I’m pleased Nick Clegg has blocked the Communications Data Bill, but if we’re to avoid the same zombie bill coming back in the night for our brains we need to fill the vacuum it leaves. I explain more on ComputerWorldUK today.
I signed up Meshed Insights as an OIN licensee, and was amazed when I told people how few people knew it existed. That was the origin of this week’s InfoWorld column. I realise OIN doesn’t fix everything (how can it when what’s really needed is a return to first principles for the patent system in the meshed internet era?) But as free a defence that might just work, and which has a huge membership that collectively sends a strong message to the US government that startups need change, it seems obvious to join.
I remain bemused by Nokia’s attack on the prospects of the VP8 video format becoming an open standard. I can’t see what they & their shareholders get as a benefit, but I can see the harm it does to Nokia in the eyes of pretty much anyone who values open source and open standards. Read more in my InfoWorld column today.
Now I am clearer on the details of the press hacking regulation that’s being railroaded through the UK Parliament, I just sent this to my MP. Feel free to borrow from it.
I’m one of your constituents ($postcode), as well as being a pro bono director of Open Rights Group and a writer on digital rights issues.
I am extremely concerned about the way the Leveson response is being railroaded through Parliament. I see all the main decisions have been made without Parliamentary scrutiny and are about to be introduced with a nod & wink in the Crime & Courts Bill discussion in the Lords on Monday (see http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0137/amend/pbc1371803m.pdf). I’m contacting you directly as time is very short for you to act by expressing concern over the lack of due process and the risk of collateral damage.
I’ve discussed this with my colleagues both in my own consulting practice and at ORG. We believe that serious conceptual flaws exist in the language of the amendments, and that unwittingly the Leveson responses – nominally targetting large media corporations – will end up introducing new rules that regulate internet publishing by much smaller entities which were never targetted by Leveson.
As an example, Apple could use these new provisions to chill disclosure of newsworthy product leaks such as http://www.macrumors.com/2011/12/26/2011-biggest-apple-product-leaks/. A company like Monsanto could use them to discourage public criticism of its strategies. Energy companies could use them to threaten and chill coverage of climate change. Perhaps even whalers could use them to silence Greenpeace supporters.
From reading amendment NC29, pretty much any web site with adverts or run by someone with a consulting activity could be construed as “in the course of a business” and many bloggers have guests, co-writers and translations that plausibly qualify as “written by different authors”. It’s entirely feasible that a corporation could threaten litigation under these measures to chill discourse. Amendment NS5 offers no comfort.
These corporate repurposers don’t have to be right, and it doesn’t even need to go to court to have a chilling effect. With such high stakes, most of us would just fold rather than risk such enormous penalties. As drafted, the amendments create new weapons for corporate litigants that worry me and others greatly.
It doesn’t have to be this way, but the whole response is being railroaded by very narrowly-focussed non-experts with no concern for the collateral damage they are doing. The last time I recall this sort of panic – over the Terrorism Act Section 44 which started out as “preventing terrorism” – we ended up with “random stop-and-search powers being exercised by the Met on any motorist they felt like bothering”.
Please can you consider the matter and if you agrees urgently express my concerns? I am available for discussion by phone.
Update: ORG now has an easy form to help you write to both your MP and the party leaders.
The UK’s Home Office continues to push for maximum surveillance powers with minimum accountability in the latest adjustments to the Communications Data Bill. I decided to find out just how much consultation with non-corporates there had been before the Bill was introduced originally.
See the FOI request I placed and the response I received - there were a total of four, and no meetings worth keeping records of the content were held. Although the Parliamentary Joint Select Committee said consultation with civil society organisations was needed, by all accounts the meetings since then have been worthless too, with just notification and talk rather than true consultation. One small note for any BCS members listening to their claims they represent you; they are not listed in the response.
Open Rights Group now has a form for citizens to ask for a proper consultation to be held. They would welcome both individuals and organisations completing the form to show demand for a proper consultation.
The politics around codecs are complex and the incumbents are prone to deceptive feints, like in 2010 when MPEG-LA claimed that H.264 was available “free” for web uses (but content owners probably still paid multiple fees in the production chain). So it is perhaps understandable that some people misunderstood Google’s agreement with MPEG-LA and interpreted it as a victory for the patent circus and the end of any claim of freedom for VP8.
In fact, my reading of the available facts suggests Google won. The license with MPEG-LA looks mostly face-saving for the patent pool, and the attacks from the incumbent companies suggest they’re falling back on the next line of defence. The whole situation is an object lesson in why software patents simply must not be tolerated. Read more in InfoWorld.
If you’re a US citizen, your support for the bipartisan SHIELD Act could strike a decisive blow to patent trolls by making them pay costs if they lose patent actions and allowing judges to require a bond for costs from them before a case can proceed. Striking at their ability to build a fighting fund could well be the key to making the “business” they conduct unprofitable and dangerous.
While advocates of patent maximalism claim this also disadvantages small businesses legitimately prosecuting patents against larger foes, my take is small software businesses should be avoiding patents anyway. There are a few counter examples from the world of hardware (Dyson is frequently cited) but they are an expensive weapon; expensive to wield and likely to bring more value to the vultures who will pick over the wreckage of your business than to you yourself.
Read all about it over on InfoWorld.
Why is a song that I play digitally or a book I read electronically subject to extensive controls that are not considered appropriate to records or books? It’s because they are subject to licenses that can’t be applied by the seller to the physical works. Why can those licences be imposed on digital works? Because the use of digital works is considered subject to copyright, whereas the use of physical works is not. Why is that? Because the act of instantiating the work for use has been described as “copying”, allowing the rules surrounding copyright to be used as a threat to back up arbitrary license terms controlling use.
When I buy a physical work, the act of selling it “exhausts” all the control over normal enjoyment of it that arises out of copyright and the entity who created it no longer has a say on how I enjoy it – they can’t demand I accept a license as a condition of use. But with a digital work, because each act of instantiation-for-use is called “copying” rather than some other name analogous with the physical world like “wrapping” or “inserting”, we’ve created a hook for the idea that a new act controlled by copyright law has taken place after the first sale of the work.
The control of the work is thus never considered exhausted and the copyright administrators are able to absolutely and indefinitely control use, including uses that save backups, uses that involve networks, uses that involve passing the work to a friend temporarily or to anyone permanently, uses that enrich society without endangering the author. All uses you’d naturally expect from something you had bought.
This control over those enjoying and using cultural works was neither precedented nor anticipated by legislators, so the basic law involved includes no attempts to balance the needs of society and of creators of works where digital works are concerned. Instead, the only limit on the controls imposed on users is the imagination of the businesses administering copyrights. The focus of that imagination is naturally the maximisation of income and control, even to the extent of creating scarcity artificially where it does not otherwise arise, so that the maximum number of control points exist for monetisation.
But even worse, the penalties the law provides for breaching those fanciful licenses are also unbalanced. They’re intended to punish people who unlawfully mass-manufacture, not those whose cultural enjoyment breaches some unreasonable-but-legal license. As a result they unjustly — but legally — apply overwhelmingly disproportionate punishments to ordinary citizens.
The licenses so devised are complex beyond the understanding of the untrained, they include arbitrary terms and restrictions, they are frequently and arbitrarily changed. All of these dimensions happen without any need to balance the needs of culture or citizens, since neither is a stakeholder for the copyright administrator. There’s no backlash because there’s little expectation of enforcement; all the same, automated enforcement is becoming increasingly common. When a market is controlled by unrestrained licensing rather than by statute that’s a clear DNA marker for malaise.
So where did we go wrong? We mistakenly allowed the technical term for moving bits between buffers to be assumed to be equivalent to the term used by authors and other makers for creating a new original work for sale. They simply aren’t the same act, and the laws that have accidentally bled from mass production into cultural enjoyment are simply not fit for that purpose – how could they be? When we said “copy”, we screwed up and it’s that error that really needs fixing.
[A revised version of this was posted to ComputerWorldUK on March 7, 2013]