Monthly Archives: May 2007

Links for 2007 05 29

Never ever use the term “Intellectual Property”.

I re-distribute an entire article by Richard M. Stallman according to its licence, so this post is not released under the usual Creative Commons license.

Did You Say “Intellectual Property”? It’s a Seductive Mirage (also translated in Italian).
by Richard M. Stallman

It has become fashionable to toss copyright, patents, and trademarks – three separate and different entities involving three separate and different sets of laws — into one pot and call it “intellectual property”. The distorting and confusing term did not arise by accident. Companies that gain from the confusion promoted it. The clearest way out of the confusion is to reject the term entirely.

According to Professor Mark Lemley, now of the Stanford Law School, the widespread use of the term “intellectual property” is a fad that followed the 1967 founding of the World “Intellectual Property” Organization, and only became really common in recent years. (WIPO is formally a UN organization, but in fact represents the interests of the holders of copyrights, patents, and trademarks.)

The term carries a bias that is not hard to see: it suggests thinking about copyright, patents and trademarks by analogy with property rights for physical objects. (This analogy is at odds with the legal philosophies of copyright law, of patent law, and of trademark law, but only specialists know that.) These laws are in fact not much like physical property law, but use of this term leads legislators to change them to be more so. Since that is the change desired by the companies that exercise copyright, patent and trademark powers, the bias of “intellectual property” suits them.

The bias is enough reason to reject the term, and people have often asked me to propose some other name for the overall category — or have proposed their own alternatives (often humorous). Suggestions include IMPs, for Imposed Monopoly Privileges, and GOLEMs, for Government-Originated Legally Enforced Monopolies. Some speak of “exclusive rights regimes”, but referring to restrictions as “rights” is doublethink too.

Some of these alternative names would be an improvement, but it is a mistake to replace “intellectual property” with any other term. A different name will not address the term’s deeper problem: overgeneralization. There is no such unified thing as “intellectual property”–it is a mirage. The only reason people think it makes sense as a coherent category is that widespread use of the term gives that impression.

The term “intellectual property” is at best a catch-all to lump together disparate laws. Non-lawyers who hear one term applied to these various laws tend to assume they are based on a common principle, and function similarly.

Nothing could be further from the case. These laws originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues.

Copyright law was designed to promote authorship and art, and covers the details of expression of a work. Patent law was intended to promote the publication of useful ideas, at the price of giving the one who publishes an idea a temporary monopoly over it–a price that may be worth paying in some fields and not in others.

Trademark law, by contrast, was not intended to promote any particular way of acting, but simply to enable buyers to know what they are buying. Legislators under the influence of “intellectual property”, however, have turned it into a scheme that provides incentives for advertising.

Since these laws developed independently, they are different in every detail, as well as in their basic purposes and methods. Thus, if you learn some fact about copyright law, you’d be wise to assume that patent law is different. You’ll rarely go wrong!

People often say “intellectual property” when they really mean some larger or smaller category. For instance, rich countries often impose unjust laws on poor countries to squeeze money out of them. Some of these laws are “intellectual property” laws, and others are not; nonetheless, critics of the practice often grab for that label because it has become familiar to them. By using it, they misrepresent the nature of the issue. It would be better to use an accurate term, such as “legislative colonization”, that gets to the heart of the matter.

Laymen are not alone in being confused by this term. Even law professors who teach these laws are lured by, and distracted by, the seductiveness of the term “intellectual property”, and make general statements that conflict with facts they know. For example, one professor wrote in 2006:

“Unlike their descendants who now work the floor at WIPO, the framers of the US constitution had a principled, pro-competitive attitude to intellectual property. They knew rights might be necessary, but…they tied congress’s hands, restricting its power in multiple ways”.

That statement refers to the article 1 section 8, clause 8 in the US Constitution, which authorizes copyright law and patent law. That clause, though, has nothing to do with trademark law. The term “intellectual property” led that professor into a false generalization.

The term “intellectual property” also leads to simplistic thinking. It leads people to focus on the meager commonality in form that these disparate laws have–that they create artificial privileges for certain parties–and to disregard the details which form their substance: the specific restrictions each law places on the public, and the consequences that result. This simplistic focus on the form encourages an “economistic” approach to all these issues.

Economics operates here, as it often does, as a vehicle for unexamined assumptions. These include assumptions about values, such as that amount of production matters, while freedom and way of life do not, and factual assumptions which are mostly false, such as that copyrights on music supports musicians, or that patents on drugs support life-saving research.

Another problem is that, at the broad scale of “intellectual property”, the specific issues raised by the various laws become nearly invisible. These issues arise from the specifics of each law–precisely what the term “intellectual property” encourages people to ignore. For instance, one issue relating to copyright law is whether music sharing should be allowed. Patent law has nothing to do with this. Patent law raises issues such as whether poor countries should be allowed to produce life-saving drugs and sell them cheaply to save lives. Copyright law has nothing to do with such matters.

Neither of these issues is solely economic in nature, but they are not similar, and anyone looking at them in the shallow economic perspectives of overgeneralization cannot grasp the differences. If you put both laws in the general “intellectual property” pot, you will find that obstructs your ability to think clearly about each one.

As a result, any opinions about “the issue of intellectual property” and any generalizations about this supposed category are almost surely foolish. If you think all those laws are one issue, you will tend to choose your opinions from a selection of sweeping overgeneralizations, none of which is any good.

If you want to think clearly about the issues raised by patents, or copyrights, or trademarks, the first step is to forget the idea of lumping them together, and treat them as separate topics. The second step is to reject the narrow perspectives and simplistic picture the term “intellectual property” suggests. Consider each of these issues separately, in its fullness, and you have a chance of considering them well.

And when it comes to reforming WIPO, among other things let’s call for changing its name.

Copyright © 2004, 2006 Richard M. Stallman
Verbatim copying and distribution of this entire article is permitted worldwide without royalty in any medium provided this notice is preserved.

Links for 2007 05 28

Festival of Economics in Trento, be welcome!

From 30 May to 3 June, Trento will host the 2nd Festival of Economics. This time the topic is “Human capital, social capital”. Thirty thousand people are expected. So if you want to come to Trento, be welcome! Contact me via CouchSurfing and I’ll be delighted to host you, but please read the campaign for a more open CouchSurfing and sign the petition.
The festival will be open by a talk of Partha Dasgupta of Cambridge about “Social capital as an economic institution” and will be closed by the Nobel prize-winner Gary Becker. Have a look at the entire Festival of Economy program, there are many big names. I have to say I’m not satisfied at all with the program. It is very boring and institutional, while the topic of social capital and relationship-based economy is so interesting, exciting and intellectually challenging. And there are a lot of ministers (6, with the Prime Minister Romano Prodi) and a lot of ex-ministers (5, plus many more politicians). It seems much more the festival of the politics than the festival of the economics.
Anyway, at least there will be the Minister of University and Research Fabio Mussi, the Minister for Public Administration Reform and Innovation, Luigi Nicolais and the Chairman of Microsoft Italia and Vice Chairman of the Microsoft Corporation Umberto Paolucci. So that we will be able to ask them about the monstrous deal between Microsoft and Italy (signed by the 2 previously mentioned ministers). More information about the still-secret deal are available thanks to Associazione per il Software Libero: Spunti di riflessione sulle politiche d’innovazione nel settore ICT and Uno studio approfondito sui recenti accordi tra Governo e Microsoft.

Links for 2007 05 22

“A Fair(y) Use Tale” short movie: soon in Italian?

UPDATE: substitued video from youtube with video from DotSub. In DotSub we can add subtitles directly via the Website, terribly cool and useful!

I found extremely peculiar that Microsoft is actually become a GNU/Linux distributor (it gets SUSE Linux licences from Novell and distributes them to Dell) and can be wounded by the GPL itself.
In a similar way, in order to explain what is broken with current copyright, the movie “A Fair(y) Use Tale”, directed by Professor Eric Faden comes out of Stanford University’s Fair Use Project Documentary Film Program, meshes up parts of Disney movies, the very folks we can thank for nearly endless copyright terms.
The video starts with a clever hack on the warning played before DVD movies.

WARNING: Federal Law allows citizens to reproduce, distribute, or exhibit portions of copyrighted motion pictures, video tapes, or video discs under certain circumstances withotu the authorization of the copyright holder.
This infringement of copyright is called “Fair Use” and is allowed for purposes of criticism, news reporting, teaching and parody.

I found it difficult to follow since it is a collection of words or short sentences taken from different Disney movies. I wonder how long it will take before someone will add subtitles to the video and post the new version on YouTube. I think very few days.
And I also wonder if any Italian will soon dub it in Italian taking voices from the Italian versions of Disney movies.
Actually I was not able to find the licence of the movie itself. Do you have any idea? Some Creative Commons?
(via Antonella)

“Sex Crimes and the Vatican” BBC documentary video, with Italian subtitles

Some days ago I was astonished to discover that in Italy priests who are alleged to be pedophiles and abusing young girls are not judged by the Italian justice, but by other priests (please, note the disciplinary measures for a pedophile priest were a ban from hearing confession or celebrating Mass for five years, and every day for one year he must recite Psalm 51).

Today I discover (via Nicola Mattina, in Italian) that the Italian blogosphere is heavily commenting on a BBC documentary titled “Sex Crimes and the Vatican“.
BisPensiero added Italian subtitles to the video and currently this is the most popular video on Google Video. Be aware the documentary contains the personal recording of a man who have been raped by a priest when he was 14 years old. It is a tough watch, be prepared.

You can also read the the transcript of the Italian subtitles

This time Italian obscurantists will have a hard time to ask Google to remove the video since the copyright belongs to BCC.
Note that this attention entirely started from blogs, after Bispensiero added subtitles and in fact th official newspaper of the Vatican says blog spreads BBC “slander” to Italy by posting a BBC documentary that alleged a Church cover-up of child sexual abuse.
After blogs attracted attention, a political row has erupted in Italy over whether state television should air the BBC documentary. Television is so behind blogging.

I have my personal ideas about the Catholic Church but please verify these facts, judge by yourself and act as you think it is better.

The “be very afraid” tour. Can you imagine who is the “artist”?

Eben Moglen, the lawyer of the Free Software Foundation, explains what is very wrong about the Microsoft-Novell agreement.
If you think this is important matter, please donate to the Free Software Foundation now.

Below you can find the video and a transcript of it from Wikisource which is released under the GNU Free Documentation License and hence gives me the freedom to redistribute it here under the same licence.
The “be very afraid tour” video

Transcript from Wikisource released under the GNU Free Documentation License

[Eben Moglen:]

I beg your pardon, certainly, I thought the question was so obvious that it needed no repetition: “Could I explain the threat posed to GPL’d software’s freedom by the Microsoft/Novell agreement?”.

And I’m gonna speak in slightly more general terms than that, beginning with: Imagine a party which wants to eliminate free software’s freedom, or at least hobble its developers in serious ways, so as to inhibit their ability to compete. Imagine that such a party has patents of uncertain validity, but in large numbers, which it could conceivably use to scare developers and users. Imagine that such a party then begins to make periodic threats in the form: “Gee, we have a lot of patents. Never mind how many, never mind what they are, never mind how good they are, we have a lot of patents, and someday something terrible will happen. Don’t use that software.”

Imagine that that’s a strategy that the party adverse to freedom engages in because it’s better than suing. Suing is expensive, suing is irreversible, and suing might actually cause you to have to explain which patents they are and why they’re any good. So threatening is better than suing, okay? Imagine a party who engages in recurrent threats every summertime, for years on end, on a sort of annual “Be very afraid” tour, okay?

I know, it sounds absurd, I know.

Imagine now that what happens is that the annual “Be very afraid” tour starts creating terrible pushback, because people call up, who are the CEOs of major banks and financial institutions, and they say: “Those people you’re threatening are us. We’re the largest, richest, most powerful people in capitalism, and we determine the value of your stock. We think you should be quiet now.”

Okay? That happens if you do this thing, of saying “Be very afraid” to people who have lots and lots of money and lots and lots of power and who control the value of your stock – they will push back. The business model of threatening to sue people works if the people are 12-year-olds. It does not work real well if they are the pillars of finance capitalism. So, as a party engaged in annual “Be very afraid” tours, you’re gonna start to get pushback by enterprise customers who say “That’s us you’re threatening.”.

Now what if you could reduce their sense of being the people who are made afraid? What if you could find a way to give them quiet and peace – and make a little money on the side – so that the only people who are left quaking when you did your annual “Be very afraid” tour, were the developers themselves? Now you would have given yourself a major ecological boost, in swinging your patents around and threatening to hurt people.

Deals for patent safety create the possibility of that risk to my clients, the development community. If enterprise thinks that it can go and buy the software my clients make from some party who gives them peace from the adversary in return for purchasing a license from them, then enterprises may think they have made a separate peace, and if they open the business section one morning and it says “Adversary makes trouble for free software”, they can think “Not my problem, I bought the such-and-such distribution, and I’m okay.”

This process of attempting to segregate the enterprise customers – whose insistence on their rights will stop the threatening – from the developers who are at the end the real object of the threat, is what is wrong with the deals.

So what you ought to do is to say to parties “Please don’t make separate peace at the community’s expense. Please don’t try to make your customers safe, if that’s gonna result in the destruction of the upstream rainforest where your goods come from. We’re an ecological system. If you undermine community defenses you’re undermining the whole ecology, and doing that for the benefit of your customers at the expense of your suppliers is not a good way to stay in business.” So that’s the fundamental discussion about the problem created by such deals.

Now you have the second question, which is: “What to do about it?”, but Joe didn’t ask that question.

[Applause] Yes.

Links for 2007 05 14

Microsoft trying to use its patents wallet weapon again Free Software. Moglen: “Waterloo is here somewhere”

Interesting article by CNN: Microsoft takes on the free world. Microsoft claims that free software like Linux, which runs a big chunk of corporate America, violates 235 of its patents. It wants royalties from distributors and users. Users like you, maybe.

Some quotes and short comments below.

More than half the companies in the Fortune 500 are thought to be using the free operating system Linux in their data centers.

I didn’t know. Well, it is becoming harder and harder to dismiss Free Software, isn’t it? And in fact …

Microsoft asserts that one reason free software is of such high quality is that it violates more than 200 of Microsoft’s patents.

And this is ridicolous, Microsoft is claiming that GNU/Linux developers are studying the patents Microsoft got and copied them? Or it is more that Microsoft is patenting everything (instead of spending the money it gets from its monopolistic position for creating a decent Operating System) notwithstanding evident prior art? Trying to patent smileys? With the US Patent Office
even rejecting a patent previously granted to Microsoft for a file format as “obvious and therefore not subject to patent”? Well the examples could be thousands.

The conflict pits Microsoft and its dogged CEO, Steve Ballmer, against the “free world” – people who believe software is pure knowledge. The leader of that faction is Richard Matthew Stallman, a computer visionary with the look and the intransigence of an Old Testament prophet.

I loved the picture used by CNN

Furthermore, FOSS has powerful corporate patrons and allies. In 2005, six of them – IBM (Charts, Fortune 500), Sony, Philips, Novell, Red Hat (Charts) and NEC – set up the Open Invention Network to acquire a portfolio of patents that might pose problems for companies like Microsoft, which are known to pose a patent threat to Linux. So if Microsoft ever sued Linux distributor Red Hat for patent infringement, for instance, OIN might sue Microsoft in retaliation, trying to enjoin distribution of Windows. It’s a cold war, and what keeps the peace is the threat of mutually assured destruction: patent Armageddon – an unending series of suits and countersuits that would hobble the industry and its customers. “It’s a tinderbox,” Moglen says. “As the commercial confrontation between [free software] and software-that’s-a-product becomes more fierce, patent law’s going to be the terrain on which a big piece of the war’s going to be fought. Waterloo is here somewhere.”

I didn’t know about the OIN but the mention to cold war is really appropriate. And to the possible Armageddon as well. I’m a bit surprised that Microsoft decided to take it so frontal. If they lose this one, it will be one of the last. Obviously they have thought very well about the strategy. Uhm.

Anyway this is one more reason for not embracing software patents in Europe. Software patents don’t make sense but also politicians who seems not too interesting in what make sense but mainly in consensus should understand that letting Microsoft sue European companies and citizens is not a too clever move.

He says that the Linux kernel – the deepest layer of the free operating system, which interacts most directly with the computer hardware – violates 42 Microsoft patents. The Linux graphical user interfaces – essentially, the way design elements like menus and toolbars are set up – run afoul of another 65, he claims. The Open Office suite of programs, which is analogous to Microsoft Office, infringes 45 more. E-mail programs infringe 15, while other assorted FOSS programs allegedly transgress 68.

Since you are simply tossing numbers in the air, why not saying that every program violates at least 1.988.456.645.110.000 Microsoft patents, eh?

Stallman demanded that all contributors to GNU projects assign their copyrights to the Free Software Foundation, which Stallman set up and controlled. That meant that anyone who distributed free software covered by those copyrights had to abide by a license Stallman wrote, called the GNU General Public License (GPL).

I think this is the only technical error in the article. I think contributors to the GNU projects retain their copyright and simply decide to use the GNU GPL licence. Am I wrong?

(Stallman insists that “GNU/Linux” is the proper name, and he refuses to give interviews to reporters unless they promise to call it that in every reference. In part for that reason, he was not interviewed for this article.)

I love this man! ;-)

Smith was not to be deterred. Since the GPL covered only distributors of Linux, nothing stopped Smith from seeking royalties directly from end users – many of which are Fortune 500 companies. He would have to proceed carefully, however, because most of those users were also major Microsoft customers.

The terrain is slippery. I’m a bit surprised Microsoft took it so frontal. The article also speaks about Microsoft-Novell deal and this is quite important as well. Anyway we’ll see in the coming months where is the Waterloo. Stay tuned.

Update: Growlaw publishes some reasons for not worrying and they are clever and clearly explained.