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12. 2.2008

Has Boston University Left Its Safe Harbor and Become Liable for Students' Piracy?

Defenders of the most egregious, blatant forms of online copyright piracy often suffer from what could be called Wile-E.-Coyote syndrome: They can become so fixated on throttling the roadrunner of copyright protection that they fail to notice that they have just run off a cliff and begun plunging downward.

For example, a federal judge has reportedly held that Boston University (BU) is such an incompetent internet-access provider that it cannot disclose the identities of allegedly infringing users of its network. In London-Sire Records, Inc. v. Does 1-4, Judge Gertner's recent order granted BU's "Motion to Quash" because "[BU] has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty."

Continue reading Has Boston University Left Its Safe Harbor and Become Liable for Students' Piracy? . . .

posted by Thomas Sydnor @ 5:11 PM | Academia , Free Culture Movement , Internet: P2P, Search Engines... , Universities

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11.21.2008

TechDirt's Backfiring Defense of the Thomas Decision--and the "Effective Freedom" of Totalitarian Terror (Part II).

Having dealt with Mr. Masnick's self-immolating attack on my analysis of Thomas, I must now even more emphatically reject Mr. Masnick's absurd claim that he "proved" that my paper on Free Culture mischaracterized the views that Professor Lawrence Lessig expressed in Code, a deplorable book advocating government control of the Internet and lawsuits against programmers. Frankly, mischaracterizing Lessig is pointless: quoting him suffices. Nevertheless, Mr. Masnick claimed, "The worst was when a variety of others pointed out Sydnor's out of context comments [sic] and put them back into context--and Sydnor still stood by the paper, refusing to admit he took a single comment out of content."

Nonsense: I stand by my paper because Mr. Masnick and "others" failed to quibble successfully even about details wholly tangential to its main argument. As Mr. Masnick's post indicates, his quibbles claimed that I had unfairly portrayed Lessig as a "communist sympathizer." But my paper said:

To be clear, I do not think that Lessig, Fisher, or other Free-Culture-Movement academics and interest groups are literally 'communists' or 'socialists....' But they do still display the flaws that made communists and socialists dangerous to themselves and others: Inherent distrust of and contempt for the utility of bilateral private exchange conjoined with boundless, unshakeable faith in the potential wisdom, foresight, and benevolence of vast and coercive governmental power.

Continue reading TechDirt's Backfiring Defense of the Thomas Decision--and the "Effective Freedom" of Totalitarian Terror (Part II). . . .

posted by Thomas Sydnor @ 11:10 AM | Academia , Economics, Game Theory & Public Choice , Enforcement & Remedies , Free Culture Movement , Internet: P2P, Search Engines... , Liberty and IP

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03.25.2008

Lessig's (Government) FOSS Market

IPcentral's Tom Sydnor reviewed a recent presentation by Professor Lawrence Lessig-

Lessig’s presentation was edifying. In his 1999 book Code, Lessig’s doomsaying ire—while broadly distributed—focused in particular upon commercial providers of online services. Lessig warned that these service providers would turn the Net into a “panopticon,” (a prison of pervasive surveillance), unless we embraced “the idea of placing the design of … the Internet into the hands of government.”

Professor Lessig is not a self-proclaimed free market Libertarian, and being a moderate one myself, I don't find fault in his policy framework that markets rely on regulatory bases. However, my view is that after initial phases of technological development, business model stabilization and societal reach, the market should trump the government in steering the course of innovation. Hence, I take issue with Lessig's view on FOSS.

Lessig's vision of innovation is one that aims to limit intellectual property rights and weaken the commercial sector. His subsequent support for FOSS technologies relies on government subsidies for investment and sustenance. Note a passage from the Future of Ideas where Lessig positions his support for FOSS by downplaying the role of commercialization in developing early Internet technologies and the innovation that ensued from intellectual property rights.

The core of the Internet was this collection of code built outside the proprietary model. For the property obsessed, or those who believe that progress comes only from strong and powerful property rights, pause on this point and read it again: The most important space for innovation in our time was built upon a platform that was free.

Historically, minus commercial industry, the other major players in the advancement of early Internet technologies were the US DoD and its DARPA center, which bank-rolled R&D through academic institutions and federal research labs. Yet private industry was essential to the diffusion of basic federal research into mass market consumer products. (see this history reviewed by Professor Philip Weiser, The Internet, Innovation and IP Policy, 2003- "by calling on commerce to take the leading role in developing the Internet, the government created a gold rush for companies to introduce proprietary technologies to the developing Internet infrastructure.")

Over the past few decades, private industry has vastly over-taken the government in developing and improving on Internet innovations. Lessig's vision would have innovation in Internet technologies return to their very early beginnings under government subsidies, while depriving society of the benefits enabled by commercialization of technologies.

Many FOSS advocates may support Lessig's opposition to intellectual property rights, but if they're free market Libertarians, their bases for FOSS support may be incongruent with his.

posted by Noel Le @ 8:00 AM | Academia , Free Culture Movement

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03.18.2008

File-Sharing, LimeWire, Identity Thieves, and 9-Year-Old Girls: Solutions Are Needed

Yesterday, convicted identity thief Gregory Kopiloff was reportedly sentenced to 51-months in prison for using LimeWire to download inadvertently shared tax returns, credit reports, bank statements and student financial aid applications that he then used to commit credit-card fraud.

Some sources report Kopiloff as the first case involving inadvertent sharing and identity theft. Actually, it is the first federal prosecution of an ID thief who exploited inadvertent sharing. Back in 2006, Denver District Attorney Mitchell Morrissey indicted an 8-person ring that used LimeWire to download inadvertently shared files, commit identity theft and fraud, and then use its proceeds to buy and sell crystal meth.

For prosecutors, this means that nine identity thieves exploiting inadvertent sharing have gone down and "tens of thousands" remain. This latter point was reinforced in two recent Information Week stories (here and here) that focused on inadvertent sharing of corporate data:

Are peer-to-peer networks really filled with sensitive corporate data just waiting to be plucked and abused? It seems unlikely--surely people wouldn't be that sloppy....

The results were shocking and scary--loads of confidential business documents and enough personal information to ruin any number of lives and create PR nightmares for quite a few companies. Among the business documents were spreadsheets, billing data, health records, RFPs, internal audits, product specs, and meeting notes, all found in a quick expedition....

The Info Week researcher looking for such documents also reportedly found an "information concentrator," someone who appeared to be deliberately collecting other people's inadvertently shared data--bank passwords, credit card numbers, credit reports and tax returns. The researcher realized the irony of what he had discovered: Persons trolling for inadvertently shared documents have the strongest legal and practical reasons not to "share" the data they download. Consequently, Info Week's potential identity thief was almost certainly "sharing" his data stash inadvertently.

If the professional thieves who exploit inadvertent sharing cannot consistently manage to avoid doing it themselves, one can well imagine what happens to the 26% of the 9-to-14-year-olds who reportedly use LimeWire. Indeed, those who would assume that such kids understand even the best-known of the risks that they are incurring should review Torrentfreak's interview with "Hannah," the reported pseudonym of a nine-year-old LimeWire user. Here is a sample:

TF. …"You mentioned you like Sean Kingstone - what if I told you that Sean Kingstone’s boss might send you a letter asking for money because you shared his album on LimeWire? What would you say to him?...."

[Hannah]: "I’d say “tooooo strict!” and anyway he can’t make me do anything. He’s not the boss of me, he’s the boss of Sean Kingstone."

TF. "What do you think might happen if you didn’t pay him?"

[Hannah]: Nothing. I’m too young to be charged by the government so he can’t charge me.

This interview illustrates yet another reason why inadvertent sharing must end. It also illuminates three other important points about Internet copyright enforcement:

First, if Hannah's family has to drain her college fund to settle a potentially ruinous infringement lawsuit, that will happen because distributors of programs like LimeWire chose to ignore the 512(d) safe harbor and to lack any means of disconnecting infringing users and responding to takedown notices. They chose, in other words, to create a conflict between users of their programs and copyright owners that the latter could not resolve through means less punitive than infringement lawsuits. As a result, suing infringing LimeWire users (like "Hannah") was the copyright-enforcement solution proposed by LimeWire LLC in Grokster.

Second, in Grokster, over 8 public-interest organizations, 79 professors of intellectual-property law and a vast array of technology companies and Internet savants argued that that distributors of file-sharing programs should not be liable even if they did intentionally "induce," (i.e., encourage or dupe), 9-year-old-girls into violating federal law. Why not? Well, these amici argued, inter alia, that the adult inducers should go free because copyright owners could just sue the many thousands of children and college students that they induced. Such sue-the-children arguments were made by entities including the distributors of LimeWire, Morpheus and Grokster, CNET, university librarians, some Internet-service providers, and Project Gutenberg, the Internet Archive and four professors from Harvard Law School's Berkman Center for the Study of the Internet and Society. In Grokster, such arguments were also rejected, unanimously, by all nine Justices of the United States Supreme Court.

Third, today, many countries are re-assessing whether and how we can significantly reduce the deliberately-crafted problem of file-sharing piracy without asking copyright holders (or prosecutors) to sue tens of thousands of children, students, and single mothers. For the sake of all concerned, I hope that this debate will feature Internet-community thinking more creative than the sue-the-children/my-customers mantra that animated the defense of the Grokster respondents. Indeed, even LimeWire LLC now argues that there are now better, alternative solutions to the mess that it made--albeit legislated solutions that impose significant costs upon all concerned, except LimeWire LLC.

posted by Thomas Sydnor @ 9:45 AM | Academia , DMCA , Enforcement & Remedies , Free Culture Movement , Internet: P2P, Search Engines... , Privacy and Security , Supreme Court

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02. 5.2008

IPRs in BRIC Economies

Following post-World War II efforts by the major industrialized nations to reintegrate the global economy through Bretton Woods and other international policies, less developed nations faced the prospects of entering the global stage at different phases of economic and industrial maturity. Consequently, views of international trade were shaped by nations’ unique economic situations. As history has shown, economies subsequently adopted more open vs. closed trade practices based on immediate economic-industrial challenges.

Researchers Robert Bird and Daniel Cahoy have released a new paper on how the BRIC economies (Brazil, Russia, India, China) are taking steps towards adopting and enforcing stronger IP laws, while balancing new IP rules with their economic situations. The Emerging BRIC Economies: Lessons from Intellectual Property Negotiation and Enforcement, Northwestern Journal of Technology and Intellectual Property, 2007.

It is tempting to view the BRIC’s options for the future from one of two opposing perspectives: (1) the Western property rights view, which argues for strong legal protections and the rejection of free-riding when a country has the economic strength to participate in global innovation, or (2) the Southern open access view, calling for a noble resistance to the coercion of industrialized oppressors intent on maximizing profits without a realistic understanding of development needs...

On one hand, the BRICs seem to respond to the economic incentive to limit IP enforcement when home industries can effectively copy the creativity and technology of industrialized nations. Conversely, the property rights push can seem a bit disingenuous in view of the fact that many western nations owe aspects of their economic development to a lack of IP Protection. As a result, nations often end up talking past each other or resorting to grudging conciliation without truly understanding the others’ needs.

Perhaps the dichotomous narrative is simply wrong on both counts. One can argue that it misses a middle ground that may better characterize the optimal future relationship of the BRICs with developed countries, as well as the larger developing world. It is possible that a hybrid model of IP protection and occasional exception—a process of convergence and resistance—will provide the mix necessary for developing countries to gain an economic foothold, protect the health and safety of their citizens, and play a responsible and vital role in the world economy. This model may not mimic the regimes of industrialized nations now, or event in the distant future. But it may provide a predictable projection the value of investment incentives in these growing global markets.

Although the BRIC economies may approach IPRs grudgingly, they must balance the extent to which they defy stronger IP laws and enforcement with the consequences on their trade relationships and long term development. For example, with the first industrial revolution, nations such as Germany “leap-frogged” by copying others’ machinery, production techniques and business models. One German statesman reportedly said: “We will gladly copy what we admire.” Germany would later adopt stringent IP laws to maximize the benefits of local commercial activity. Now, in the current global economy, based on innovations protectable by copyrights and patents, copying of foreign inventions that could be valuable to non-dominant nations is often prohibited. At the same time, enforcing strong IP laws will draw more foreign investment, provide consumers with greater access to modern goods and help mobilize local industry. Weak IP regimes may be beneficial in the maturing stages of industrialization, however long term economic goals require respect for copyrights and patents.

posted by Noel Le @ 12:15 PM | Academia , International

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01.24.2008

FOSS Is Nothing New

One consistent argument from the FOSS Movement is that it represents something new and unprecedented, even revolutionary. However, as Siva Vaidhyanathan from NYU argues, one must be careful when asserting modern phenomena as any kind of “radical rupture in the flow of history.” FOSS development-technologies have been around for decades, subject to business, societal and technological dynamics. FOSS is nothing new, and changes little in terms of economics and industrial organization. Ironically, a major source of misunderstanding over FOSS also exemplifies how FOSS has long been established in the technology sector- IBM.

An excellent history of IBM that helps explain the firm’s current backing of FOSS was released by Martin Campbell-Kelly and Daniel Garcia-Swartz. Pragmatism Not Ideology: IBM's Love Affair with Open Source Software (2008). The scholars argue that IBM has long embraced practices similar to its current FOSS strategies.

… IBM’s apparently contradictory position is nothing new. Software can be open or closed source; it can be free or for-profit; and it can be written collaboratively with users or not. IBM has been writing software for more that half a century, and during that time it has delivered software with practically every combination of these attributes. IBM has never had any ideological commitment to one form of software creation or another; its strategy has always been entirely pragmatic, and aimed at maximizing the business opportunity determined by the economic and technological environment of the day.
…
…in the 1950s IBM followed what today would be called an open source model—its software source code was open, free of charge, and written collaboratively with its users. By the mid 1980s, all of these attributes had been reversed—IBM’s software was closed source, sold or leased independent of hardware sales, and written without the collaboration of its users. It was then operating much as any other independent software vendor. In the mid 1990s… the company embraced both open systems and the open source model. Since then IBM has been in a state of transition, achieving a balance between free, open source software and proprietary software...

The technology sector continually witnesses shifting business models due to commoditization that cause firms to seek profit in other products-services where they can achieve comparative advantage and that are valued by their customers. These shifts, such as moving from proprietary software to services, are merely changes in corporate P&L models. The bottom line remains, for firms such as IBM- profit.

Continue reading FOSS Is Nothing New . . .

posted by Noel Le @ 12:17 PM | Academia , Free Culture Movement

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Government Technology Preferences

Dr. KD Raju from Jawaharlal Nehru University-New Delhi released a study on worldwide government technology policies and open source software. Is the Future of Software Development in Open Source? Proprietary vs Open Source Software: A cross Country Analysis, Journal of Intellectual Property Rights, Vol. 12, No.2, (2007).

Surveying open source initiatives across Brazil, China, Europe and India, Raju observes increasing proposals and adoption of open source preference policies. However, Raju cautions that such preferences do not address the enormous impact that technology policy can have on economic development, industrial organization and innovation.

There is no reason to believe that … proposed governmental promotion of OSS increases social welfare. The argument of economic and technology development with the help of OSS is also weak. For example, India achieved the present level of economic progress with the help of proprietary software rather than OSS….
…
Some governments are taking decisions mostly on political reasons without analyzing technological and economic needs.
…
The argument of economic development through OSS is not proved by empirical data. It is a common fact that any industry development needs proper investment and development … the sustainable profit making is absent in the OSS set up.

The importance of neutral government technology practices draws back to the beginnings of the modern digital economy. Previously, professors Mowery-Simcoe expertly analyzed how the success of early Internet era federal R&D programs rested on “technology neutral“ policies to promote commercial activity and technological advancement. Neutral government policies that consider the functionality and quality of technology promote economic growth, industrial development and innovation, while preferences that support any particular business-development model are untested.

posted by Noel Le @ 11:35 AM | Academia

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12.12.2007

Academics and Copyright

On Monday, I spent part of the morning listening to various academics and legal experts at "Copyright and the University: An Academic Symposium," an event hosted by ex-PFFer Patrick Ross. The event was meant to address attitudes towards copyright on college campuses.

The first panel, which followed a keynote by the US Register of Copyrights, Marybeth Peters, focused on "defining the problem." The panelists, adeptly led by Andrew Noyes of TechDaily, discussed everything from the attitudes of students towards the music industry to licensing arrangements for works included in course material. A few highlights and observations:

Continue reading Academics and Copyright . . .

posted by Amy Smorodin @ 2:45 PM | Academia , Enforcement & Remedies , Internet: P2P, Search Engines... , Universities

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12. 3.2007

On December 10th, ex-PFFer Patrick Ross is hosting "Copyright and the University: An Academic Symposium" at GW.
More info can be found here.

posted by Amy Smorodin @ 9:08 AM | Academia , Universities

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11.28.2007

Tyler Cowan on Chinese Movie Piracy

In "Chinese Movie Piracy is Overestimated," Tyler Cowan blogs a paper on the issue, and comments follow.

"Pilgrim" makes a good point in commenting that the reason that China is such a concern is partly because of their significant exports to other markets, even if domestic consumption of the products were low due to the generally low standard of living.

And, as always, one might reasonable point out that not every product necessarily would have been a sale. And that poverty in such countries makes that even less likely. But these points only go so far. Business models have to be forward looking. Someone who buys a pirated product is certainly a part of a potential market, if not a current market. Standards of living rise--potentially quite quickly.

posted by Solveig Singleton @ 1:38 PM | Academia , Enforcement & Remedies , International

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11.14.2007

IP Litigation Project

posted by Noel Le @ 10:31 AM | Academia

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11. 9.2007

Open Innovation and Open Source

posted by Noel Le @ 1:05 PM | Academia

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10.21.2007

Patents, R&D, Innovation