Dana Blankenhorn

Balance in Internet Law and Enforcement

Think of this as Volume 16, Number 5 of A-Clue.com, the online newsletter I've written since 1997. Enjoy.

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For digital activists, the Obama Administration has proven a bitter disappointment.

Rather than seeing the growth possibilities in unfettered access to the Web, the Administration has focused instead on the national security threat, and has been captured in turn by copyright extremists.

It's a slippery slope, but it's one liberty must navigate. It's one America itself has been navigating, sometimes with mixed results, since its founding. With the rise of the Internet, and its global impact on growth in every country, it's one we all must navigate.

Let's be clear here, because I'm hearing a lot of whinging from my side of the aisle. Activists for an open Internet are not powerless in this fight. Far from it. Because in our hands is growth – economic growth, human growth, intellectual growth. When people are forced offline, when they merely feel less than free, that has a profound, negative impact on growth.

It doesn't take a formal boycott. The action against SOPA/PIPA was merely an overt example of what happens every day, in billions of places around the world. By simply refusing to submit, by withholding the weapon of growth from governments, people demonstrate real power.

On the other hand, government must play a role as both guarantor of liberty and maintainer of order. We can't let the Internet be so open that a foreign government can hack it down. We can't let people steal from our own people and hide from justice. That's anarchy, not liberty. It may seem like a Randian paradise, but it will quickly end as all such paradises end, either in the dictatorship of the Moneytariat or a Somali wasteland.

Both sides must admit that there is a balance to be struck, but right now no one is standing in the middle and saying so. Thus we blunder on.

So let me stand in the middle and say so.

Free as in Fake, Fake as in Controversy

Karl Fogel of QuestionCopyright recently played “gotcha” with Richard Stallman and Glyn Moody – whom I hold in the same favor he holds Stallman – then steps up in Techdirt and plays the false equivalency game.

Fogel himself has an axe to grind here, so this is not an “interview.” Not that there's anything wrong with his axe. “Our projects highlight the restrictive effects of distribution monopolies,” he writes. “We're trying to change the terms of the debate, so that copyright reform efforts aren't stuck always reacting to industry rhetoric that equates copying with theft, plagiarism, and the abuse or destruction of the original work.”

Right.

Caesar Was the Bad Man

I come to bury Caesar, not to praise him.

Mark Antony's funeral oration in Julius Caesar (whoever wrote it) is one of the great speeches in all of literature. It's designed to twist a crowd against their best interests, to win them to an empire against the republic, by laying a great man's acts for the common weal against the mere “principles” espoused by Brutus and Caesar's other killers.

Julius Caesar was the villain. Antony's speech is a lie. The tragedy of the play is the destruction of democracy at the hands of Antony and Octavius, who would become Caesar Augustus.

So now let me come to the late Steve Jobs, and patents. 

Apple's latest patent, and the words of Jobs in his autobiography, make clear that his corporate aim is to own the smartphone market, through the legal system, for as long as demand for smartphones exists. What Microsoft took from him, through Windows, he bent his last energy to overthrow by having all Android phones ruled illegal, by taking them from the marketplace.

It's a direct assault against the heart of open source. And, I believe, a direct assault against the intent of patent and copyright.

The Open Source Issue is (really) China

Having used Google's Android to become a solid second-place player in mobile devices, Samsung is hedging its bets.

Even its open source bets.

The first hedge is an IP deal with Microsoft covering Android, which Samsung previously licensed from Google.

Terms are not disclosed, so while many open source analysts are angry, like Brian Proffitt, it was hard for me to see exactly what they were angry about.

“Samsung screws Linux over,” Proffitt wrote after reading about the deal at ZDNet. When I pointed out the lack of disclosure, and the possibility this may be little money for nothing in the way of real protection, he returned my Tweet. “The Microsoft FUD that's sure to come will make great hay out of this. Actual dollar amount does not matter.”

What an Open Source Process Can Do: Solve AIDS

While most in the media are talking about how video gamers solved a long-standing problem in AIDS research, correctly identifying the structure of a virus, I think the open source angle matters a lot more.

Because this was open source science. Instead of holding the problem within a small community, a proprietary approach favored by both universities and corporations, the problem was let out into the wild, through a video game system called Foldit, and solved within 10 days.

Credit goes to the Foldit Contenders Team, wrote a player named "mimi" who journalists were trying to give credit for the final solution. "It was the changes made by my colleagues that enabled mine to work, so it was very much a team effort," she wrote.

Hope For Open Amid the Ruins

These are tough times to be for open source.

Patent and copyright extremists are wrecking havoc, from technology markets forced to pay patent trolls and giant companies grabbing rights to the future through patents with absurd claims, to Europe extending copyright to 70 years in the name of a few living artists (and their long-dead managers).

But there continues to be ample evidence that copyright and patents need not strangle the future, and folks putting money behind the idea.

The UK's decision to ignore the extremists who put royalties into the European Interoperability Framework, insisting on Royalty Free standards for the goods they procure  is a little marker on the road.

Sure, it's entirely self-serving – governments strapped for cash don't want to pay the patent ransom – but if governments shouldn't be force do do so, what about the rest of us?

The Most Dangerous Legal Argument in the World

Oracle has escalated its war of legal words with Google with the most dangerous argument possible.

The burden is on Google to show the APIs it copied do not contain copyrightable expression because Oracle registered the copyrighted works at issue, which include the API specifications and the code.

Sounds innocuous, and it's supposed to. But if accepted by the court, and on appeal, it completely transforms the software landscape.

Oracle is arguing that it can copyright APIs and prevent companies from even connecting to its programs with them, without its permission, which may include demands for payment or for other business arrangements, at its sole discretion.

This would be a profound expansion of copyright, which remember lasts for the life of the creator plus 75 years, and is routinely extended any times it seems like Mickey Mouse might enter the public domain. (There is constant talk of making copyright eternal as well, and eliminating the public domain entirely.)

Will Law Force a Meego-Android Merger?

At first blush the idea sounds stupid.

Why should Android, the leading phone OS on the planet, merge its code base into Meego, which has shipped a single Nokia phone that will likely disappear faster than Mr. Popper's Penguins?

One word. Law.

As Florian Mueller has pointed out, many times now, Google faces an immense potential liability from Oracle's copyright-and-patent suit. The suit isn't against Android per-se. It's against Dalvik, the Java Virtual Machine (JVM) written to run Java-based applications. The Google legal team did not do their homework before letting this semi-proprietary thing into the wild, and Oracle may justify its purchase of Sun with one law suit as a result.

While Google and Oracle are both part of the Open Invention Network, the patent consortium designed to protect Linux, the suit is about Java, not Linux. The OIN has not, and will not, interfere, even though OIN head Keith Bergelt has made noise about wanting to protect Android in the press.

Intellectual Property Imperialism, or The 1793 Game

Think of this as Volume 15, Number 24 of A-Clue.com, the online newsletter I've written since 1997. Enjoy.

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Ideas have no intrinsic value.

They are only valuable if they are exploited. You can only get value from them if you pursue an idea to a completed work or invention, or if you get so good at coming up with new ideas people who do scale works or invention will pay you to supply them.

Patent and copyright were first created as “monopolies” in our 1787 Constitution, but they did not become enforced until the late 19^th century, after the U.S. gained a positive balance-of-trade in the products of ideas – in books and inventions.

When countries like China and India choose to ignore our copyright and patent laws, they are walking in the foodsteps of people like Samuel Slater (right), the people whose inventiveness built this country. Slater copied his 1793 Rhode Island mill from one he'd worked at in England, in violation of English law. Eli Whitney never made money from his cotton gin – his money came from a gun made with interchangeable parts he was able to manufacture.

Even when copyright and patent rights are fully maintained, most of the money they generate does not go to the people who came up with the ideas. In fact, very little does. A singer or author may only earn a 15% royalty. Royalties on patents are even more modest.

So why has the United States become such a stickler on patent and copyright, to the point where the government is willing to call Google an outlaw in order to enforce these laws more rigorously? 

Before Accusing Anonymous, Sony, Some Proof Please

Sony's claim that the online advocacy group Anonymous hacked its Playstation 3 network, enabling the theft of personal data from millions of users, has been laughed away by the group.

For once we didn't do it, states a blog post at Anonops, which has in the past been a reliable port into the group's actual aims and claims.The post was linked from the Anonops Twitter feed, which also called Sony incompetent.

The charge by Sony, which is based in Japan but now run by an Australian, former CBS head Howard Stringer, is made under the signature of Kazuo Hirai, Chairman of the Board of Directors of Sony Computer Entertainment America. In support of testimony to a U.S. House subcommittee, it states "We discovered that the intruders had planted a file on one of our Sony Online Entertainment servers named “Anonymous” with the words 'We are Legion.'"

The only other bit of "evidence" Sony offered is that, so far, no credit card transactions have been consummated with any of the compromised data. Anonymous is known for attacks with political rather than financial motives.

Since the data theft on April 26, Sony has revealed that it didn't protect user passwords with encryption, only with a simple hash. 

Here's why I believe Anonymous didn't do it, but why it's in a world of trouble nevertheless: