Digital Copyright Canada

The recent legal dust-up between Oracle and Google has me engaging in a little self-criticism.

We were all very ready to condemn either side, even before we understood the issue. Paula and I leapt to the defense of open source. Others leapt to the conclusion that the suit would destroy open source and good riddance.

Neither is the case.

(Maybe nothing is as it appears. This is the logo of a popular southern California food blog. It just spoke to me as a statement about open source, and open source attitudes.)

Now it’s true that legal language is hard and deadlines are constant. When anything happens, we are all under enormous pressure to get something out, now, before someone else grabs our page views. And it’s best that we have a take, because heat is so good for powering the Internet machine.

But it turns out that Google didn’t use the GPL version of Java for Android. They used a proprietary version instead. Then they modified that version and distributed it, again not under the GPL.

So maybe Oracle had a case. Sometimes a commercial dispute is just a commercial dispute. There are no great philosophical issues at stake here, other than the fact that Oracle used patent claims in making its case.

It may be that last which got us all going. The Roberts Innovation Tax is already doing its dirty work. Patent trolls are multiplying like cockroaches. It’s just like the Obama Stimulus, except all it’s stimulating are waste and legal bills.

I am not making a political point here. (Please put those rants against the President away.) I’m saying we all have our own frames, our own assumptions of hero and villain, and our first instinct is always to respond in terms of that frame.

We close our minds, even in open source, and that’s a problem.

It’s easier in coding. Philosophical arguments tend to resolve themselves. Either the code works or not, either it has value or it doesn’t.

But all coders know colleagues who may be annoying, hard to work with, or just in over their heads. Getting around them in order to get the work done can lead to heavy drinking.

Unfortunately, in discussing issues of open source, right or wrong aren’t so clear as they are in code. Would that they were. It’s a lesson we should all remember next time news breaks. While writers might forget it, I hope you readers won’t.

Now that the old caldera.com pages are on Internet Archive again, thanks to SCO selling off the domain name, many interesting things are surfacing, and we find out why SCO tried to hide them for so long. They should have waited a little bit longer.

Eric Schmidt made some headlines last week when he predicted people will change their names in order to avoid their online past.

Let’s cut the man some slack. He was working before the Web was spun. Without that slack, it may be the dumbest thing said all year.

Suw Charman-Anderson responded with something almost as stupid. The Web’s not that smart.

Yes it is.

Google me today and you’ll get about 36,100 results. Bing has me 113,000 times. They’re all accurate because, thanks to a quirk of my German-Irish-Polish heritage, I’m the only one of me there is. (Dana’s etymology is Polish.)

My late friend Russell Shaw, by contrast, had his name on a brand-builder, a music composer, and a former football star, among others.

Point is, we’re all Google-able. Changing your name won’t help. Not being found is becoming almost as much a cause for suspicion as finding you said something stupid once upon a time.

And I have. Many times. I have a troll who loves reminding me of one such bit of intemperance. His aim is, simply, to discredit my work, which is what people fear when they say they have lost their privacy to the Web. They fear that one mistake will haunt them forever.

The best advice I ever got in journalism school came in an early lecture, in 1977. Live your life like you’re on TV, I was told. As a journalist you are a public figure. I have not always lived up to that charge well, but I have remembered it, and it has given me some important advice for anyone who must look anyone else in the eye in the age of the Web.

Forgive.

We are all fallible. We all screw up. We all say stupid things, and do stupid things. What matters is what we  are today, what I can do for you today.

In other words, look at the code, not the coder. And understand that just as they’re an open book to you, so you and your company are an open book to them.

Seek to build your credibility, every day, in every way you can. Contribute to good deeds, by coding if you can, by bug collecting or using beta code or by just writing if you can’t. And take that attitude into the world with you.

When we’re young, we’re young. When we’re angry, we act out. When we’re tempted, we may fall. In some jobs we may fail. And the Web never forgets.

But we’re not the Web. That’s our advantage. We can forgive, we can balance our judgments of one another, we can change our minds, we can change. Each day is a new opportunity — sounds corny but I really believe it.

The problem is not the Web’s lack of anonymity. The problem is our attitude toward living as though we’re on TV, because sometimes you’re going to be the windshield, and sometimes the bug.

Living in an open book can be liberating. At least you’re being read.

Late on Saturday afternoon I was lying on a soft, mossy slope in the sun, looking up at the clouds and thinking of not much of anything. I had gotten so far into the whole thing of moving no muscles except my eyes, that I didn't even turn my head to look when someone came and lay down on the ground next to me, even though it was so close that I could feel all the moss along that side of my body depress slightly with the weight. When she spoke I recognized the voice as Taylor's. "What are you doing?"

But there's more. Microsoft is fighting to keep certain documents it alleges the judge in the district court didn't base his ruling on from being considered by the court of appeals. Here's the Microsoft Motion to Strike [PDF]. The full title is Motion to Strike Certain Exhibits from the Joint Appendix and Any References to Such Documents in Novell's Brief. Microsoft is relying in part on some cases Novell already pointed out to Microsoft don't apply, as I'll show you. [Update: One of the exhibits is actually marked as filed under seal. So we've now split them apart.] [Update 2: We checked, and the filing is now unsealed and is part of the public record, so I've added it to the list.]

But the case is interesting also on a tech level, because, in my view, the judge doesn't understand fully the difference between an operating system and an application. He ruled that WordPerfect is, under the relevant APA, an associated DOS operating system product and hence covered by the DR DOS litigation Caldera brought successfully against Microsoft. Because he lumped them together in a jujitsu way, accepting Microsoft's position, he found for Microsoft on summary judgment.

That reminds me, because Groklaw is now in the Library of Congress's digital collection, accessible if you visit the library, I have been taking time to try to fix older broken links, and I just finished updating the links in the US v. Microsoft litigation section, part of our permanent page on Microsoft Litigation, to include the famous video moment, the doctored video. There are links now to Ed Felten's testimony [PDF] that you could indeed uninstall IE in Windows 98, the trial exhibits, the depositions used, and direct testimony transcripts. including the transcript of the cross examination of Microsoft's Jim Allchin by David Boies, the famous Perry Mason moment. The transcript is, ironically enough, in Microsoft's .doc format, but if you don't have Microsoft Windows and don't wish to buy it, you can download OpenOffice.org for free, as in beer and as in freedom, thanks in part to all the antitrust rulings in the US and the EU and then thanks to all the volunteers who worked so hard to give us a viable alternative, and you'll be able to read it just fine.

If you notice any broken links, particularly on our permanent pages, please let me know. Being included in the Library of Congress is a great honor that I feel deeply, and when I disappear on the weekends somewhat these days, it's because I'm feeling that responsibility, knowing our work is available to researchers there who might not otherwise know about Groklaw, and I want to be sure our historical collections are as accurate as human limitations and the constantly changing Internet allow, so they are optimally useful. Also, I continue to work on completing our collection of exhibits in the Comes v. Microsoft antitrust case, some of which turned out to be relevant in the Novell v. Microsoft case, so if you'd like to help finish up, just go here, find any numbered PDF that isn't described or available in full as text, and do either a description or a transcript following the general style you see others have used, and then post what you find in plain text, ideally with HTML done and showing, or email me by clicking on the envelope icon. Thank you.

But let's take a look at the latest dispute in the Novell v. Microsoft appeal.

About four months ago, Ed Felten blogged about a research paper in which Hari Prasad, Rop Gonggrijp, and I detailed serious security flaws in India's electronic voting machines. Indian election authorities have repeatedly claimed that the machines are "tamperproof," but we demonstrated important vulnerabilities by studying a machine provided by an anonymous source.

The story took a disturbing turn a little over 24 hours ago, when my coauthor Hari Prasad was arrested by Indian authorities demanding to know the identity of that source.

At 5:30 Saturday morning, about ten police officers arrived at Hari's home in Hyderabad. They questioned him about where he got the machine we studied, and at around 8 a.m. they placed him under arrest and proceeded to drive him to Mumbai, a 14 hour journey.

The police did not state a specific charge at the time of the arrest, but it appears to be a politically motivated attempt to uncover our anonymous source. The arresting officers told Hari that they were under "pressure [from] the top," and that he would be left alone if he would reveal the source's identity.

Hari was allowed to use his cell phone for a time, and I spoke with him as he was being driven by the police to Mumbai:

India uses paperless electronic voting machines nationwide, and the Election Commission of India, the country's highest election authority, has often stated that the machines are "perfect" and "fully tamper-proof." Despite widespread reports of election irregularities and suspicions of electronic fraud, the Election Commission has never permitted security researchers to complete an independent evaluation nor allowed the public to learn crucial technical details of the machines' inner workings. Hari and others in India repeatedly offered to collaborate with the Election Commission to better understand the security of the machines, but they were not permitted to complete a serious review.

Then, in February of this year, an anonymous source approached Hari and offered a machine for him to study. This source requested anonymity, and we have honored this request. We have every reason to believe that the source had lawful access to the machine and made it available for scientific study as a matter of conscience, out of concern over potential security problems.

Later in February, Rop Gonggrijp and I joined Hari in Hyderabad and conducted a detailed security review of the machine. We discovered that, far from being tamperproof, it suffers from a number of weaknesses. There are many ways that dishonest election insiders or other criminals with physical access could tamper with the machines to change election results. We illustrated two ways that this could happen by constructing working demonstration attacks and detailed these findings in a research paper, Security Analysis of India's Electronic Voting Machines. The paper recently completed peer review and will appear at the ACM Computer and Communications Security conference in October.

Our work has produced a hot debate in India. Many commentators have called for the machines to be scrapped, and 16 political parties representing almost half of the Indian parliament have expressed serious concerns about the use of electronic voting.

Earlier this month at EVT/WOTE, the leading international workshop for electronic voting research, two representatives from the Election Commission of India joined in a panel discussion with Narasimha Rao, a prominent Indian electronic voting critic, and me. (I will blog more about the panel in coming days.) After listening to the two sides argue over the security of India's voting machines, 28 leading experts in attendance signed a letter to the Election Commission stating that "India’s [electronic voting machines] do not today provide security, verifiability, or transparency adequate for confidence in election results."

Nevertheless, the Election Commission continues to deny that there is a security problem. Just a few days ago, Chief Election Commissioner S.Y. Quraishi told reporters that the machines "are practically totally tamper proof."

This brings us to today's arrest. Hari is spending Saturday night in a jail cell, and he told me he expects to be interrogated by the authorities in the morning. Hari has retained a lawyer, who will be flying to Mumbai in the next few hours and who hopes to be able to obtain bail within days. Hari seemed composed when I spoke to him, but he expressed great concern for his wife and children, as well as for the effect his arrest might have on other researchers who might consider studying electronic voting in India.

If any good has come from this, it's that there has been an outpouring of support for Hari. He has received positive messages from people all over India.

Unfortunately, the entire issue distracts from the primary problem: India's electronic voting machines have fundamental security flaws, and do not provide the transparency necessary for voters to have confidence in elections. To fix these problems, the Election Commission will need help from India's technical community. Arresting and interrogating a key member of that community is enormously counterproductive.

—
Professor J. Alex Halderman is a computer scientist at the University of Michigan.

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Round ten of the Anti-Counterfeiting Trade Agreement negotiations in Washington concluded on Friday with countries confirming progress on all fronts and hopes to reach agreement on all remaining substantive issues at the next round in negotiations in Japan in late September.  While the joint statement is not yet online, Reuters reports that the U.S. believes the remaining issues - including the U.S. - E.U. divide over geographical indications - could be resolved at the next meeting.  The statement repeats earlier assurances about the impact on fundamental rights, cross-border transit of generic medicines, and iPod searching border guards.

It also appears that there was again no agreement on releasing the draft text, with the U.S. presumably the ongoing obstacle.  Instead, countries pledge to release the final text before deciding to sign it.  Yet releasing the text once negotiations are concluded is too late.  Countries always have the option of not signing an agreement (or later not implementing), but once the treaty is concluded it will be too late to make substantive changes.  The decision to block release of the draft text is a serious blow to ACTA transparency just as the agreement appears to be nearing conclusion.

Update: The official joint statement has now been posted. It confirms that the draft text following this round will not be released.

Professor Kaplan, who served as justice for the Massachusetts Supreme Judicial Court and was the Royall Professor of Law Emeritus at Harvard Law, passed away two days ago. It seems a little eerie; his classic book, An Unhurried View of COPYRIGHT (1967), was lying open on my desk when I came upon his obituary. I had returned to the little book specifically to write this week’s post. Perspective is needed for the current Canadian debate and Professor Kaplan’s work came to mind.

In the foreword of the book, then-Dean of Faculty of Law for Columbia University, William Warren wrote:

The timeliness of Professor Kaplan’s analysis of the law of copyright in light of technological and social developments is underscored by current efforts, begun some ten years ago, by the Register of Copyrights, to accomplish a sweeping revision of our Copyright Law … Even more recently, new aids to dissemination including the growth of computer technology, have magnified the problem of control in securing “exclusive rights,” and increased the numbers of claimants for protection.
…
Professor Kaplan’s emphasis on the desirability of greater freedom of dissemination of ideas is especially significant because it is at odds with the strong contemporary trend towards more restrictive and longer protection of the exclusive rights of writers and composers. In addressing himself to the challenging issues involved in the protection of literary property with clarity, erudition, and wit, he renders a special service by questioning some of the timeworn assumptions in the copyright field.

An Unhurried View of COPYRIGHT was one of the first books on copyright that I found. I had no knowledge of the law and no recognition of the name “Benjamin Kaplan.” I read his book, all the while completely unaware of his history as a jurist and as a copyright expert. What had drawn me to the book was its modest size and accessible prose. But the unpretentious demeanor of the book should not be confused for a lack of rigour – Professor’s Kaplan talent was such that he could convey the intricacies of copyright to those outside his discipline.

Professor Kaplan is quoted, as saying “I had no thought of a career … If I had, I might have become a reporter or something to do with writing.’’ Speaking of the challenge in explaining a case’s outcome, he said it requires a judge to “explain it in a way that satisfies not only the Bar and the specialists but also the general intelligent public. There is not much difference in the end between judging and teaching. The job of the judge, like that of the teacher, is to instruct, to educate.”

BTW: This theme of accessible language is present in Canadian courts as well. Former Canadian Supreme Court Justice Right Honourable Robert George Brian Dickson (1916-1998) was noted for the clarity of his writing. I remember reading years ago that Justice Dickson was the pioneer in making our high court decisions readable. After sifting through a heap of old newspaper clippings I found the article: “Doing the write thing,” by Richard Blackwell for the Globe and Mail. (A further hunt through Google puts the date at 5 November 2005). Dickson was keenly aware that the nature of the disputes that reached the Supreme Court had relevance to large segments of the Canadian population and thus should be comprehensible.

Coming back to Professor Kaplan’s wisdom, the last pages from An Unhurried View of COPYRIGHT are prescient. He speaks of a “bedtime story or pipedream which you are at perfect liberty to disbelieve.” That pipedream takes form as:

… linked or integrated systems of networks of computers capable of storing faithful simulacra of the entire treasure of accumulated knowledge and artistic production of past ages and of taking into store new intelligence of all sorts as produced. The system will have a prodigious capacity for manipulating the store in useful ways, for selecting portions of it upon call and transmitting them to any distance, where they will be converted as desired to forms directly or indirectly cognizable … (p.119)

At the end he suggests:

Probably the law of the future will lose patience rather quickly with the mere idiosyncratic withholding of access. But I should hope there will be play for the humane development of the “moral rights” of authors to prevent abuses in the exploitation of their creations. This will be especially important if copyright itself recedes as a significant control … It may appear sensible to displace copyright and substitute other, perhaps more direct, encouragements to original production. We may in any case expect legislators of the future to regard copyright as only one among a number of expedients for stimulating creativity. (p.120-122).

In a companion piece, Bryan Marquard of the Boston Globe writes: “Those fortunate enough to sit in his classrooms at Harvard Law School, however, had the greatest proximity to a professor who, along with the subject at hand, taught them how to write, how to think, how to love language.” Benjamin Kaplan died August 18, 2010 from pneumonia. He is survived by a son, daughter, grandchildren and great-grandchildren. He was 99 years old.

Saturday morning update:
Last night I kept wondering about the work of Felicia Lamport, Professor Kaplan’s late wife. As described in some of the links above, she was a well-known poet and satirist. Yet I had a feeling that I had seen her work in a different context. This morning I found it: Heteronyms!! This piece was originally published in the Smithsonian Magazine in 1988.

So this is Cahn's omnibus reply to them all, with some points regarding each objection. He still wants the sale to go forward, and the hearing on this will be Monday at 3 PM, so I hope some of you can go! The schedule for the day is filed as well, with all the details.

It is common for market laggards to go open source. It is less common for market leaders to do so.

Thus we need to celebrate the Affero GPL 3.0 version of Urbi, software that powers (among others) the Segway RMP and Lego Mindstorm.

The software runs under Linux, Windows, or real time operating systems. The site has instructions for adapting the software to existing robots that were not designed around it.

The head of the French-based producer of Urbi, Gostai founder Jean-Christophe Baillie, made the announcement back in May at the IEEE Conference on Robotics and Automation (ICRA) in Anchorage, Alaska, where Gostai was a gold sponsor.

Gostai isn’t putting all its software under the Affero GPL. It also produces a suite of graphical programming tools for robotics called Gostai Studio, an RTC interface for Urbi called GostaiRTC, and the GostaiNet cloud computing architecture for robotics.

Perhaps the most interesting of these is GostaiNet, which allows a number of robots to be controlled remotely from a cloud cluster. All you need are robots equipped with camera, microphone and speaker, and a WiFi router, and you can build your own robot army to take over the living room.

Why go open source? To help create compatibility among robots, simply the creation of programs and behaviors, and to extend Urbi into mainstream computing, in parallel and event-driven applications with multiple agents.