only the inevitability of our own demise - however far off that might be - but also the inevitable destruction of all that really ace content we have created and will create. Because, you know, maintaining that 18th-century intellectual monopoly is just so much more important than preserving the unparalleled global explosion of human creativity we are currently witnessing online.

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Of Apple and Android: Running Scared

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.

OpenOffice.org: Freedom on a Fork

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 Perversion of Copyright

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.

...

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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Brain Institute's Clever Move

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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Why Google Should Buy the Music Industry

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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Fighting the Copyright Ratchet Racket

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.

Why Openness is Inevitable

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.

UK Newspapers Confirm Digital Death-Wish

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.

...

“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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Tasting the Delights of OrangeHRM

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.

So What's Mozilla's Message on Messaging?

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.

How Gene Patents Cause Suffering

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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EU's New IT "Principles" Show Unprincipled Hypocrisy

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.

Open Source in Good Health and Vice Versa

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.

Why I Was Wrong about Microsoft

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.

OpenCorporates - Open Database of the Corporate World

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.

How Rigorous Will the RAND Report Be?

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

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

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

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

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

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

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

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

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

...

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

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

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

Got that, RAND Corporation people? Excellent.

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UK Government Promises to Go Open - Yet Again

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

On Open Enterprise blog.

Kafka Alive and Well, Living in Switzerland

You may have come across this sad tale:

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

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

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

And the court's reason for rejecting the appeal?

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

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

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

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Piracy is not Counterfeiting: Updating IPRED

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

On Open Enterprise blog.

Pig-headedness, not Piracy, Killed Recorded Music

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

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

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

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

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

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

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

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

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Why Microsoft Costs the World $500 Billion a Year

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

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

On Open Enterprise blog.

Enclosing the Ocean Commons

The oceans belong to everyone - well, more or less. That is, they form a classic commons. But of course, that fact doesn't stop people claiming that they own stuff even here:

Molecules derived from marine resources and used for medical applications were worth over $1 billion in 2005, and heat-stable enzymes obtained at undersea vents were worth $150 million. Not surprisingly, the business community has responded by patenting genes derived from marine organisms; the authors were able to identify over 8,500 sequences derived from a total of 520 species in a US gene patent database.

This is a double insult to humanity. Genes are part of the DNA commons, and "belong" to everyone or to no one, but certainly not to any one entity. Those genes were extracted from marine animals, which form part of another commons, the oceans' ecosystems, that also belong to everyone or to no one.

But instead of simply recognising those commons, and letting everyone benefit from them directly, the best the patent maximalists can come up with is a cartel, a.k.a. patent pool:

they also suggest that, in the case of marine materials, a patent pool organized within this framework might improve access to genetic information and distribute the risk and profits broadly among far more nations, rather than limiting it to the few countries that can afford high-throughput DNA sequencing.

The logic here seems to be that of course we need patents otherwise nobody will go to the trouble of sequencing all these interesting organisms. What this overlooks is that the cost of sequencing genomes has come down from a billion dollars (for the first human genome) to a few thousand. Next year it will probably be under $1000, and the year after that a few hundred. In a decade, sequencing will cost almost nothing.

What this means is that, once more, intellectual monopolies are being given away needlessly - no quid pro quo is in fact necessary because practically anyone will be able to do this for very low cost. And once again it's you and me who lose out, as knowledge is sent to the intellectual equivalent of Davey Jones's Locker....