Hblog

They just don't get it

WIPO was here at the Stanford Law School for a conference entitled 'WIPO Comes to Silicon Valley: High tech IP issues in a global marketplace'. Luckily, Larry Lessig was there to inspire at least some debate about the current status quo in global intellectual property law (although I heard that most of the audience was too wimpy to question him in public, but to rather seathe away in their greasy corners, whispering like jealous children, about how shocking were his challenges).

It was pretty obvious that nobody coming to this conference was willing to question the current status quo that has led to so much extremism on both ends of the debate. I went to a panel talking about domain name disputes, and was struck by the paranoia of many lawyers who are tasked with protecting their company's good name on the Internet. It seems as though it is an almost impossible task to prevent fraudsters and cyber squatters from taking every opportunity to make the most out of the Internet's global reach. I'm certainly not advocating that fraudsters be left to build empires in competition with companies that have worked hard to build a valuable brand, but I also believe that if markets are not being served, and if a company has no intention of serving that market, then there should be some room for local innovation and development so that everyone can share in knowledge prosperity.

If we want everyone around the world to share more equally in technological advancement and its rewards, we need to empower the smaller innovators by building more flexibility into what has become a starkly rigid system. This conference made me realise more than ever how human greed is restricting what could be such an enormous opportunity for innovation to spread to countries around the world in a way that was never before possible. What is instead being spread, is a new type of imperialism that demands revenue from populations that have already been stripped of most of their natural resources, and are now being prevented at every turn from enjoying access to the development that can only come from shared knowledge.

Let's get specific before this starts sounding rant-like. The latest example in IP imperialism is a case from South Africa, where a local newspaper is being sued by US-based Wiley Publishing, the publishing house that publishes the 'For Dummies' series. The Mail and Gaurdian, they said, violated its trademark when they published a news story entitled, 'Cricket for dummies'. I don't know whether this is a find from some of the copyright 'bounty hunters' that I heard about for the first time here, but whatever policing is being done on Internet content, it is overstepping more than a few common-sense boundaries.

And when I told this story to the panel as an illustration of how extreme the law had become as a tool for stamping out smaller competition, they just didn't get it.

Free Culture shows how free culture works

I went to Larry Lessig's book signing event at the Stanford Law School last night. It was an inspiring evening - even by Lessig's standards. He told this amazing story about his publisher, Penguin, agreeing to allow free downloads of his book, Free Culture, under a Creative Commons license. The book was released 3 weeks ago.

In the last 3 weeks, Free Culture has been downloaded by several thousand users. It has been re-developed into 13 different formats - including a free audio book which was read by people around the world and submitted within days of the casual proposal on AKMA's blog.

Apparently, Penguin, the first major book publisher to go the route of allowing a free download of one of their published books, is getting numerous requests from authors who want to experiment with free downloads too. They've recognised a new model that works for sales and is fair, open and free at the same time.

What a beautiful story to tell.

Who owns the past?

'According to Interpol, the illicit antiquities trade is the 3rd largest illegal industry in the world after illicit trade in drugs and arms.'

Eric Kansa, from the Alexandria Archive, gave a presentation called 'Open Knowledge and Heritage: Moving the Past to the Cultural Commons' at the DV Fellowship the other day. It was a fascinating discussion about the Institute's plans to build a cross-platform archive for archaeology and world history that aims to preserve and promote our shared, global heritage. According to the website, 'The AAI has the capacity to store far more maps, pictures, and artifact information than traditional publication and make them accessible worldwide through simple Internet searches. By removing barriers to information, we encourage innovative research and enable people from all walks of life to explore the past and think creatively and critically about its relevance to the present.'

Kansa spoke about the potential for human beings to collaborate with one another, drawing from as many sources or perspectives of history in order to gain more meaningful pictures of the past. He said that, because the past is only meaningful in context and because the past is a resource that is often politically contested, the Alexandria Institute believed in global public access to these knowledge sources, rather than seeing the past as a 'treasure' of war or personal affluence.

For this massive undertaking, the Alexandria Institute is collaborating with XSTAR project at Chicago University to develop an intuitive interface to view, search, and analyze archaeological and historical information. XSTAR which stands for "XML System for Textual and Archaeological Research", is being developed as the xml standard for archeological documentation on the Internet.

The Institute is currently using Creative Commons licenses for its content, but Kansa says that they may have to develop a "cultural heritage license" that is more specific to the archeological context of publication around the world. They are working with Jason Schultz at the Electronic Frontier Foundation on issues such as data "abstraction" (data that isn't copied but rather extracted and compiled from scholarly publications) in order to avoid copyright limitations and to provide an alternative to those organisations that still want to retain copyright to their data.

I think that this will be a critical issue for the Creative Commons movement. It is essential to promote the knowledge about our past as a global, public commons, so that we can have the opportunity to rip, mix and burn ideas about the past that fit with our own sense of identity. Because as Kansa says, 'our past, our culture, is and always has been a source of our creativity.'

I can't but think that if we remove that spark by privatising our shared history, we will be less human as a result.

SACP rants about unauthorised logo distribution

Can you believe it? I was rifling through the websites of the South AFrican National Congress and the South African Communist Party, trying to find a picture of a fist for a new design that I'm doing (can't believe they still have a fist holding a spear as the party logo, but that's another story) and I was shocked to find this notice on the SACP's website complaining that unauthorised companies 'are selling merchandise such as caps and t-shirts with the Party logo and other Party symbols and slogans.'

According to the site, 'The Party and its official representatives have the exclusive right to produce and sell merchandise containing Party symbols. This we do through Inkululeko Media and Marketing (IMM), which is the only group with the authority to sell Party merchandise.'

I cannot believe that this is serving the cause of the SACP unless they get a huge income from the sale of their merchandise - in which case they should either do their job better or find something else to make money out of. Preventing people from using the communist symbol to express their ideals is just shocking and seems completely opposed to the party's mission. It's not as if these companies are misrepresenting them - it appears from the notice that they are merely trying to distribute the party's message to a public that is interested in using it. How can this in any way be detrimental to the SACP's goals - especially on the eve of a national election?

If infrastructure, then commons

Professor Brett Frischmann gave a presentation at the Stanford Law School entitled, 'An Economic Theory of Infrastructure' today. His theory is to say that if a resource can be defined as an infrastructural resource, then it should be protected and promoted as a public commons - either by the government, or by the government incentivising others to protect and promote it.

This is really interesting - it delves deeper into the rationale of what Lessig and Benkler talk about when they say that the Internet should be seen as a public commons, available to all. What is most interesting is if you apply Frischmann's 3 criteria to the Internet as an international, rather than national commons:

1. 'The resource is (or may be) consumed nonrivalrously,'
2. 'Social demand for the resource is driven primarily by downstream producers that require the resource as an input, and'
3. 'The range of goods and services produced downstream varies across the spectrum of private goods, public goods and/or nonmarket goods'.

As far as I can see, one can only view the Internet as an international resource - since its value is attained primarily through its global nature. There are certainly some applications of the Internet that exclude particular markets, but the 'range of goods and services produced downstream' would be negatively affected if emerging markets - or any markets for that matter - were left out of the equation. I'm interested to read more about Frischmann's argument as he maps out the applications of this theory - especially as it is applied more concretely to the global environmental movement that has had some success in viewing the environment - any environment - as a global rather than national public commons.

This argument could be applied to the 'Digital Solidarity Fund' proposed by Senegal at the World Summit on the Information Society which has been 'put on hold until '"a thorough review" of existing and possible funding mechanisms is completed before the end of 2004'. As Frischmann seems to suggest, the market alone will not be able to regulate the Internet's infrastructure commons. Governments, or at least government incentives, need to come into play if the infrastructure is to be equally available to all.

I suppose the question is really how far governments need to go in terms of facilitating access to this infrastructure. The history of the environmental movement shows how it was only when the environment globally came to be seen as a sufficiently valuable resource to protect that governments united and donated time and resources towards solving the major problems facing the sustainability of the resource. What the free (as in freedom) Internet movement now needs to do is to show the extent of problems that will be exaccerbated in the future if the Internet's high social value is not facilitated in the present. As Frischmann says, 'letting the market regulate a commons resource not only squelches innovation (as Lessig argues); it also squelches all higher social value applications along the line - applications that serve as the 'nonrivalrous inputs into the production of a wide variance of non-market goods'.

More on public domain vs public commons

I found the abstract for Volker Grassmuck's discussion of the '3 models of free knowledge' from Idlelo. He describes them as follows:

'* Public Domain Knowledge; in the technical legal sense: knowledge not or not any longer protected by IPRs, knowledge that belongs to everyone.

* Public Knowledge; paid for by taxes, public broadcast fees and other mandatory contributions. Science at public universities and public broadcasts are important examples, and the Open Access Archives movement in science and the recent decision by the BBC to make its archives freely accessible on the Internet are moves to reclaim the publicness of these resources.

* Commons Knowledge; in the strict sense: the property of a community of creators. Prime examples here are the free software communities that regulate their boundaries with the help of licences, the GNU General Public License (GPL) being the prime example. The free online encyclopedia Wikipedia is the most powerful current demonstration that the free software model is applicable to other forms of knowledge as well.'

I'm really interested in another distinction based on South Africa's Freedom of Information Act where 'information in the public interest' is made accessible - even if it is held by private institutions. The South African History Archives (an independent institution) would be an example of this - as well as a number of other NGOs and independent bodies that have taken over government's traditional responsibilities. The way I see it, another big problem, especially in the developing world, is that the body of public knowledge (paid for by taxes) is becoming smaller and smaller as governments increasingly privatise services or are simply not able to efficiently service the population resulting in a proliferation of NGOs and non-profits taking over their roles. Surely regulation should start to emcompass accessibility to knowledge that falls outside the traditional definition of 'government information'? Surely?

Public Domain vs Public Commons

I just went to a talk by Erik Valgaeren, a Brussels lawyer, on the new European Union directive (2003/98) on harmonizing public sector information. as part of the Stanford Center for Internet and Society's lecture series. The directive aims to facilitate the re-use, rather than access, by both private and public sector bodies to public sector information. Apparently governments throughout Europe have had different laws defining public sector information and under what conditions that information may be accessed. According to the definition in the directive, public sector information is defined as information produced by the government. What I find interesting is how information that may be useful to the public, may not necessarily fall within this definition, and will therefore not be as accessible. One example is information held by private bodies that have taken over the tasks that governments used to fulfill (weather agencies etc). Another is the example of information held by non-governmental organisations - such as the South African History Archives - that may be realy useful if publicly available, but may not necessarily fall within the official definition of public domain materials.

SCO vs IBM = MS vs Linux

I went to a seminar yesterday to hear Chris Kelly from the law firm, Baker & McKenzie, talk about the SCO vs IBM case. Kelly introduced the fact that I've since heard on the news that the recent MyDoom virus targets the SCO website specifically. This is interesting. It proves, yet again, how much power is held by techies with alternative views on the political control of technology.

This is a critical case - especially if you believe, as Kelly does, that this is not a fight between SCO and IBM, but rather a fight between Microsoft and Linux. It doesn't seem as though SCO has much chance of succeeding in the case, but if MyDoom is traced back to any individuals involved in the case, or if there is a skewed judgement, it could prove to be a huge setback for open source technology, as the model that replies on low cost and high independence, is forced under the power of companies like SCO.

Lessig suggests global 'disobedience'

I love Larry Lessig's latest Wired article entitled, 'A Taste of Our Own Poison. A modest proposal: Hold Hollywood hostage till we kill farm subsidies. The article suggests that developing countries should unite to ignore US intellectual property protection in their countries until the US stops the farm subsidies that are forcing poor countries to destroy unwanted crops. Read this:

A block of powerful developing nations should first take a page from the US Copyright Act of 1790 and enact national laws that explicitly protect their own rights only. It would not protect foreigners. Second, these nations should add a provision that would relax this exemption to the extent that developed nations really opened their borders. If we reduce, for example, the subsidy to agribusiness by 10 percent, then they would permit 10 percent of our copyrights to be enforced (say, copyrights from the period 1923 to 1931). Reduce the subsidy by another 10 percent, then another 10 percent could be enforced. And so on.

I think it's a wonderful idea and probably the only way to really get the US to stop and listen.

Stallman's misdirected grace

Richard Stallman graced us with his presence at Idlelo this week. He spoke eloquently about freedom and free software; he lectured us painfully on the semantics of the terms 'intellectual property', 'free' and 'open source' software; he admonished the people who failed to subscribe to the philosophy of his precise terms as 'lacking in intellectual capacity' and spent most of his time rapping about how the GNU license needed to be given credit because it was due. The fact that he lectured us for almost an hour and a half, with 10 minutes for questions that he cut off before they were finished being asked, on the danger of software patents when he hadn't even found out the basic fact of whether they were in force in South Africa, seemed not to have occurred to him.

And now I am tired. Tired mostly of the crock-pots who come here telling us over and over again how, by talking about the free and open source movement, we have to subscribe to their ideology and give them the credit that they're due. I'm not saying that I don't agree, and I'm not saying that all are crock-pots, but I think that we have a right to develop our own ideas about what conditions are required for the freedom promised by the FOSS movement to take place in Africa.

So I've decided that Richard Stallman should stay in his books and stop coming to us in the guise of a saint, to yawn at the podium and shout us down when we're talking. Strange to realise how little he knows about being part of a community when he has made such incredible insights into community values.