Karsten on Free Software

Just arrived in Geneva today. The third part of the “Intersessional Intergovernmental Meeting on a Development Agenda for WIPO” (aka IIM/3) is due to start on Wednesday, July 20. This is the last bit of time officially assigned to the question if WIPO should start to seriously consider development issues when watching over copyright, patents and trademarks.

At the last meeting (IIM/2) a month ago, the delegates agreed on a list of items to be discussed, after the rich countries had played for time until it became too obvious. If these countries had their way, they would simply go on praising the current system, pointing to the size of their GDP and other benchmarks of wealth as a supposed proof that restrictive handling of copyrights, patents and trademarks makes a country rich more or less by itself.

In the process, they are likely to omit the insignificant fact that they only installed strict protection of those limited monopolies after getting rich. The system as it is conserves the status quo, and the rich countries have no incentive to change it. Neither does Big Business.

What will happen during this meeting? I would like to make an uninformed guess today. In my opinion, Brasil, Argentina and India will be pushing forward the discussion on a Development Agenda, while the rich countries will keep dragging their feet. They will also have some small, more-or-less developing country (last time it was Bahrain, before that Sudan) acting as their proxy, bringing in a statement that sounds nice, but just says “Let’s leave things as they are”.

Since this is a political process, the outcome will be a compromise of some sort; but I can impossibly guess what that will be. The traditionalist position still is “Let’s make this disappear in some committee”.

The Friends of Development would like to establish an independent WIPO evaluation and research office (WERO) that would actually bring some degree of transparency to WIPO’s work, especially to technical assistance. Not only are there certain hesitations about the notion of transparency; this would also cost money. Although this money, and much more, could probably be gained from economic growth stimulated by intelligent application of limited monopolies on knowledge, the rich countries seem somewhat hesitant about it.

Now I would like to provide you with the links to the documents that will be discussed in this meeting. However, I am sitting in a basement with no internet connection. To post this entry, I will have to sit on the stairs of Geneva’s cheapest hostel, with drunken backpackers staggering by. Not exactly a good research environment. So please try your luck at www.wipo.int. There’s a “documents” link somewhere.

Found an interesting bit of news on rotten.com: A certain Professor Landsburg of the University of Rochester has calculated the economic value of imposing the death penalty on hackers (or, more exactly, crackers; Mr Landsburg does not bother with such fine distinctions).

There is a NY Times article (use Bugmenot if you don’t want to create an account) mentioning this. It would be decidedly more pleasant to read if the author was not suffering from such a distinct foot fetish. Quote:

Professor Landsburg, an economist at the University of Rochester, has calculated the relative value to society of executing murderers and hackers. By using studies estimating the deterrent value of capital punishment, he figures that executing one murderer yields at most $100 million in social benefits.

The benefits of executing a hacker would be greater, he argues, because the social costs of hacking are estimated to be so much higher: $50 billion per year. Deterring a mere one-fifth of 1 percent of those crimes – one in 500 hackers – would save society $100 million. And Professor Landsburg believes that a lot more than one in 500 hackers would be deterred by the sight of a colleague on death row.

Having read this, I found comfort in the joys of the empirical: An entry on Slashdot points to a CNN report that says one third of all studies are nonsense. For said third, look no further.

The software patent directive’s dead body is not quite cold yet, as another beast is raising its head. It goes by the name of “Proposal For EU Directive on criminal measures aimed at ensuring the enforcement of intellectual property rights”.

On the face of it, this is a proposal for a directive which will impose harsher penalties for counterfeiting and “piracy”. The reasons given for this are that these practices are penalised too lightly, that they are hurting the economy, and that they are often connected to organised crime.

This is only a draft, of course, but quite a thorough one already. What I don’t like about it is this: The proposal suffers from over-simplification and the fuzziness of the term “intellectual property”: There is no specific reference to the legislation infringed. What is it? Copyright? Patents? Trademarks? It just lumps all of them into one. It is seven articles long, of which only Arts. 2, 3 and 4 actually refer to the matter. What will happen to the infinitely more complex and refined legislation of member states? By making matters look so simple, the proposal reinforces the erroneous belief that a limited monopoly on ideas, such as copyright, is in fact a natural right. Consequently, the proposal makes no mention of any consideration of public interest or fair use. The reasoning for why this directive is needed is worded right out of the rightsholders lobby’s vocabulary. The reference to organised crime is a classic, as is the notion behind the text that every illegal copy means a lost sale. Article 4 of an “Explanatory Memorandum” calls for “Joint Investigation Teams”, in which the rightsholders cooperate with prosecuters. Considering it is in their best interest to do so anyway, what additional powers would this instrument give to the rightsholders?

And then, there is the same question that had to be asked for the software patents directive: This area is already protected by existing laws. Why do we need this directive? This duplication of legislation is somewhat ominous.

Keep your eyes open. This does not smell good, somehow.

Weird copyright decision by a German court today. The opera “Montezuma” by Antonio Vivaldi (1678-1741) was long believed to be lost. Recently, the score has been discovered in the archives of the “Sing-Akademie zu Berlin”.

The academy now successfully stopped a German music festival from putting on the opera, which was first performed in 1733 and was believed lost thereafter. The academy’s claim: It inherited the work, and therefore has the exclusive right to profit from it.

Functionally, this is a pretty juicy extension of the usual “author’s life plus 70 years” copyright. I am not exactly sure this contributes a lot to the public benefit, for which copyright, after all, is originally intended.

Another note: For those of you into music and Free Software, there’s a nice interview about the AGNULA project with Andrea Glorioso on CodexFlores.ch.

And everyone thought that it would finally be over. When the European parliament rejected the Directive on Computer-Implemented Inventions (aka “the software patents directive”) minutes ago with 648 of 680 votes, it dashed not only the hopes of pro-swpat-lobby groups such as EICTA of finally getting their way by inviting enough bureaucrats for dinner; the decision will also keep hundreds, if not thousands, of pro-freedom activists (such as the FFII people) from going back to their day jobs. The massive lobby-war drags on.

It is a great victory for the freedom fighters, and for the European people, to have prevented the adoption of a bad directive, which was the perspective just a few days ago. This was prevented by lots of behind-the-scenes last minute diplomacy, as well as by public action and publications.

But this outcome really is only second-best to the ideal solution: A good directive that definitely prohibits patents on mere ideas and algorithms, keeping open the path for innovation in Europe. What killed the directive in its current form was not a resounding “no” by parliament to the idea of software patents. Rather, it was the fact that the big conservative EPP block swung around to rejection when they saw that they would not get as much patentability as they wanted.

What does this imply for the future? Better keep those “No Software Patents” banners on your websites. The topic will be back (although probably not before the summer is over). One problem is that the status quo persists. The European Patent Office (EPO) will go on granting non-enforcable patents on anything that looks like two bytes joined together, just like it has been until now. Although this practice goes against declared EU policy, it has done so in the past, and there are no changes to prevent it from doing so in the future. The FSFE has a suggestion there.

As for the legislative level: You think that the process suffered from a democracy deficit until now? It might get worse. Now that the official route for legalising software patents in Europe is closed, the lobbying efforts will shift to the dark back alleys of Brussels. The public eye will find it hard to follow, as will underfunded public interest NGOs, as negotiations shift from official meeting rooms into expensive restaurants.

Nonetheless, this is a pretty good day for all of us. At least, worse has been prevented. But we will have to watch out. If we don’t, the interests of a few big companies, not all of them entirely rooted in Europe, might yet prevail over the the needs of the European people.

But I don’t mean to spoil the party. Hey, after all this shows once more that simple people, acting in the public interest and in coordination with each other, can beat back multi-million-dollar funded lobbyists. All is not lost. If we keep at it, we might even get the democratic processes in the EU working!

The software patent battle in Brussels is at full force, and we are feeling the strain. Here’s an interesting quote I read a few days ago in the Financial Times, which comments on the decision by the European parliament’s legislative committee to recommend adopting the Commission’s pro-software patents text:

Mark MacGann, president of Eicta, an association of technology groups that support patents, said: “European industry is satisfied with the outcome of today’s vote. We will now urge the entire parliament to follow suit. It is a pretty good result.”

Eicta’s members include companies such as EADS, Intel, Microsoft, Motorola, Nokia, Philips, SAP, Siemens, Sony and Sun.

What a most interesting understanding of European Industry. Not only did Mr MacGann nonchalantly leave out the entire field of small and medium enterprises, which provide the bulk of Europe’s economic activity, especially in the software sector.

It is also news to me that Intel, Microsoft, Motorola, Sony and Sun should be counted as “European”. I’m not blowing the nationalist tune here; it’s just a question of where these companies employ people and pay taxes.

But all in all, I believe we should be thankful to EICTA for clarifying this. After all, the members of the European parliament should know in whose interest they are making their decisions.

The question of why software patents are not such a good idea has been discussed to such a degree that it is hard for people becoming newly interested in the issue to gain a basic understanding.

Though not being exactly new (April 2005), this video from ffii.org gives a great introduction. Enjoy!

So the Grokster case is decided: The US Supreme Court says that companies that make filesharing software and run a filesharing network are to be held responsible for copyright infringements by their users. This is a fundamental change in direction from the famous Betamax case, where the same court ruled that VCR makers were not responsible for what buyers did with the machines.

As usual, my favourite German blog netzpolitik.org provides a summary and links. A somewhat inconclusive overview can be found at the ever less impressive wired.com. Better tech information is usually provided by The Register. The Electronic Frontier Foundation has not only a comment on the decision, but also a MGM v. Grokster case page. Tons of links everywhere, of course.

By extension, this might impact pretty much any manufacturing activity in the US. The court said that Grokster was responsible for its user’s copyright infringements because its software was geared mainly towards making such things possible. Justice David Souter wrote: “We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”

This argumentative pattern does not only hold interesting implications for, say, firearms makers. It also subjects people and companies developing tools for sharing knowledge to a complicated test of intentions. In short, this is a resounding victory for the big film and music companies. However, the verdict is unlikely to stop filesharing as such, but it definitely will give innovators a huge headache. Big media has the economy suffering to hang on to their outdated business models.

Finally I found a clean and easy way to convert those mp3 files I had ripped from my CDs onto my laptop (note the fair use) in those bad old Windows days to the free .ogg format. No more patent encumbered music formats for me. The mp32ogg package does just what its name says.

It’s a command line tool that could not be simpler to use. While I’m writing this, my machine does all this work in the background. Takes about five minutes for a full album of your average garden-variety .mp3 music. Just one minor caveat: This thing is so straightforward that it will simply convert any file in a directory to .ogg – be it a playlist or a cover picture.

Why didn’t I find this before? Probably never thought about it.

Manning the booth by day and rocking out with FSFE and friends by night, Linuxtag took me to my limits. A lot of people were interested in our work and the Fellowship. Reflecting the current status of the issue, software patents in Europe were also a focal point of interest.

Especially people running small or medium-sized Free Software companies were really worried. Ciaran O’Riordan, our permanent representative in Brussels, took a day off from the European parlament to check by. By now, he’s already on the train back.

The parties at night were really great. Reinhard had brought a guitar, Matthias had one as well, and soon the whole FSFE team – we probably had more people here than Microsoft – was singing and shouting. As I got thirsty in the process, I found it very difficult to wake up in the mornings. Pictures coming soon.

After this extremely busy week, I am looking forward to going home, seeing my girlfriend and relax for a few days.