Digital Copyright Canada

Here's audio from last night's talk at the Melbourne Writers Festival: "Copyright vs Creativity." Many thanks to
Iain H. McLean for recording and uploading this!

MP3 Link

My latest Locus Magazine column, "Proprietary Interest," talks about the way that our instinctive ownership claims over the stuff we find and post to the Internet do more harm than good. When we claim that public domain images, interesting links, or other net-fodder are "ours," we invite a muddle in which others make even more compelling ownership claims. For example, if the old public-domain Lysol ad you scan is "yours," then why shouldn't it be Lysol's?. This is a world in which we spend all our time arguing about whose interest is most legitimate, instead of sharing, discussing, criticizing and enjoying the world around us.

Any ethical claim to ownership over a scan of a public domain work should be treated with utmost suspicion, not least because of all the people with stronger claims than the scanner! To be consistent with the ethical principle that one should never use another’s work without permission (regardless of the law or the public domain), every scanner would have a duty to ask, at the very least, the corporations whose products are advertised in these old chestnuts (the very best of them are for brands that persist to today, since these vividly illustrate the way that our world has changed – for example, see the very frank Lysol douche ad). For if scanning a work confers an ownership interest, then surely paying for the ad’s production offers an even more compelling claim!

And the publishers of the magazines and the newspapers – to scan is one thing, but what about the firm that paid to physically print the edition that we make the scan from? And then there are the copywriters and illustrators and their heirs – if scanning an ad confers a proprietary interest, then surely creating the ad should give rise to an even greater claim?

We do acknowledge these claims, at least a little. A good archivist notes the source. A good critic notes the creator. But that is the extent of the claim’s legitimacy. If we afford descendants and publishers and printers and commissioners their own little pocket of customary right-of-refusal over their works, we would eliminate the ability to keep these works alive in our culture. For these owed courtesies multiply geometrically – think of the challenge of getting all of Dickens’ or Twains’ far-flung heirs to grant permission to do anything with their ancestors’ works. What a lopsided world it would be if ten seconds’ scanner work with the public domain demanded 100 hours’ correspondence and permission-begging to be ‘‘polite!’’

Proprietary Interest

Locus

Darl and Me Inc Holdings LLC, Darl's LLC, got not only the copyrights but a patent application as well, including rights to sue for any past infringement. The patent is entitled "Systems and Methods for Providing Distributed Applications and Services for Intelligent Mobile Devices," and the application was filed in 2006, #11/533347. We were told in advance of the sale that this patent application was excluded, but then he got it anyway.

What was SCO thinking, I was asking myself as I read the agreement? I could just see it: "Darl sues Google's Android". Why not? Everyone else and his dog is. Of course there's some prior art on that method of making fast, easy money. Seriously, though, if you check the transaction history for this patent application with the USPTO's PAIR system, what you learn is fascinatingly funny.

At the time of the sale in April, the patent application was still working its way through the system. There was a non-final rejection notice that issued in January of 2010, which presumably Darl knew about if he did any due diligence. In July, post-sale, there was a request for more time to answer that notice and then they filed a reply. But on August 17, there was a final notice of rejection anyway of claims 1-17 and 19-20. Prior art and obviousness. Claim 18 had been "withdrawn from consideration" so the rejection was not only final but total. Darl has 3 months to reply, and, in some conceivable convoluted drag-it-out process the rejection outlines, it could last six months, tops. But it looks like Darl bought a pig in a poke.

And some of you say there is no God.

Asia Dent (right) must be the most famous face in Poughkeepsie today.

She was photographed by IBM PR recently putting a probe to a new 5.2 GHz chip that is at the heart of the company’s new zEnterprise mainframe, shipping next week.

Florian Mueller calls this the most dangerous product announcement of the century. That’s because zEnterprise could let IBM create a cloud monopoly among large enterprises, assimilating Linux under its mainframe patents.

All this goes back to the Turbo Hercules case, he writes.

You may recall that Turbo Hercules is an IBM mainframe emulator that works on PC-type hardware. When it was a labor of love IBM had no problem with it. When its maker tried to productize it, in the way other open source projects are productized, IBM’s lawyers were on him in a flash.

Hercules founder Roger Bowler then filed a complaint with the EC’s antitrust authorities, saying IBM was illegally tying its mainframe software to hardware.

The new chip makes those chains less burdensome to customers. They’ve got the fastest chip in the world on their side. And if you’re processing bank or credit card transactions (or health claims) that’s a very big deal.

This kind of transaction processing continues to grow rapidly. IBM has driven everyone out of the old mainframe business. Nearly everyone in the space — all the biggest global trade enterprises — have their key functions riding on IBM mainframes.

They’re thrilled with the new IBM mainframes.

Which means that if any scaled enterprise is going into the cloud, it’s taking its mainframe with it. IBM has kindly allowed this new mainframe to assimilate what Linux and Unix can do, without offering any way back.

It’s precisely what critics were accusing Microsoft Sharepoint of doing, but under complete patent protection and control.

In this way, IBM hopes to embrace and extend the cloud into its mainframe monopoly, and keep filing patents on the technology so as to make it an eternal lock on the top end of the business, Mueller writes.

Who is going to rewrite their core processing systems in order to gain the price benefits of true cloud technology?

Which may be why IBM doesn’t want to step up to the plate and be an open source hero.

It is common currency in open source to say that patents are an American problem.

That’s not true. Software patents, or patents on what is expressed in software, are a global problem.

(Picture from our Apple Core blog, co-starring Jason O’Grady and David Morganstern. Always filled with Apple-flavored bloggy goodness.)

This is especially true in the case of Apple, which has sued HTC (and by extension Google) for violating its claimed rights to multitouch technology.

As Florian Mueller explained recently, Apple filed international patent applications for how it operates its touchscreen display in early 2007, and how you unlock the device with gestures on the locked image, in late 2006. It applied for patents on its touch screen interface late last year.

From this it’s clear Apple thinks it has a worldwide monopoly on how the iPhone works, one that could last until late in the next decade. The questions courts must ask are:

1. Does this cover any portable touch screen system, as Apple contends, or just this particular system?
2. Should the patents be considered valid, since Google asserts it was working on its own Android system before the iPhone patents were filed.

There is another important question. Does it respect and reward innovation to give Apple control of all portable touch screen devices, for as long as touch screens may be an interface of choice? Would society have benefited if Microsoft had to wait until the 21st century to deliver Windows, or something like it?

Patent suits are most commonly filed in the U.S., Mueller writes, because this is still the largest technology market, because lawyers are comfortable with the legal system here and because victory usually leads to quick negotiations on global rights.

This leads me to two further questions:

1. If China creates a reasonable patent law framework, will its market eventually draw patent litigation there?
2. If U.S. legislators do return to patent reform, how will that impact technology markets worldwide?

Discuss.

I have updated the MP database to reflect current MPs. All 307 sitting MPs should now be correct. If there are issues, let me know. I will work on creating a new letter for people to send Re: C-32.

The missing MP is in the riding of Winnipeg North which has been vacant since April 27, 2010, when Judy Wasylycia-Leis announced her retirement from federal politics. She is running for mayor of Winnipeg.

Before Israel was founded in 1948 it made sense to conclude a Passover seder with the words “Next year in Jerusalem.” With Israel a reality the arguments over the phrase have changed. Yet they endure.

Desktop Linux is the same sort of deal. Linux believers always assume that next year will be the year of desktop Linux. Windows followers often chide those who seek Linux with that belief, both here and elsewhere.

Before anyone starts thinking this Catholic boy has changed his stripes, my point is simply that, in the case of desktop Linux, Jerusalem is here.

This is the year.

This is also the year where the definition of a desktop has changed. Apple changed it with the iPhone and, now, the iPad. Microsoft has failed to deliver in both these key areas. Linux has not.

Google gets the credit for that. As I noted yesterday Google Android has soaked up the excess demand for Internet hand-held devices that the iPhone left on the floor. My guess is that, once Chromium comes out, you’ll have the same experience there.

Linux has broken through because Google has the size to go toe-to-toe with either Microsoft or Apple, and push product through distribution. (Remember, there is a price lower than free.)

It’s the compatibility between Chromium and Android, based on Linux, which I think gives the old mouse-and-keyboard upright posture desktop Linux yet-another chance.

Linux Mint and Ubuntu are building the kind of simple-then-power relationship that will exist between Android and Chromium, and which existed in the past between Windows and Windows NT.

Mint offers simplicity and a full application suite. It abstracts all the complexity of the command line, much as Android and Chromium do. Even our own Jason Perlow likes it (and he is hard to please).

What’s still missing is the financial wherewithal to push this through the distribution channel. But with the success of Google as a patron for hand-held Linux, are Microsoft followers certain one can’t be found for the old-fashioned desktop?

My larger point is it doesn’t matter. Either Mint and Ubuntu will gain desktop traction or Google will simply bypass them.