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It's not whether it's David versus Goliath
- it's whether David and Goliath had a deal I first encountered Ainsworth in the form of his display window in Twickenham, which I photographed last July, because it looked fun, and strange. Star Warriors in Twickenham? How odd. Well, not really, because Twickenham is one of the centres of the British film and TV industry. But it seemed to me odd at the time. The point is, these are no cheap knock-offs, these are the real things, made by the guy who made the original things themselves. This "David and Goliath" vibe, which you constantly encounter in stories about IP quarrels, illustrates one problem with IP law, which is that a lot of people side with David against Goliath on principle, simply because David is David and Goliath is Goliath, and regardless of any other considerations of rightness or wrongness. That, I think, is the wrong way to think about such disputes. But the right way, surely is to see this as a dispute about a contract. The problem in this dispute is that there was no original contract, of the sort anybody wrote out, haggled about, and then signed. Presumably neither party had any idea how big the spin-off merchandising aspect of the Star Wars franchise was eventually going to become. At first, all they thought was happening was a bit of costume design. But now, George Lucas thinks he owns the designs he paid (very little) to have done, but the bloke who did them reckons he owns them. The Californian courts have already decided in George Lucas's favour, and my guess now is that, if I went into the details, I'd end up agreeing with them. The point being that although Lucas paid very little, he did pay. Insofar as considerations of contract do illuminate this matter, they suggest to me an original meeting of minds around the idea that Lucas owned these designs, and that Ainsworth later changed his mind when he realised how much money he could make. But,that's just as guess on my part. I don't know. But two things I do know. First, as so often with IP disputes,
this is indeed best thought of as a contract dispute. And second,
it is worst thought of as a David and Goliath battle. Often Goliath
is right and David is wrong. Ask any London West End store plagued
by shoplifters. London stores are often very big. Shoplifting is
done by tiny enterprises by comparison. Yet the London stores are
completely right about shoplifters and the shoplifters are completely
wrong to be shoplifters. Size has nothing to do with it. Daniel_k takes the law into his own hands Creative Labs has enraged customers by threatening a developer with legal action after he wrote drivers that allowed its products to run smoothly on Vista.It's a nice question. People buy the products, but the products don't work as advertised. So, rather than just waiting for ever for the company to mend them, someone steals into the factory at night and mends them himself. Or, did he just mend them? If so, then fair enough. But if indeed he did do something like creeping into the factory and mending them, doing no damage and tidying up carefully afterwards, then that too seems like a reasonable thing to have done. But, the company is distraught. People can't creep into our factory, just because we have defrauded them by selling them something which doesn't do what we said! We can't have people taking the law into their own hands! As a general point, I am entirely in favour of people "taking the law into their own hands". If it's okay for a judge or a policeman to do something to correct an injustice, then it should be okay for a civilian to do it. If it is not okay for a civilian to do it, then neither should it be okay for a judge or a policeman. I am on the side of Daniel_k and all those whom he has helped, and not just from the commonsense point of view, and I don't just think that Creative Labs is making an ass of itself from the merely PR point of view. I think that Daniel_k either is either right in law, or should be. If the law says only that he was stealing intellectual property, then I say that the law is also an ass. It reminds me of all those arguments that libertarians like me have about civilians defending themselves against criminals by shooting at them with guns, and thereby frightening them away, and perhaps in the process killing them. If the law forbids this, the law is likewise an ass. If you are a robber and somebody kills you, well, you shouldn't have been a robber. If Creative Labs objects to its intellectual property being stolen,
well, they should have made the thing work properly in the first
place and not lied about it on the box. As many have already said,
they should now be offering Daniel_k a job, not threatening him
with lawyers. At the very least they should be thanking him, and
publicising his solution to the problem they have created, until
such time as they can come up with anything better. This show will self-destruct in seven days
... Now, broadcasting is as easy as ever, aside from the slight problem that so many other organisations are now also doing it, and that there are now so many other distractions to divert people's attention away from the BBC. So, although the BBC gets mass audiences still, they aren't quite as mass as they used to be. But copying stuff and storing it forever, well, that's now a doddle. Everyone can now do that. Which creates both a huge opportunity and a huge problem for the BBC. The opportunity is that the BBC, as a "public service broadcaster", funded by the "license fee", i.e. a TV tax. This means that the BBC is able to just give its stuff away, and use its generosity as a political argument whenever it is suggested that taxing all of TV to pay for the BBC is wrong, what with it being a tax, and what with only the BBC getting the money. So, give its stuff away the BBC does, on a huge scale. The problem is that if the BBC gives everything away, forever, to anyone who wants it, both it and the participating artists will be spurning the lucrative income that is to be had from selling stuff on DVD or as paid internet downloads, to people who want to own it. What happens to the "digital rights", not just of the BBC but of the performers in BBC shows? (The same argument is at the root of all the strike turmoil in Hollywood just now. First it was the writers. Now it's the actors.) The BBC's answer, for now, is DRM, "digital rights management", in other words restricting the copiability of its programmes. If you go to the BBC iPlayer site, you find that you can watch some things (but not all things - not movies for instance) whenever you want, on your computer, but not for as long as you want. You have thirty days to start watching, and then seven more days to finish watching. After that, the file self-destructs. Self-destructing files offends many, including me. It's not in the nature of files to self-destruct. Files stick around forever, or they should. The music industry has simply been told by its customers to dump DRM. But the BBC doesn't have "customers", not exactly. What the BBC has is voters, and most voters will be satisfied
with this iPlayer arrangement, as a more than decent improvement
on the BBC's regular service. We fanatics who want files that don't
self-destruct are poltiically insignificant in number and we can
just record stuff onto a TV hard disc. Or buy the DVD. Or try to
hack
iPlayer. That will keeps us busy and happy. As always with the
BBC it's a canny compromise between economics and politics. One word - many meanings Some of the "fake" handbags you read about are fake only in the most arcane, almost metaphysical, sense. They are made in an identical manner to the "real" handbags supposedly being "copied", made with identical materials and adorned with identical labels, by the same people with the same machines. The are only fake in the sense of not actually having been ordered by the organisation referred to by the label. Otherwise they are genuine. The organisation indicated by the label has been swindled. They did a deal with the maker of the handbags saying that only the handbags they ordered would be made, and saying that no further identical handbags would be sold through the back door, as the saying now goes. The handbag makers broke that deal. This is certainly breach of contract, but it hardly makes sense to call it faking. Other fakes and bad copies of well made handbags, but again, to call these "fake" is rather odd. They are also real handbags, just not quite as nice. Often the labels are actually different. Has anyone been cheated here? It's hard to say for sure. It's a grey area. Then there are fake photos. Here it is news readers who get swindled, but again, only a bit. So the train never actually drove past the endangered Tibetan wildlife? He photoshopped it. Naughty fellow. And there's fake electrical stuff which is sometimes better than the original. And then there are fake medicines and fake baby milk, and suddenly we are in wholly new territory. The pills look like pills, indeed they are pills. But inside, where it matters, they are indeed fake. It looks like milk, or blood plasma, or a cancer pill, but it isn't. Not only are medicine makers being swindled. So are hospitals. So are their patients, some of whom are being swindled to death. What's going on here is that the handbag people, whose mere designs have been "stolen" by dodgy manufacturers, can't or can't be bothered to explain exactly what is wrong with what they suffer, and exactly who should do what about it all. Instead, they point at the poisonous-by-omission medicines, say that "fakes" are evil (as fake medicines certainly are), and say that therefore the world's police forces should drop everything else and throw the kitchen sink at cheating manufacturers. You think I'm kidding? There was a recent British TV show called The Fake Trade where the word "fake" meant about five entirely different things in the space of forty minutes. It culminated in a poison pill chasing policeman making a speech to a bunch of handbag sellers about the evils of fakery. Poison pills! Handbags! Same thing! That's what he said. Not true, but everyone clapped, including the TV presenter. But breach of contract should not be talked about as if it was
murder. You can't win a difficult argument by merely repeating what
you said to win a different and far easier argument.
The menace of the not-for-profit IP violators But there is a more basic way in which people doing important things without being paid is challenging the kinds of economic activity that the twentieth century made us used to. I talking about ... talking. It hardly makes sense to call a lot of the comments on blogs and in internet chatrooms as publication. It's just chat. But all this chat is transforming the economy, by destroying the advertising industry as the twentieth century knew it. Suddenly, all those separate enclaves of chat about the products of the capitalist economy, hitherto of no great significance when contradicted by big advertising campaigns, have been joined together into a vast world-wide hubbub, against which or in addition to which traditional advertising is either powerless or superfluous. I recently bought an Eee PC, which is a very small and very cheap laptop computer. Before and since buying this I have been enthusing about it on the internet. I have seen no advertisements for this product, yet it is already a huge world-wide hit, basically because people like me have been enthusing about it. Very well, but what does all that have to do with intellectual property? A lot. Here is one way in particular. If it is true that advertising is being replaced by a vast, dispersed, amateur conversation - if the enthusiasm for a product is now formed less and less by paid professionals and more and more by individuals who just say that they love it, then in some cases, when it is convenient, those individuals will go beyond being mere advertisers, and will become distributors, again, for the sheer love of it. I'm never going to give you an Eee PC, until such time as others are also giving them away, but I can acquire intellectual property and give that to you. I can copy CDs and give or post them to you, or make CDs into computer files and email them to you. EU Parliament demands action on criminal IP penalties reads like a very fierce headline. But the action in question turns out to involve only the professional distributors of violated IP rights, the ones who are making a living from this. If I steal someone else's Eee PC, or if you steal mine having heard my high opinion of it, a defence saying "I stole it because I love it - I'm not making any money" would be no defence at all. Seriously defending IP rights will require similar ruthlessness towards the amateurs. As time goes by, that will become ever more true. Whether you think that such ruthlessness is either desirable or possible is another argument. Please feel free to chat about (i.e distribute for free) the ideas
in this piece, many of which I myself obtained from others. Turning ISPs into IP policemen People who illegally download films and music will be cut off from the internet under new legislative proposals to be unveiled next week.But how will the ISPs know who is accessing pirated material? With extreme difficulty and at great expense in time and treasure, says Alex Singleton, writing in Samizdata, and with appropriately Samizdatarian belligerence: If the government introduces this new legislation, it will not be successful. Geeks will introduce encryption or other technologies that hide what is being transmitted. If the proposed law has any success at all, it will make the lives of ISPs absolute hell, massively raise the cost of broadband connections and create huge compliance departments to snoop on users' internet use. Maybe ISPs will just end up blocking all peer-to-peer traffic, killing off Skype in the UK and destroying the BBC's broadband TV service.The trouble is that the politicians in Britain are in just the mood to attempt something like this. The Labour Government is entering that state of despairing malevolence that comes with impending political death, during which it will blame the world rather than itself for all its misfortunes and for the fact that everybody hates it. In such a state of mind, it is liable to lash out almost blindly, with ... well, with laws just like this. And as for the Conservative opposition, their pitch is that they will merely do the same kind of thing better, i.e. do things like this more efficiently, rather than refrain from doing them at all. So even if people like Alex Singleton three-quarters convince any politicians who might be paying attention that such laws as this will indeed cause havoc, that still might not mean very much. Large swathes of the supposedly private sector in Britain have had quasi-governmental duties imposed upon them in recent years. Much of the form filling that you now have to do in British banks, for instance, concerns laws which the banks must obey and must impose upon you but which they are forbidden to tell you about. This makes them disliked, and more inefficient, and that makes them want to put their prices up, which they do, sneakily. Which makes them disliked all the more. Once ISPs become as unpopular as the banks are now, further demands
will be made to regulate them even more. The British economy is
already faltering.
This could make things that much worse. Why isn't the Butterfly Book just given away? Most schemes of national improvement seem to me exercises in taking refuge from difficulties in impossibilities. Politicians should be more honest and tell the truth! People should have better manners! People should stop expecting the government to do everything! Voters should vote more intelligently! Etc. But improving the British average national quality of the teaching of things like reading, writing and arithmetic is relatively easy, compared to most other schemes of British national salvation that I know of. The demand for such a thing is very strong. Most parents desperately want their children to do well at the educational basics. All that is necessary is to identify the teaching systems that work best, and publicise them in all directions. About two years ago, I went on a course to learn how to teach reading, using "synthetic phonics". I paid about two hundred quid, but came away little the wiser. It was all so complicated, and in the end I just put it all to one side and forgot about it. More recently, however, I have become acquainted with something called the Butterfly Book. Its author, Irina Tyk, is the designated literacy expert for the Supplementary Schools project which is run by the think tank Civitas. I help out at one of these schools for one evening a week, and I have been using the Butterfly Book. It works. Not long ago, I heard Irina Tyk talk about how to teach reading, at a Supplementary Schools training morning. That also made excellent sense, and made me a better teacher straight away. But, the Butterfly Book is ... a book. If you want it you have to pay ten pounds or whatever it is, and then get it through the post. Could it not simply be distributed as a word processed file, on the internet? Irina Tyk does not believe in having lots of pictures to "help" children to read, because seeing an elaborately beautiful picture in full colour of a cat next to some squiggles and guessing that the squiggles probably say "cat" is not actually reading at all. So, the Butterfly Book is almost nothing but words, words, words, in plain black on plain white, and could be very quickly downloaded. I wish I'd thought to ask Irina Tyk about this, when I met her at that training morning. Perhaps she believes that parents won't value what they don't pay for. Perhaps she believes she has earned some money. (She certainly has.) Perhaps she thinks it is her Intellectual Property, and anybody getting it for free would just be wrong. Whatever, I would like to know. Someone will do something like this very soon, if they've not
done it already, for the glory and for the warm feeling that you
get when you do the world a huge favour. (Oh, and for the greatly
increased books sales.) The age of open source everything else now
begins The competition policy implications of this story are clear. If even the mighty Microsoft is beatable in the competitive market place, then clearly competition is a permanent fact, for everybody. There are no monopolists, other than those whose monopoly is enforced by law. So why have elaborate competition laws to enforce that which is present anyway? I and my colleagues at the CNE Competition Blog have made this and similar points about Microsoft, and about the arbitrary manner in which the EU has attacked it, with superfluous laws and savage fines, again and again. The EU is sending out its message loud and clear. The EU is not a place in which you want to be too successful. But the victory that Linux is even now winning over Microsoft will also have huge intellectual property implications. For years, open source software enthusiasts have been telling each other that if open source works for software, why not for other intellectual-stroke-commercial enterprises? But the wider world took no notice, because as far as the wider world was concerned, Linux was strictly for geeks. But now that the Linux is winning the battle of the desktops, the fact that it does indeed work and work triumphantly well is going to go from something obscure and arcane to something universally understood and talked about. This process is already underway. Only the precise timing remains to be seen. With the Linux victory, that question about open source for other
things besides software is going to leap to prominence. Any enterprise
where the intellectual component is high and the manufacturing costs
are relatively low, and therefore where wmanufacture can be widely
dispersed with much extra expense or bother, will be considered
candidates for the open source approach. My tip? Medicinal drugs.
(See this
for more about those equations.) Copyright law cannot reimpose secrecy But in the age of the internet, the boundary between the private and the public is impossible to police, and power goes not to those who choose with extreme cunning what to publish and what not to publish, but to those who have a consistent story to tell, to those who ensure a good match between their publications and their "private" conduct. In a world where your most private moments can now turn up on YouTube, if what is thus revealed does not square with the message or image of yourself that you are trying to project, then you become a global joke. You may become world famous for the proverbial fifteen minutes, or if you already are world famous you may become even more world famous, but your power, your respect, your clout, will slip through your fingers like sand. Oh, you and your lawyers can have it removed from YouTube. But all that you achieve with that is to signal to the whole world that you don't want the whole world to see it. Before you did remove it, you can be sure that someone somewhere will have downloaded it, on the off chance that you would oblige them by trying to suppress it, so that they can then show it to the world whose appetite you have fed with your bungled suppression attempt. This is why I do not fear cults like the Church of Scientology, and why I pity rather than hate star Scientology enthusiast Tom Cruise. Scientologists like Cruise depend for their public esteem on secrecy, on concealing from the world both the utter daftness of their beliefs and the bizarre machinations which they use to gain support for these beliefs. But anyone who cares can now learn these things with a few mouse clicks. Old style publications just become another part of the new transparency. Scientologists like Cruise now try vainly to use copyright law
to control the information flow about them. But the law cannot prevent
the copying of that which can, in fact, be copied. The world has
changed, and copyright law cannot undo this change. Compelling the ISPs to self-regulate voluntarily It really is amazing that a man who remained a member of the Communist Party until the late nineteen seventies was able to move so smoothly into government. And now the former communist is busy defending property rights, of the intellectual sort. The methods he is using involve the intimidation of some tradesmen, even as he seeks to uphold the rights of other tradesmen, so a small part of his cold communist soul should be content. Using a characteristic trick of modern government, he is demanding that the internet service providers "agree" to "voluntarily" crack down on those who use their services to share files illegally. Or else. If they don't do that, then Lord Triesman will get his Prime Minister to pass a law about it. This procedure results in a kind of law within the law. "Do what The Man says" becomes The Law, because if you don't he'll set the previous, clumsier, parliamentary version of The Law on you. Politics was ever thus. Partly this trick reflects the scarcity of Parliamentary time. Like all governments, our current one wants to pass more laws than it has time to pass. But the use of this device in this particular matter probably also reflects the confusion felt by the politicians about what to do with intellectual property arguments. How much easier it would be for them if, in the matter of this file-sharing argument, all the businessmen concerned could just settle their disagreements amongst themselves, without the politicians having to decide. Passing a proper, old fashioned law would involve the politicians understanding what they were doing, or at least pretending to, and might mean them having to take the blame for subsequent cock-ups or injustices. What, for instance, if their new law created some new kind of information leakage opportunity for criminals, in the manner of this disaster? After all, compelling people to spy on each other creates vast databases of sensitive information. What if bad people then got hold of this information, and it could be blamed on the politicians? No. Far better to make the business people sort it all out, and then blame them if it goes wrong. By the way, opposition leader David Cameron agrees with Lord Triesman.
He has already said that if it does come to making a new law, his
party will vote for it too. Him saying that now means that he too
wants the tradesmen to get it sorted, now. Those are our bank details! Is lost confidential data a matter of intellectual property? Well, in the sense that those discs, or any copies that anyone makes of them, will be worth big, big money, then it certainly is. The general opinion seems to be that these discs will probably turn up somewhere reasonably worry free, and that it is unlikely that any crooks will get their hands on this data. But if they don't, and if they do ... What makes this so scary for the government is both the scale of the cock-up, and the all too understandable nature of it to regular voters. I watched some TV news while I was writing this piece, and some opposition spokesman has just said that the British Government has already spent the equivalent of thirty Millenium Domes on the Northern Rock bail out, but that's just, you know, government spending. This is not just "our money" as in taxpayers' money or government money. This is our money! These are our bank details that might be being stolen, our savings that may be plundered. The addresses of every child in the country are now, potentially, a commodity that may be traded between crooks. This is like an American politician doing for real to an apple pie what hitherto had only happened in that movie. Intellectual property law, insofar as it is anything at all simple and summarisable in one line, is the result of streamlining contract law. I write a book, and let you read it, on the understanding that you don't copy it, pass it on, or whatever, until such time as we've done a deal. The law codifies the decencies that reasonable people would assume in such circumstances, or tries to, so that we don't have to do it every time ourselves. But when it's the Government simply demanding information from you, where's the contract? Where, in the public sector, are the property rights? Whatever rights you may or may not have are essentially up for grabs, a matter of politics. British finance minister Alastair Darling has said that any who
lose financially because of this cock-up will be compensated. He
may come to regret that. Fogeys There's been talk for a long time about classical music being sold on the internet as downloads, but we classical types don't really care for that. We prefer the things themselves. We tend to be more sedentary in our listening habits than pop fans, with their little plastic boxes for listening to on buses and in trains. Above all, most of us are quite old. We are the CD generation. We love them. CDs flood in through the Gramex doors in an ever greater torrent, as we classical fans die and our CDs have to be dispensed with, and about a week ago they had so much stock both out for sale and waiting in the basement that they decided to slash all their marked prices by an amazing fifty per cent. So, when I dropped in, and checked that the sign about this truly meant what it said, what was I supposed to do? Ignore all these spectacular bargains? I spent seventy five quid and got over thirty CDs. Legal downloads are surely not that cheap. Life is not so good for the even older fogey who runs Universal, and who has just been given a right going over by Wired, to general derision. Oh he's still rich and powerful. But whereas collapsing CD prices keep me happily faithful to CDs, his CD margins have been cruelly eroded from the grand old days of the nineties, and he is as obliged to try to make sense of the new age as I am able to forget about it. The future is everything ever composed and recorded coming out of the air for a few quid a year, with the big record companies going the way of the buggy whip industry, and he hates this future. So – to end with another entertaining link – does this old rock and roller: "I open a store and say 'Come on in and pay whatever you want.' Are you on f---ing crack? Do you really believe that's a business model that works?"Actually yes, because once you've set up a "store" on the internet, it pretty much runs itself, and because people will pay fortunes to watch musicians in action for real, even as they insist on hearing their recordings for free. back to top permalink feedback Fake Bic ballpoint pens or merely unauthorised
Bic ballpoint pens? But the story is frustrating because of what it does not say. What the story does not say is whether these "fake" Bic ballpoint pens actually work as well as real Bic ballpoint pens, even in an identical manner to Bic ballpoint pens, perhaps because made by a Chinese company that also makes real Bic ballpoint pens. Are they merely fake Bic ballpoin pens in the sense that Bic does not approve of them being called Bic ballpoint pens, or are they fake Bic ballpoint pens in that they are not the same as Bic ballpoint pens, and are in fact worse? Do they, perhaps, break more easily, leak ink more often, run out of ink more quickly, use inferior and smudgier ink? Do their clips break off when you put try to attach them to your jacket pocket, more so than regular Bic ballpoint pens do? Are they, in short, good copies, or bad copies? Are they actually identical copies, or do they merely look identical to the untrained eye? Or, on the contrary, do the "fake" Bic ballpoint pens actually, what with being made in China instead of in Africa, perhaps work better than the African ones? After all, one of the justifications for having laws against fakery is to protect the public from inferior copies. But if the copies are not actually inferior, and are maybe even superior, that particular argument is weakened. I suspect that these fake Bic ballpoint pen are in all respects indistinguishable from the real thing, and that this was part of why the Ugandan court found in favour of the "fakes" in this particular case. But that's only my guess. I ought not to have to guess. Don't get me wrong. Calling a ballpoint pen a Bic which the people at Bic never asked for, laid eyes on or had anything to do with, is still fraud. You are still implying that Bic stands by these products when actually Bic does not. But making fake Bic ballpoint pens that work far less well is a much dirtier trick to play on the people who end up using them. Whether Bic as a whole suffered very much from these fakes, I don't know, but the local Uganda firm which had signed a deal with Bic to make all the Bic ballpoint pens sold in Uganda definitely has a lot to lose. If they can't keep out the Chinese Bics, they'll go bust. Might this perhaps be the dark side of the Chinese
Model
in action? Because, another explanation for the failure of the local
Bic-maker to win this case might involve speculation to the effect
that powerful Chinese interests wanted them to lose, and that what
China now wants in Africa, it is more and more tending to get. Lawrence Lessig on the copyright extremisms Now you might suspect Lessig, what with him being the author of a book called Free Culture (its cover is prominently displayed at the top of his blog) of being one of those people whose attitude to copyright is: to hell with it, hurrah for the pirates. Not a bit of it. For the benefit of those who do not care to sit through internet videos, here is my transcription of the kernel of his argument, which I am absolutely certain he will not object to me creating for you here. Use does not get any fairer than this: It's important to emphasise that this is not is what we call "piracy". I'm not talking about nor justifying people taking other people's content wholesale, and distributing it without the permission of the copyright owner. I'm talking about people taking and recreating, using other people's content, using digital technologies to say things differently.And then he provides examples. I particularly like the one of Jesus singing "I Will Survive". (He doesn't.) Yes the original pop track by Gloria Gaynor is copied. But the real fun of it is the completely new video that has been attached to it. You can also feast your eyes on President Bush and Tony Blair singing a Lionel Richie love duet. The law has not greeted this ... with very much common sense. Instead the architecture of copyright law and the architectures of digital technologies as they interact have produced the presumption that these activities are illegal. ...On one side are businesses, for instance, building devices that will automatically remove anything "copied" from YouTube, applying an absurdly restrictive interpretation of copyright, which Lessig compares to the argument that airplanes can't fly over anyone's land because that's trespass. And on the other side is a new generation growing up who think that all notions of copyright are nonsense, and just copying stuff at will. Copyright abolitionists, who reject everything that copyright is supposed to do, and believe that the law is an ass. Extremism on one side begets extremism on the other. Watch, as we bloggers are fond of saying, the whole thing. It
lasts just under twenty minutes. Patenting a patenting method The thing is, we writers must be encouraged. I'm not an extremist. One must strike a balance between the need to reward comic inventiveness in the area of IP writing, while at the same time recognising the right of others, in due course, to exploit ideas. So, how about a twenty five year period during which I am the only person allowed to crack this joke in writing? No, make it fifty years. Did I say fifty? I meant seventy. Fair's fair, let's make it the date of my death plus seventy years. You want less than that? So, what you're saying is you want jokes to stop? You want Western Civilisation to come to a grinding halt? Truly, the barbarians are at the gates. These fancies were stimulated by this report that IBM wants to patent the idea of licensing patents. IBM says it's trying to patent a particular method for licensing patents: "I think this is absolutely a business method patent," said Barbara Fiacco, a patent lawyer with Foley Hoag LLP.Later in the same AP report it says: Specifically, IBM - which collects more than US$1 billion in patent royalties every year - describes a new process for licensing patents. Instead of smaller companies licensing technologies from patent holders like IBM in a plodding, one-by-one manner, IBM envisions a more dynamic system with "floating privileges," in which patents could be licensed quickly, as needed.I don't like this. Surely IBM is selling not fire insurance, but the absence of any fires that their own lawyers might start if you don't buy their protection. And a little further googling (this time I was looking for words like "protection racket") told me that I'm not the only one who sees it this way. It may all be perfectly legal, even rather helpful, so no wonder IBM doesn't want anyone else copying the notion. But you can't help feeling that IBM are selling a short cut through a legal jungle that ought not to be nearly so big and scary. All this despite IBM saying a
year ago that they were going to attempt less business method
patenting. Recently
they abandoned an attempt to patent some new tweak on outsourcing.
Yet here they are trying something similar, again. Printing and the survival and accumulation
of ideas I've been reading a book about Alexander the Great, and it's all that "the sources" – there seem to have been about four, most of them writing about Alexander hundreds of years later – can tell us which country he was in at any particular time. As to what exactly he did there, most of the time it's anybody's guess. And so it continued for many centuries more. I also recently read Bill Bryson's book about Shakespeare, and he entirely convinces me that far from being frustrated by us knowing so little about, say, where Shakespeare lived every day of his life and under what exact circumstances he wrote his plays, we should rather be profoundly grateful that we have the plays themselves in such abundance. (We don't have all of them.) Several years after Shakespeare had died, and just when printing was becoming a technology available to more than a tiny few officially sanctioned creators, Shakespeare's friends clubbed together to produce a somewhat messy and downmarket printed edition of his plays (which at the time were more what we would call scripts). That was sufficient. The plays survived. But the difference between immortality and near oblivion for Shakespeare was frighteningly small. Until printing got into its stride, ideas and creations had a natural tendency, just like their creators, to die. It took a long time to devise paper and pens which could produce documents capable of outlasting the human lifespan, and for as long as paper - and before that parchment - was like this, it was all they could do to keep the existing stock of ideas in existence. Printing changed all that. (Read this product of the printing press to learn more.) Suddenly, a good idea, once printed, was guaranteed to last. Ideas could start to accumulate. Scientific progress, indeed intellectual progress generally, became possible. It also became possible for many people to share ideas and creations, and it also became possible to keep track with approximate accuracy who had thought of them and first created them, at the very least who had first published them. Thus, it made sense to reward people for having clever ideas, because such ideas could be disseminated quickly and easily and it became worth rewarding them. It made sense to actually forbid people to copy ideas merely because they could, so that the originators of ideas could have the first crack at exploiting them, thereby encouraging people to think of more ideas. In short, although this may be a blog, and as such not dependent
upon the printing press, without printing nobody could have created
all the technology that made this blog possible. Worse, without
printing, we who write here about Intellectual Property would have
nothing to write about. I agree with Bill Gates about an all-you-can-eat
music service But I am now hearing, from all kinds of directions, that the way to buy music now is for it to be like internet access or cold running water or commuter train travel is now. They should charge not by the song, but by the month. Distributing music is now easy, and it doesn't feel right to pay for it just as if they were still having to drag the songs around in lorries. I want a music service that costs me far less than what I now spend on CDs, and gives me, and here I want to get to the heart of the matter, every recording of music ever made, plus a huge apparatus of musical guidance (complete with links to blogs and to other music websites), to enable me to explore all the music ever recorded. I'd pay five quid a month for that, or the equivalent in advertising attention (to such things as live gig adverts). In other words, what Gates said: Gates said that music labels should push harder to sell all-you-can-eat subscriptions that let users download much more music that they keep as long as they continue paying.There may well be a sense in which music wants to be free, but I still want what I now get from CD booklets, namely guidance through the music jungle, with timings, comment, related recommendations, and I want much more. I want a foolproof system for repeat listening or storing whatever I want on my hard drive, and on any other gadgets I transfer it to. For all that, I will pay. As will millions of others, even billions of others, which is why this will surely happen. However, and not for the first time, I find myself wanting to combine the issue of IP with that of competition. When it comes to music, I don't only want competition, between musicians, and between the critics and commentators who I want telling me about it; I also want rampant collusion. Gates talks of music labels, plural. Fine. Let there be as many labels as anyone wants to start. But when I pay by the month for music, I want it all. More along similar lines, at greater and more informed length,
here.
And here is the news I didn't have when I began writing this, that
it may now all be about
to happen. "You wouldn't steal a baby" Anyway, this is what the voice-over of the spoof advert says, for it deserves to be immortalised in all media, not just YouTubery: "You wouldn't steal a handbag. You wouldn't steal a car. You wouldn't steal a baby. You wouldn't shoot a policeman. And then steal his helmet. You wouldn't go to the toilet in his helmet. And then, send it to the policeman's grieving widow. And then steal it again. Downloading films is stealing. If you do it you will face the consequences."At which point we observe an FBI person shooting a young girl. Her head hits the keyboard, followed by blood from her head. Says one of the IT nerds who is watching all this in the cinema: "These anti-piracy ads are getting really mean."Meanwhile, I have been happily downloading televised movies (and also Rugby World Cup games) onto my Panasonic hard disc TV recording machine, and then copying them over onto DVDs with the adverts edited out, after which I then scrub them from my hard disc machine. And I am not the only one doing this. High street shops are now selling blank DVDs in crates of a hundred, for just under thirty quid. This didn't happen two years ago. Is this version of downloading illegal also? (Am I a baby stealer?) I also note that my local Blockbuster has been slashing the cost of DVD renting, and has also started selling music CDs. My surmise being that, because musical tastes are more varied, and because copying music for free from the radio or the telly is harder, because you never know when a particular favourite track is due to be played, music CD sales are holding up better, or perhaps I should say collapsing less totally, than DVD sales. I still buy cheap music CDs but I have entirely stopped buying DVDs. Another Blockbuster related straw in the IP wind is that Blockbuster,
here in London as well as in America, has made up its mind about
the high
definition standard battle that I write about here sometimes.
Blu-Ray discs are now available to rent from Blockbuster, so Blu-Ray
is, they must reckon, the winner. For a time, movies may continue
to sell well on high def DVDs, but it surely won't be long before
people will be copying them from the TV also. Legal correctness versus bad vibes Bloke blows gasket. His name is Chris Knight, and we can all read about this because he was able to blog about it. But now, Knight having prodded them, YouTube have decided that there was no copyright violation, and have restored the second short movie clip. I first heard about all this from my friend the Media Influencer, but I got to the latest twist via The Inquirer. On the face of it, this is an argument about the precise state of the law. (As regular readers of this blog will not need to be told, copyright law is very complicated, in the USA, where all this happened, as everywhere else.) On the one hand, surely "fair use" means that a fellow can make a film quoting a report about a film which he has himself made. On the other hand, and you can read some fascinating comments on Knight's original posting to this exact effect, when you post stuff on YouTube you surrender copyright, but that doesn't at all entitle you to violate someone else's copyright, which they have not surrendered. And, on the face of it, YouTube have made a further purely legal judgement to the effect that copyright was not violated by Chris Knight's second posting. But I think this is at least as much a story about what makes sense, sense as in common sense, rather than about what is merely legally correct. YouTube is talking law, but it is at least as concerned about avoiding bad vibes. And to avoid those same bad vibes, Viacom will surely now let matters lie. "Bad vibes" is not a phrase that would cut much ice in a court of law, but you know exactly what I mean. Good will, which is the thing that those bad vibes eat away at, counts for a lot in today's interconnected world, in which one person's bad experience can be read about by thousands or even millions of interested third parties, like me and hopefully also like you, all over the planet. And what begins as avoiding bad vibes ends as new kinds of law,
because what becomes conventional soon becomes what everyone expects,
and believes they have agreed to. And what people believe they've
agreed to is often what legal disputes are all about. Legal ownership versus actual ownership So, I've now lived a classic corporate public affairs nightmare: announcing a lawsuit against the American Red Cross. Would I have chosen this exercise as a reputation-building opportunity for Johnson & Johnson? No, of course not.The story is that J&J are suing the American Red Cross for using the Red Cross logo in ways that J&J believes it has a legal right to object to. J&J already uses red crosses for commercial purposes, and ... …as much as we might respect the American Red Cross, if we didn't act we could open the floodgates to all infringers of our trademark and could do nothing about it. ...Adriana's angle on all this is that it's good that enterprises like J&J no longer depend totally on journalists to put their point of view concerning such stories as this one, and with that I wholly agree. However, my equal first reaction alongside that one was to feel that J&J are indeed being more than somewhat unreasonable about this. I recall a small enterprise which the late Chris R. Tame, better known as the then Director of the Libertarian Alliance, used to run, called the Adam Smith Club. About once a year the Adam Smith Club would hold an event, thereby causing the massively more active and massively better known Adam Smith Institute to be deluged with annoying phone calls. Not surprisingly, the Adam Smith Institute wanted the Adam Smith Club to disappear off the face of the earth. But Chris Tame argued that since the Adam Smith Club predated the Adam Smith Institute, it and he had no obligation to stop using the Adam Smith name. Despite being Chris Tame's general gofer at the time, and his enthusiastic supporter when it came to the Libertarian Alliance, I wholly agreed with the Adam Smith Institute, and added my voice to theirs in urging Chris to cease and desist with the annoyance that was the Adam Smith Club. Maybe, legally, Chris had a case. In reality, he was just making a nuisance for an ideological ally, and to his credit, and much to the grateful delight of the Institute, Chris did eventually agree to close the Adam Smith Club. Legally, he and it owned the name, fair and square. In reality, not. This J&J versus the Red Cross spat has, to me, the same feel about
it. Yes, J&J may well, legally speaking, have a claim on the Red
Cross logo. But the American Red Cross is far more directly associated
with said logo, and whatever the legal angles, if I were J&J I'd
stop trying to own this logo in any way. And I'd use blogging to
explain that decision, and to draw public attention to any new J&J
logo or logos that I might then deploy instead of red crosses. Will DVDs go the way of CDs and become menus? "Our album is the menu," he explained. "The concert is the meal."And as the menus nosedive towards being given away, the cost of those meals, for the best known and best loved acts, is rocketing skywards. You can buy all of Madonna's recorded output for less than the price of one live Madonna ticket. Why is this happening? Search me. I'm perfectly happy with the recordings, and have never been other than deeply disappointed on those few occasions when I have been enticed to a live pop concert. I'm also often disappointed by live classical concerts too, considering the price that they often involve. Is the same thing as is already happening to recorded music destined to happen also with movies, and with TV shows? I have recently acquired a number of struggling actor friends, thanks to a particularly good friend having recently herself become one of these unfortunates. Suddenly, I find myself wondering: What is to become of all my new friends? What sort of performing will they do, assuming any of them manage to do any actual performing at all? At present they all yearn to do TV, or better yet, movies! But will movies and TV soon become, economically speaking, mere calling cards for live theatrical entertainments? As DVDs plummet in price (and hence also in excitement level), if only because old geezers like me are now manufacturing DVDs for free from the telly, will the real excitement soon consist of seeing these electronic shows recreated in theatres, or in the case of the more spectacular sorts of movies, in football stadiums? And is that where the big performing money will soon be made? Some straws that I see in the London air around me do suggest that the wind may blowing in that direction. It used to be that shows only went from the theatre to the cinema. But now, the traffic is in both directions. I first noticed this trend when I encountered an advert for When Harry Met Sally, but not for the original cinema version starring Meg Ryan, but in a London stage re-enactment of it starring Alyson Hannigan. (Later it was Molly Ringwald!) Now London theatreland is full of shows that first found fame (Fame itself being a good example) in the cinema. Not that any of this means that intellectual property law will
cease looming large in show business. It's just that the biggest
fights will be about different sorts of intellectual property. Open source design - why it now fails but
how it might work in the future Why does the Open Source way of doing things work so well? When it does, I mean. The essence of the answer is that although Open Source software guys "give it away", they also keep it! Open Sourcers don't just create software innovations at random. They create the innovations that they themselves need, for themselves, for their customers, for their employers. Giving it away doesn't prevent them using what they've created, and costs them little. By donating their own software insight or fixes or elaborations to the Open Source world, they create goodwill and prestige for themselves in a way that enables them to build strong and useful relationships in the Open Source world, and which yields a huge further harvest of Open Source software assistance, innovations, ideas, suggestions, tips, and source code. If that sounds rather academic, well, that's where the Open Source way of doing things came from. Compare and contrast, as they say in exam papers, the exuberantly successful not to say Microsoft-menacing Open Source software world with other Open Source design efforts. There is, for instance, an attempt in hand to open source design an environmentally correct car. Trouble is, if you contribute bits to this design, what's in it for you? Political kudos, and, as Private Eye would say: er, that's it. You don't yourself get to make lavish use of your clever little tweak to the usual way that carburettors are made. The use of the design will be entirely centralised, into the hands of whoever makes the car. In practice, the best way to contribute towards the greening of cars is to buy a green car, off a big bad, IP guzzling corporation, which invests the necessary billions in the project, and gets all those good green vibes in exchange. And which doesn't want any other big bad corporation, or Chinese knock-off shop, stealing any of their design. About a decade ago I had the thought that what might really change
things would be if those big bad corporations started selling three
dimensional versions of desktop computer printers. I imagined,
and still do imagine, this contrivance looking something like a
microwave oven. It would thrash out genuinely useful widgets, gizmos,
bits and bobs, the way we can all thrash out pretty documents on
our desks now. That would change the rules. That would introduce
into manufacturing that element of radical decentralisation that
makes Open Source software such a force in the world. That would
make designing something for yourself to use, and giving away the
design, make sense, the way it doesn't make sense now. So I was
greatly chuffed to find that on the Wiki page that deals with open
design, they also feature, prominently, a picture of a prototype
3D printer. How intellectual property law hurts the pros
and leaves the field that little bit more free for the amateurs |
