September 25, 2009

Updates on the State of the Chill

Filed under: Berkman, Chilling Effects, DMCA, Internet — wseltzer @ 1:28 pm

With the help of Chilling Effects’s terrific new research associate, Rebecca Schoff, we’ve been updating the “Weather Reports” blog to provide timely updates on the climate for free expression online. Recent posts check in with the wild west of fair use, Veoh’s DMCA safe-harbor victory and some bites at the Apple. Add Chill weather RSS or follow @chillingeffects on twitter or identi.ca.

We’re also working behind the scenes to get takedown notices posted more quickly. In conjunction with Blogger, we’ve been working to help Bloggers get better information about DMCA notices demanding removal of material from their blogs, so they can determine whether to remove or edit the posts, or to counter-notify instead.

September 21, 2009

The Freedom to Innovate Without Permission

Filed under: FCC, innovation, networks, open — wseltzer @ 6:54 pm

In a speech this morning, widely heralded (and criticized) as a call for “network neutrality,” FCC Chairman Julius Genachowski: “Why has the Internet proved to be such a powerful engine for creativity, innovation, and economic growth? A big part of the answer traces back to one key decision by the Internet’s original architects: to make the Internet an open system.”

Now “open system” doesn’t mean anarchy. The Internet has rules, technical standards codified in the unassuming sounding “Requests for Comment.” As described by the author of RFC 1, Steve Crocker (How the Internet Got Its Rules), the RFCs were designed to help people coordinate activity, to build an interoperable network: “After all, everyone understood there was a practical value in choosing to do the same task in the same way. For example, if we wanted to move a file from one machine to another, and if you were to design the process one way, and I was to design it another, then anyone who wanted to talk to both of us would have to employ two distinct ways of doing the same thing.” By coordinating an open infrastructure, the Net’s architects left room for expansion at the edges.

While critics have been quick to call the statement and the rules it prefigures “government regulation,” Chairman Genachowski says “this is not about government regulation of the Internet. It’s about fair rules of the road,” (a phrase picked up by Commissioners Copps and Clyburn in their supporting statements). Like rules of the road, basic non-discrimination and transparency principles promote interoperability: As every driver and car manufacturer knows what to expect of the highways, every Internet user and application-developer should know what he or she can assume as substrate.

Yes, road rules constrain some innovation at the core — you can’t build a public road with braid-like traffic patterns where cars freely weave in and out in both directions, or with yellow stop signs and green “yield,” but you can still improve the pavement or road reflectors. The added predictability of a standard interface enables other more significant innovation at the edges — the Porsche, Prius, Smart, and Tesla can all drive on the same standard highway.

Most importantly, Chairman Genachowski shows he understands the option value of network openness — leaving room for the unexpected:

The Internet’s creators didn’t want the network architecture — or any single entity — to pick winners and losers. Because it might pick the wrong ones. Instead, the Internet’s open architecture pushes decision-making and intelligence to the edge of the network — to end users, to the cloud, to businesses of every size and in every sector of the economy, to creators and speakers across the country and around the globe. In the words of Tim Berners-Lee, the Internet is a “blank canvas” — allowing anyone to contribute and to innovate without permission.

As the Net’s core became more fixed since the days of RFC 1, it has enabled attachment of various devices and formats, some of which would become standards in their own right (HTTP, HTML) others of which would never really take off (VRML 3D modeling). We can’t pick winners, but we can build a field for contests worth winning.

Working through the details of the proposed FCC rules will be critical, and difficult, but the principles Genachowski offers for implementation provide a solid foundation.

September 17, 2009

Compelling Silliness: Register on Google Book Settlement

Filed under: code, copyright — wseltzer @ 4:03 pm

The House Judiciary Committee has been scheduling some interesting hearings lately, including one next week on ICANN policies: The Expansion of Top Level Domains and its Effects on Competition. Last week, they heard about Google Book Search:Competition and Commerce in Digital Books.

Perhaps the strangest reports out of last week’s hearing were those on the Register of Copyrights’s statement, in which she asserted that the settlement “is tantamount to creating a private compulsory license through the judiciary [and that] such decisions are the domain of Congress.” The Register urged that courts shouldn’t endorse “settlements that come so close to encroaching on the legislative function.”

Now while I suggested on my first read of the settlement that the registry and clearinghouse “look[ed] like private implementations of infrastructure you’d really expect government to provide,” government has thus far failed to do so (no Orphan Works legislation), while private actors have moved them much closer. That’s a reason to bemoan government’s pace and the capture of public copyright law by special-interest lobbying, perhaps, but not to stand in the way of private cooperation toward greater access.

The great absurdity in the Register’s complaint is to label the settlement a “compulsory license.” A compulsory license, in the few places they exist in copyright law, is mandatory on the copyright holder. A songwriter cannot object to a new arrangement and recording that does not “change the basic melody or fundamental character” of a previously recorded work — her only right is to recover the compulsory “cover” license fee or to negotiate a different arrangement. The Google settlement, by contrast, offers rights-holders options: the right to opt-out of the settlement entirely, leaving the defaults of copyright law in place, or the ability to participate in the settlement and request different treatment of their works. Authors need only step up and say something if they prefer copyright’s defaults to Google’s.

So while I’d love to see the settlement opened even further, to participation from other digitizers and other representatives of the public interest, this particular complaint from the Register strikes off. If government can’t facilitate access to accumulated human wisdom, it should get out of the way (while keeping watch for anticompetitive effects) while others do. Instead, the Register’s intervention here sounds like the petulant complaint of one not invited to the settlement table.

September 16, 2009

Software Patent Research in Boulder

Filed under: innovation, law, markets, patent — wseltzer @ 4:34 pm

I’ve moved to Boulder, Colorado, for a year with the Silicon Flatirons Center for Law, Technology, and Entrepreneurship at the University of Colorado. I’m here to research software patents and user innovation (and no, innovative methods of trolling aren’t quite what I think the Founders meant by “promote the progress of science and the useful arts.”)

Boulder at sunrise Boulder’s a particularly good place for this study, because along with its beautiful mountains and open spaces, it has an intense entrepreneurial community, with frequent New Tech Meetups, Ignites, and informal gatherings. Plenty of innovation, how much fueled or swamped by patent?

I’m particularly interested in the cases of strategic behavior, where a patent is used not to secure limited-time exclusivity for the developer bringing a product to market, but instead as a bargaining lever, to spread FUD, or to extract value by threat. Are these indirectly promoting progress, such as by providing a market for research investment, or do they just get in the way? If you’re in the area and thinking about these issues, please let me know!

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