Hombros de Gigantes (Shoulders of Giants) » Legal

Open Source Licensing based on Patents rather than Copyright

Jens Hardings — Thu, 17 Apr 2008 15:53:47 +0000

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.

As Larry Rosen puts it: “Free for Open Source, everyone else pays”. Who would they pay? Only those who own the patents necessary to use the software.

If, and only if, the granting of a patent implies a real technological achievement, this actually makes sense. Those who contribute something fundamental and far from trivial may gain interesting profits.

However, let us look at the other side of the coin: the potential contributors to the open source project. They will have less incentives to involve themselves in improving an existing software if they do not get the same ability to decide what can be done to the resulting copyrighted work. This is not a problem as long as the overall incentives are enough for them to participate. The question is: is it? In what circumstances will it be enough, when would it not be?

On the other hand, patents are far more limited in time compared to copyrights, which could be a (wrong but useful) way to correct the far exceeding time frames in force for copyright. Any licensing scheme based exclusively on patents would be quite interesting in this regard.

But from a user’s perspective, it is quite unclear which patents are needed to use a certain software, creating some sort of uncertainty. With copyright, you know exactly and can be certain which code is included. No one can assert claims later on because you needed some code to get it to work: you would know because the software would not be working.

While any person or company may state claims on which patents they consider necessary to license a certain software, new claims may arrive later on, on behalf of any party, which might or might not have licensed the software to third parties. Some questions seem necessary to be asked: Is it necessary to get a copy of the software from every licensor who offers the software, just to be sure I have permission from everyone’s potential patents? In any case, this would not impede any third party from making claims on the software for patents not previously mentioned nor licensed under the open source license.

Whatever the case, for this scheme to work it is necessary to first making sure that the initial assumptions are met: patents should only be granted to specific, non trivial (or rather only to really amazing) advances in technologies. This is currently not true, and even if all participants agree on their own to follow the best intentioned guidelines, any third party with a broad, trivial or otherwise dumb patent could make claims that would hurt this line of development.

However, the actual license that implements the ideas of Larry Rosen, the Open Software License (OSLv3), actually imposes the same principle of retribution (copyleft) on the copyrighted source code. Thus, the original author may not take a modified version and distribute it under a proprietary license. What the original author may do is to distribute the modified version under the same license, say OSLv3, and additionally provide permission to use the patents under a different license. This would allow a third party, who receives the copyright permissions from the OSLv3 and additional patent rights, to create a proprietary version of the software, but not to distribute it. I would find it far more interesting to use the patent licensing instead of the copyright licensing, and not in addition as is done in the OSLv3. And I repeat, all of this provided that we first fix the patenting system and after such a fix software patents do make sense, which is far from clear right now.

Intellectual Property or Exclusion Rights?

Jens Hardings — Wed, 15 Nov 2006 13:58:57 +0000

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.
Sure, it does not sound the same when you talk about limitations to intellectual property than about limitations on exclusion rights. In the first case, we would naturally feel compelled to reject any limitation on a protection and instead increase the protection as far as we can, right? if there is something in need of protection, why would we take it away? In the second case, we would feel inclined to limit the exclusion rights, because to exclude everybody from using or doing something requires strong and persuasive arguments. This is also the reason why the principles justifying exclusion right have been largely forgotten at WIPO and they now just try to increase the “protection” offered, no matter what the consequences or whether the initial goals are being met or even come closer.
I will stop using the term “Intellectual Property” wherever possible and replace it with the term “Exclusion Rights” which describes the grouped legal constructs more accurately.

Killing domain names as means to enforce court rulings

Jens Hardings — Thu, 12 Oct 2006 16:11:12 +0000

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:

Is it appropriate under U.S. law for the judge to do this?

If the spamhaus.org is revoked, how will spamhaus and its users respond?

If U.S. judges can revoke domain name registrations, what are the international implications?

As for question 1, I reserve my opinions. The important fact is that, however small, there is a chance that a judge will eventually rule that some domain name has to disappear. So let us just assume that it might happen and continue with the other two. My bet i: there would be a proliferation in the usage of alternative root servers for the Domain Name System (DNS), probably lead by Spamhaus and its users. ICANN would loose its position, which is fragile at best. This would have a high cost for all Internet users (see RFC 2826 for details), as it would make the ‘Net a less reliable place.

You might think of it as a social or political revolution, but in this case, as in many others, there would be no winners, we would all loose to some extent. So, while accepting a loss just to make someone else loose more is no recommendable practice, my intuition says that it’s precisely what would happen in this case. I assume that is what Felten is thinking when he writes:

The result wouldn’t be pretty. As I’ve written before, ICANN is far from perfect but the alternatives could be a lot worse.

Putting money where the security is: Liability

Jens Hardings — Thu, 07 Sep 2006 15:48:38 +0000

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?

Jens Hardings — Fri, 18 Aug 2006 20:46:04 +0000

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.

Basically, people are used to make things in certain way. The problem DRM poses is that it has the potential to force a change in the way people can do things, without ever telling anybody about it until it is too late. This is why the “trusted computing” has been rephrased as “treacherous computing”: it effectively deceipts the general public into beleiving what it is told (better quality of some “content”) as being the only consequences of the new technologies. But the most important characteristics are kept quiet and do not surface until the users have already made their choices, the market has accepted some technology under false premises and there is no turning back.

In order to avoid this treacherous method of forcing certain technologies to unsuspecting users, the users should have all of the information before choosing, which is a very basic requirement by the way. The steps to force this could be the following. In order to distribute a device that enforces DRM, it is necessary for the vendor to:

inform exactly and in detail how the DRM solution will work and what the consequences are for end users. (specification)
provide ways to verify reliably that the devices effectively work exactly as described in the specification. The best way to do so would be to make the source code available and provide a way to compile the source into the binary that is effectively distributed along with the devices.
allow the user to keep the old specification or override (circumvent) the DRM when a change is made to the original specification.

Chile’s schizophrenia regarding copyrights and other laws

Jens Hardings — Wed, 02 Aug 2006 22:34:07 +0000

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

Jens Hardings — Fri, 28 Jul 2006 19:12:04 +0000

So, 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:

“However, the fact that a key is generated based on the object code of the work or is present in hardware that limits its use does not alter the requirement to include it in the Corresponding Source.”

I wonder what this implies. Let’s take The GIMP as an example, as it is a useful program, not implementing any DRM schemes and working on the Microsoft Windows platform. Suppose that the GIMP is available under GPLv3 and keeps to be compatible with the MS-Windows platform. What if the next version of MS-Windows implements a DRM scheme in which an application has to be signed before it may access a certain file? This would imply a key generated based on the object code, and thus somebody should make the key available. The question is: who? Apparently, the people distributing (conveying according to the new wording in GPLv3 beta 2) the code. So, as these people have nothing to do with the release of a new MS-Windows version, how on earth are they supposed to distribute the key? Until the existence of that new version, everyting worked smoothly. Now, because of some action of a third party, The GIMP can no longer be redistributed, because the Corresponding Source is impossible to be made available without the collaboration of somebody not related at all (and, probably interested in avoiding the availability of The GIMP)? And by way of the “Freedom or death” clause, if one cannot guarantee every right stated in the GPL, the software cannot be conveyed anymore, to nobody. That just doesn’t make sense to me. Seems to me like the perfect denial-of-service activity in the software development field: create a new feature on a system, and magically it makes some competing software illegal.

If, on the other hand, the case mentioned above resolves to The Gimp being available to anybody, including the ones who use that new DRM implementing MS-Windows version, then the fight against DRM is lost. Because the GIMP will then be subject to the DRM rules and the GPLv3 would have nothing to say against it. In the case of the TiVo, it would not be possible to distribute something which is GPLv3′d and prohibiting the system to run, but only because the system is conveyed as a unit. If the hardware plus the DRM-enabling components (hardware plus software) is distributed by some different party, either we have the case in the previous paragraph, or the GPLv3 would not avoid tivoization. Both outcomes are unacceptable for a free software license that intends to avoid tivoization.

I sympathize with the opponents of DRM technologies. The motivation for them is mainly to extend the established (and in many ways already too wide) rights by adding a technological measure. It doesn’t seem right to use technology to narrow even more the usage you can make of information, and the result is unfair, benefiting the powerful over the weak and/or scattered ones.However, it also doesn’t seem right to impose an ethical view by the usage of software, through the licensing of that software. It would be OK to keep the freedom to use a certain software (avoiding tivoization as Stallman puts it) and thus avoid DRM for that case. But are we certain we aren’t shooting ourselves in the foot?

The same argument over and over

Jens Hardings — Fri, 23 Jun 2006 21:35:38 +0000

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?

Jens Hardings — Fri, 26 May 2006 16:22:02 +0000

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.

Jalisco

Jens Hardings — Tue, 02 May 2006 15:47:18 +0000

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.