Open Source Licensing based on Patents rather than Copyright

Posted in FLOSS, Legal at 12:53 pm by Jens Hardings

This is a very interesting proposal by Larry Rosen and Fred Popowich as explained in an interview on linux.com.

The consequences are interesting, particularly regarding dual licensing. One of the issues (whether it is a problem or a benefit depends on your point of view) regarding dual licensing is that the original licensor cannot embrace code from an external contributor, even if that code is available under the original license, and distribute it both under the original license and under the other, presumably proprietary, license. This is due to the original work of that external contributor being also covered by copyright, unless that contributor voluntarily and explicitly grants the right to re-license the contribution. This does not happen with patents, since the external contribution does not necessarily include any patented aspects.

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Intellectual Property or Exclusion Rights?

Posted in Legal, Terms at 10:58 am by Jens Hardings

I am sitting in a seminar dealing with promotion of access to knowledge, mainly through the use of open licenses that provide much more access then the minimum required by law. It has become more clear than ever yo me that the term “intellectual property” is very misleading.
Several arguments say that the term is basically propaganda, just as the term “piracy” is when applied to infringement to copyright and similar laws. But it should be enough to see how misleading it is to go and change it.
Several critics of the term suggest no alternative name for “Intellectual Property”, argumenting that there is no reason why you would have to group the several unconnected legal constructs (copyrights, patents, trademarks, industrial secrets) that form the group. I disagree. If you want to refer to all those legal constructs in a single name, you should just figure out what they have in common. It turns out all of them have something in common that is also very characteristic: they provide exclusion rights (whether they are justified or not). One single person gets the right to exclude everybody else to do or use something under certain circumstances.

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Killing domain names as means to enforce court rulings

Posted in Internet, Legal at 1:11 pm by Jens Hardings

Ed Felten asks interesting questions regarding the Spamhaus.org case. You can read his post for details, but basically, Spamhaus.org has ignored a ruling in which it should pay a plaintiff for damages and publish a declaration stating that it has erroneously published the plaintiff in its “spammers” lists. It might be possible that a court rules that Tucows (as the registrar managing the domain registration) and/or ICANN has to withdraw the name assignment of Spamhaus.org, so that the domain ceases to exist. Felten’s questions are:

  1. Is it appropriate under U.S. law for the judge to do this?
  2. If the spamhaus.org is revoked, how will spamhaus and its users respond?
  3. If U.S. judges can revoke domain name registrations, what are the international implications?

As for question 1, I reserve my opinions.

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Putting money where the security is: Liability

Posted in Efficiency, IT, Legal, Security at 12:48 pm by Jens Hardings

This article in Wired by Bruce Schneier gives another hint at what some people have been arguing for a long time: Liability for software vendors. It describes how fast an organization reacts when there is money in risk. In spite of the promise to focus on security after several worm breakouts with huge financial consequences for customers, the security has not been one of the most outstanding features for Microsoft lately. In Bruce’s words:

In the absence of regulation, software liability, or some other mechanism to make unpatched software costly for the vendor, “Patch Tuesday” is the best users are likely to get.


Last week, a hacker developed an application called FairUse4WM that strips the copy protection from Windows Media DRM 10 and 11 files.


So Microsoft wasted no time; it issued a patch three days after learning about the hack. There’s no month-long wait for copyright holders who rely on Microsoft’s DRM.

You can read more about this article on this blog entry.


What should DRM-related laws look like?

Posted in DRM, Legal at 5:46 pm by Jens Hardings

We have become used to think of DRM-related laws in terms of one-sided issues that consider only the publishers and completely ignore the general public as well as the potential authors of new material. The EUCD, DMCA and other implementations of the WIPO Performances and Phonograms Treaty.

Reading the articles on PRM as the next step by Ed Felten, about how the reasons put forward to justify DRM-related laws have shifted, I started reasoning about what such a law should look like. So, here I present some thoughts on what a law regarding DRM, that really considers the general public (society) and potential new authors, should look like.

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Chile’s schizophrenia regarding copyrights and other laws

Posted in Legal, State at 7:34 pm by Jens Hardings

Thiru Balasubramaniam writes an interesting entry about Public Domain and Open Standards.  The position of Chile is particularly interesting, since our delegate gave an impassioned defence of why WIPO should engage in further examination of proposals to “consider the protection of the public domain within WIPO’s normative processes” and to draw “up proposals and models for the protection and identification of, and access to, the contents of the public domain”. However, the laws governing the country do not consider such an agenda. The following are the main points:

  • There are no exceptions related to disability of certain users
  • There is no right to private copies
  • There is no specific exception for libraries
  • Exceptions for educational development are excessively restrictive
  • Right of illustration has been derogated
  • Right of quotation has been excessively restricted through a regulation

The details of this schizophrenia are explained in a public letter (spanish version also available). It is to hope that the face shown to the outside world will have an impact on how the law regulates the life inside the country. It is a step in the right direction to have this new speech, so at least somebody has the right intentions. Let us hope that somebody will prevail. At least that somebody has a lot of support on the part of civil society.


GPLv3 beta 2

Posted in DRM, FLOSS, GPLv3, Legal at 4:12 pm by Jens Hardings

GPLv3So, the second draft of the GPLv3 is out. Changes include a rephrasing of the anti-DRM aspects of the code. In fact, the wording DRM is not there anymore. As Richard Stallman has made it clear in his presentation at barcelona, the purpose of these clauses is to avoid the “tivoisation” of programs. That is, even if the source code of the GPL software is available, you cannot change some bit and trust it to be installed on the same hardware it was distributed with, and work. This is because you need a special key to do so, or the hardware will refuse to run the modified code.

If we assume as a fact that software enforcing DRM will exist in the future, I would rather like to have the code available, and being able to reproduce the compilation exactly as to generate the same binary that has been signed as “trusted”. That way, at least I would have enough information to choose whether I could trust the system enough or not, and this would set abuses on the part of publishers to a minimum. This does not mean that the code should be under the GPL, though. So up to this point there is really no problem.

There are some issues, though, where I’m not so sure about. One phrase in particular states:

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The same argument over and over

Posted in DRM, FUD, Legal at 6:35 pm by Jens Hardings

The Consumer Electronics Association (CEA) published an interesting ad in a Capitol Hill newspaper this week. It contains a few quotes of arguments that have been repeated over the time to oppose different technologies, and are basically the same we are hearing these days:

“I forsee a marked deterioration in American music…and a host of other injuries to music in its artistic manifestations, by virtue—or rather by vice—of the multiplication of the various music-reproducing machines…” -John Philip Sousa on the Player Piano (1906)

“The public will not buy songs that it can hear almost at will by a brief manipulation of the radio dials.” -Record Label Executive on FM Radio (1925)

“But now we are faced with a new and very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the videocassette recorder.” -MPAA on the VCR (1982)

“When the manufacturers hand the public a license to record at home…not only will the songwriter tie a noose around his neck, not only will there be no more records to tape [but] the innocent public will be made an accessory to the destruction of four industries.” -ASCAP on the Cassette Tape (1982)

Seen via El Diablo en los Detalles and Arstechnica.


Software Patents: definitively not welcome in Europe?

Posted in Legal at 1:22 pm by Jens Hardings

This comes as a surprise. In the last few years, the debate in Europe around the patentability of software had the European Commission arguing that it was necessary to legislate according to current practice of the European Patent Office (EPO), in a “harmonisation of the status quo”. The EPO should not be granting patents on software, however there are over 30.000 such patents already granted.

Finally the European Commission has ruled that the European Court of Justice (ECJ) can and should question the validity of patents granted by the EPO without following the rules set by the European Patent Convention. While this is not the final word on forbidding the granting of software patents in Europe, nor a solution to the problem, it is a first step in the right direction.
Read the press release of the FFII for more information.



Posted in Legal, Transparency at 12:47 pm by Jens Hardings

Question to Sony: Are you licensing or selling those songs?

Sony: It depends on who is asking. Are you an artist or a customer?

According to Yahoo! News (via BoingBoing), Sony is being sued for treating incomes due to internet download of songs as normal record sales rather than song licensing. This means that artists receive 4,25 cents per song instead of 30 cents. However, when a user downloads a song, the indications are the opposite: “you are buying a licence and thus not the same rights as in a normal record sale”.

Sounds a lot like the mexican saying “Jalisco nunca pierde, y cuando pierde, arrebata” (“Jalisco never looses, and when it looses, it seizes”). Some decision has to be made on which way it’s gonna be. Probably the contracts will be seized corrected to give 4,25 cents to artists on song licensing, or else Jalisco would loose.

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