Tag: copyright and patent

The same Register article I just referred to contains another interesting quote, this time from the Gowers Review:

“Trading Standards have powers and the duty to prevent the sale of trade mark protected goods. However, where the infringement of rights relates to copyright alone Trading Standards do not have the power to act, and cannot perform searches and seizures. This means, for example, that where there are sales of counterfeit CDs and DVDs, Trading Standards have only a limited response. This creates an inconsistency in the way that the law treats piracy and counterfeiting.”

The “inconsistency” between “piracy” and counterfeiting is hardly random or arbitrary. Copyright law exists to favour producers. If I sell you a copy I have made of Pirates of the Caribbean, you are not the victim, Disney is. On the other hand, trademark law exists in theory to protect consumers. If I sell you a Rolex watch that was not really made by Rolex, you are being cheated. The job of trading standards is to protect consumers, and therefore it has been concerned with enforcing trademarks, and not with enforcing copyrights. No inconsistency.

The Gowers Review recommends that this non-existent inconsistency be eliminated by having Trading Standards officers enforce copyrights also. How has this come about? It is because in reality they are already working for producers, not consumers. Trademark law is now being used as another form of copyright. If I buy a pair of Ray-Ban sunglasses for £2 from a street vendor, I know full well that they have not come from the Luxottica Group. By prosecuting the street vendor, the Trading Standards Officer is not protecting me, he is protecting the producer. It is indeed an inconsistency that the officer can act to protect the monopoly privileges of LVMH or Chelsea Football Club, but not those of Disney or Microsoft. However, he should not be doing either.

There is an efficiency argument for combining the functions of consumer protection and monopoly protection, but that needs to be set against the danger that one will overwhelm the other.

Update: By coincidence, John Kay makes a very similar point in today’s Financial Times about the proper purpose of trademarks.

Patri Friedman precisely expresses my own views on intellectual property. I am not confident enough to come out entirely against IP, but I am doubtful of the benefits of having it at all.

The strongest – but not the only – argument against it, as I’ve said previously, is the cost of enforcing it. Friedman quotes Paul Phillip saying “Enforcing IP law in the 21st century will require government intrusion on a level we can barely imagine”.

I can see no argument against drastically reducing the term of copyright (here in the UK a bill is being proposed to increase the term), and no argument in favour of increasing the scope of IP law into areas such as film plots and fashion styles.

Like Patri Friedman, I have to accept that “you aren’t going to see a few people whip together Lord Of The Rings for fun anytime this century”. However, the feature film is one possibility among a huge range of possible styles of entertainment, and many of them, unlike feature films, can be produced incrementally. It doesn’t immediately occur to you that, faced with producing something on the scale of LOTR without copyright to give you return on your investment, you have the whole world of previously-produced films to use as raw materials. It is difficult to produce a feature film incrementally because you need to use the same actors all the way through, but animated films, for instance, do not present that same difficulty. It is clear we would lose some things without copyright, but it is not at all obvious what we might gain in return. In the cases of the proposed regimes for fashion or stories, however, we can say with confidence that nothing those industries have produced in the past could possibly have been created had the proposed regimes been in force at the time. Every film without significant exception has been derived from earlier stories, and every piece of clothing is derived from earlier garments.

Therefore, I suspect (but cannot prove) that the space of entertainment products that could be made without copyright but not with it, is much larger and more valuable than the space we are familiar with, of products that can be made with copyright but probably not without it.

Cory Doctorow at BoingBoing picks up the story about the 82-year-old woman who paid $2000 in rental for a telephone, but he manages to draw a useful conclusion from it beyond “Aren’t old people daft”.

“Even if you know you’ll never miss a payment, we all know that owning enriches you, renting enriches someone else.”

I think this is fundamentally true. In the long run, the way to benefit from capitalism is to accumulate capital.

His point is directed at the entertainment industry, who are attempting to convert their market from consumers buying and owning recordings, towards consumers renting the right to access recordings. This approach may make sense in the context of the costs of enforcing copyright, but it suffers from the fact Doctorow recognises, that if the industry is not selling ownership of recordings, it is not selling so much value to consumers, and therefore should not expect to take as much money.

An unrelated obstacle to owning stuff, and thereby gaining the full benefits of capitalism, is the general shortage of storage space. That is yet another reason why the War on Housing is the biggest problem facing Britain today.

Speech by Richard Stallman on GPLv3. He spells out the controversial DRM-related part of the new draft license.

The basic change is that if someone, … provides you a binary, then he must, as part of the requirement to provide the source code, give you whatever it takes to authorise your version so it will run.

Considerable thought has gone into this. Eben Moglen supplemented the explanation:

If Manufacturer A wants the software he sells in the hardware to stay one version forever, he has a simple way to do it: he can put the software in ROM. He has no power to modify it, and the user to whom he gives it has no power to modify it. That doesn’t violate GPL version two and it doesn’t violate GPL version three, in current draft.

We will not publish a draft that would be violated by that conduct. What we object to is the attempt to say “I will keep the right to modify the software, but I won’t allow you to have the same right of modification that retain” because that’s simply a technical way of evading the requirement of the licence to pass along all the rights you got.

The question here is over bundling. Tivo sell you a system comprising software, hardware, and services. If the software is derived from copylefted Free Software, recipients must be given the rights over the software specified by the copyleft – the rights to use, modify and distribute the software. What Stallman and Moglen are demanding is that the rights should extend to the hardware and services – that one should be able to use the hardware and services with modified software. They are trying to extend the rights over the software to open up the hardware and the services.

I think this is a mistake. Not because I don’t think that open hardware and open service interfaces are a good thing, but because there is a tradeoff, in terms of what copyleft can achieve, between getting as much as you can and restricting what purposes the software can be used for.

Various programmers have released software with restrictions – that it can’t be used by dictatorships, or arms manufacturers, or whatever. If many people do that, and you try to build systems from a collection of such software, you will pretty soon hit a point where someone disagrees with what you’re doing.

There are many things wrong in the world, and only some of them can be improved using software licenses.

The GPL is a way of using your copyright in software to restrain others from using their copyright in software. There’s an elegant symmetry in that, an automatic kind of agreement. If you want to use GPL’d Free Software, you have to support Free Software. That symmetry isn’t there in saying if you want to use my Free Software, you have to support Free Trade, or renewable energy, or independence for Tibet.

Stallman has always recognised that:

The freedom to run the program means the freedom for any kind of person or organization to use it on any kind of computer system, for any kind of overall job and purpose, without being required to communicate about it with the developer or any other specific entity. In this freedom, it is the user’s purpose that matters, not the developer’s purpose; you as a user are free to run a program for your purposes, and if you distribute it to someone else, she is then free to run it for her purposes, but you are not entitled to impose your purposes on her.

Admittedly, the link between Free Software and open hardware is closer than between Free Software and, say, legalisation of marijuana. But I still think it’s far enough away that it’s a distraction from the core value.

I’ve always (and it’s been at least 15 years now) seen the core value of Free Software as the right to share. If it costs nobody anything for me to copy a program for some one else, and they benefit from it, I should do it, and I shouldn’t put myself in a position where I am prevented from doing that by copyright law.

The right to modify is secondary. It is important, because in the long run software you can’t modify is useless. I am not helping someone by sharing software with them if I get updates and they don’t.

Open hardware is good too. But the FSF is going further than saying that; it is saying that Free Software that runs on closed hardware, which prevents you from running modified versions of the software, is not really free.

I disagree. I can build my own PVR, and I can use GPL’d Tivo software in it, even software that was written by Tivo itself, and even with my own modifications. That’s the key freedom, even if I’m not free to run changed software on the Tivo hardware itself. If I use a GPL’d online poker client, I can use modified version on an open server, even if I can’t use it on the vendor’s server.

And these aren’t far-fetched examples. If a system vendor like Tivo is able to use Free Software in their systems, it pretty much follows that their systems employ general-purpose hardware, and that their modifications to the software would potentially be useful on general-purpose hardware.

Linus Torvalds has a slightly different objection to the Tivoisation restriction, which is also correct. He insists that there are valid uses of locked-down hardware which ought not to be prohibited. My poker example is one, I would claim. Services can be exposed by connecting them to uncontrolled clients.

Update: a number of other senior Linux kernel developers have issued a well-argued position statement expressing their reservations with GPLv3 and the Tivoisation clause.

The BBC is reporting that Microsoft’s WMA copy-protection has been cracked, and that a program for removing the protection has been published.

I haven’t seen any details from authoritative technically literate sources yet, but assuming it’s true…

“An analyst” (Mark Mulligan of Jupiter Research) said Microsoft was probably working to “close the hole” – but I suspect that might not be possible without breaking many or all WMA players out there – including portable music players that play Microsoft’s files.

If so, then from now on, people who buy WMA-protected music from online stores will be able to actually play it on any music-playing equipment they own. Paid-for downloads will be almost as high quality as illegal downloads.

What I would therefore expect would be an enormous spike in the volume of legal paid-for downloads. I would certainly start buying them myself.

This could be the best thing to happen to the music studios since the invention of the CD.

The tech media has long been awash with who will win the HD-DVD / Blu-ray battle, and that horse race has now reached the mainstream

Yawn. My money is on old-style DVD. I really can’t imagine myself buying players for either of the new formats.

The new media formats that have caught on in the last 30 years, CD and DVD, have both offered enormous improvements on what came before, both in reproduction quality and convenience. In both cases, I think the convenience improvements were more important than the quality improvement in attracting customers. HD video recording offers much less noticeable quality improvements, and (due to DRM) a step backwards in convenience. I see no reason why they should not go the same way as LaserDisc and SA-CD.

(You could count audio cassette as a new format too, I suppose. That makes the case stronger – Cassette was a step backward in quality, but forward in convenience).

At one level, this is pretty funny (via BoingBoing) – The Mozilla Foundation has problems explaining to Trading Standards that they can’t prosecute someone for selling Firefox on CD. Trading Standards are flabberghasted. The trading standards officer has the job of telling people that software can’t exist without protection from copying, so the fact that a well-known widely-used piece of software has no such protection produces cognitive dissonance.

There’s a serious point though. Our views about what is right and wrong are not logically derived from self-evident first principles (well, except in my case, obviously). Neither, these days, are they unquestioningly accepted from Authority. Instead they are absorbed from the surrounding culture.

That is the problem. The copyright industry have won widespread background acceptance, not only of their legal privileges, but of a view of intellectual property that is actually far more extensive than has ever existed in law – the view implied by misleading metaphors like “piracy” and “copyright theft”. In this cultural environment, even the existence of Free Software looks like something a little dodgy, and extending the scope of IP law looks like “plugging loopholes”.

They have done this with a deliberate campaign of propoganda, aimed not least at children and schools.

http://www.theregister.co.uk/2004/11/17/graun_piracy_lessons/
http://news.bbc.co.uk/2/hi/entertainment/4055753.stm
http://economics.about.com/cs/mp3svsriaa/a/ip_education.htm
http://www.theregister.co.uk/2004/08/05/uk_school_copyright_lessons/

This urgently needs to be combated. Not head on; we cannot go into schools to tell children it’s OK to infringe copyright, and I don’t wish to. But the other side of the story has to be put forward as well – the benefits of fair use, the importance of the public domain, and the idea that it is a good and generous thing to write software (or music, or literature) and allow others to use and copy it freely. In a world where young children come home from school spouting the most naive ideas about environmentalism, and wearing wristbands advocating funding foreign despots, surely that’s not too much to ask.

We need an “information pack” for 8-16 year-olds, to give to schools, explaining what Free Software is, how it is produced, how widely it is used, and how it benefits everybody. We need to actually get it into schools, and include it in Linux distributions. If anyone has heard of such a thing, please let me know, otherwise it’s time to start the ball rolling.

Tim Lee at Technology Liberation Front revists history to explain why copyright can actually survive without DRM:

It turns out that consumers value the convenience, legitimacy, and positive experience of purchasing legal content, even if they have the physical capacity to engage in piracy. Recording movies off the TV and editing out the commercials turned out to be too big of a headache for most Americans to bother with.

In fact, the best explanation of why legal downloading can work was given by Steve Jobs in an interview in 2003:

Well, let me give you an observation that’s really interesting. If you go to Kazaa and you try to find a song, you don’t find a single song. You find 50 versions of that song, and you have to pick which one to try to download, and usually it’s not a very good connection. You have to try another one, and by the time you finally get a clean version of the song you want, it takes about 15 minutes. If you do the math, that means that you’re spending an hour to download four songs that you could buy for under $4 from Apple, which means you’re working for under minimum wage.

The trouble is, by the time you factor in all the time spend on registering decryption keys and otherwise fighting with DRM systems to use the music you’ve paid for the way you want to, you would have saved time as well as money by finding illegal downloads. Unlike the guy selling DVDs at a car boot sale, the music pirates are offering a superior product.

Unlike those of the masses, the ignorant opinions of politicians really matter. For several years we have been suffering under bad technology law, particularly from the US, passed mainly by politicians utterly ignorant of what they are legislating.

There is a sign (via BoingBoing) that is beginning to change:

… in yesterday’s Commerce hearings, two Senators altered the course of events. First MIT grad John Sununu of New Hampshire said that government mandates “always restrict innovation” and then 82-year-old Ted Stevens of Alaska talked about the iPod he’d gotten for Christmas and put the RIAA’s Mitch Bainwol on the spot about whether his proposal would break Stevens’ ability to move digital radio programs to his iPod and listen to them in the most convenient way (it would).

There is a chance that this is the turning of the corner. Corrupt interests can get bad laws passed, but it’s very much easier if the politicians don’t know why they’re bad. The more that lawmakers are exposed to the technology of the future, the less likely they are to unwittingly ban it.

On a related issue, I recently started reading Lawrence Lessig’s Free Culture. A particularly eye-opening point made early on: Hollywood exists because film-makers went there to escape the effective reach of Edison’s film patents. Hollywood is built on weak IP law.