June 4, 2008

Incipient Intellectual Property

Filed under: Internet, law, music — wseltzer @ 3:35 pm

We talk a lot about the ways intellectual property stifles innovation once it attaches — the patent thickets created when dozens of companies claim rights to parts of the same widget-process, the hindrance to free expression and commentary posed by copyright clams to political imagery or culture — but lately, I’ve been wondering about the burdens of incipient intellectual property: when the vague promise of some potential future IP right causes people to share less and develop less value than optimal.

Incipient intellectual property is the false promise that “you might be the next big star,” that keeps some artists from appreciating the intermediate audience-building possibilities of Creative Commons licenses. It’s the remote prospect of patent that keeps scientists from publishing early-stage findings or sharing with potential collaborators lest they statutorily bar themselves from patenting later.

Does the possibility of outsize exclusive benefits from the IP lottery blind people to the much greater shared benefits of openness?

May 20, 2008

Berkman@10, WebN.0, CFP

Filed under: events, law, networks — wseltzer @ 12:25 pm

Berkman@10 was wonderfully Twittered, Flickrd, and blogged, with technology enhancing the in-person connections.

Next stop, CFP.

May 14, 2008

Berkman@10: The Challenge of Openness

Filed under: law, networks — wseltzer @ 3:26 pm

Berkman@10As one of those who knew the Berkman Center before it was “Berkman,” I’m particularly pleased to be helping to celebrate its 10th Anniversary season.

When we launched “The Berkman Center for Internet & Society” in 1998, some wondered whether we were just talking about the “law of the horse,” but the intervening 10 years have shown us that horse has legs. The Internet’s distributed communication systems have taught us something new about speech, creativity, and culture — showing the economic flourishing of all these in a distributed, open network.

Berkman’s founding visionary, Charlie Nesson, recognized openness as a core principle early, and others have gradually caught on: freedom at the core means more opportunities to generate value elsewhere in the network. Free software supports better-specialized hardware, user-optimized development, and electronic commerce. Open-access non-discriminatory networks support both commerce and communities.

The challenge for the next 10 years will be to preserve that openness. Join us in person or online as we work to meet that challenge!

April 8, 2008

Scrabbling for Legal Rationalism: No Copyright for Games

Filed under: Chilling Effects, code, copyright, law — wseltzer @ 2:45 am

ScrabulousThe New York Times reports that RealNetworks has introduced an “authorized” version of “Scrabble by Mattel” to Facebook, in an effort to compete with the enormously popular Scrabulous. CNet is puzzled, in part because the “official” app is unavailable in the United States or Canada.

For those not yet hooked, Scrabulous has been providing a Facebook application that lets Facebook friends play the game of Scrabble online. If the game numbers increment sequentially, it has served more than 2 and a half million games, and claims 629,256 daily active users.

In January, BBC and others reported that the Scrabulous team and Facebook had received takedown demands from Hasbro and Mattel (the two companies divide worldwide rights to the Scrabble trademark). Months later, however, Scrabulous remains online, probably because the threats’ legal merits are murky: there are few rights to “a game” as such.

Three kinds of intellectual property might protect aspects of a game — patent, trademark, and copyright — but each has limits that leave plenty of room for imitators and emulators.

  • Patent: At its heart, a game like Scrabble is an idea or “method of operation,” a set of procedural rules. Those ideas might have been protected by patent, when they were new, useful (for entertainment), and non-obvious, but any patents on Scrabble, invented in 1938 would have since expired. So the patent Scrabble’s creator got
    U.S. Patent 2,752,158 in 1956, for “an apparatus designed to facilitate scoring procedures in connection with the playing of board games” is now in the public domain — we can all use its jagged-edged squares to facilitate scoring by point-value of the square on which a piece rests.

  • Trademark: Trademark protects distinctive source-identifying brands. This might be Hasbro/Mattel’s strongest claim, but it’s a narrowly scoped one. The trademark owner has the right to prevent others from using a mark in a manner likely to cause consumer confusion. Trademark protects only the brand, not the underlying game. So if “Scrabulous” were deemed likely to cause confusion about the source or sponsorship of the Facebook app, its owners would just have to change the name. Trademark can’t bar them from reintroducing the same game under a name such as “WordCross.”
  • Copyright. Copyright is the most frequently cited claim, and the most mistaken. Copyright protects expression, not ideas, and the statute explicitly excludes “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” The U.S. Copyright Office, which has presumably had to fend off scores of copyright seekers with game ideas, devotes a page to the subject, saying:

    The idea for a game is not protected by copyright. The same is true of the name or title given to the game and of the method or methods for playing it.

    Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.

    Some material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game, or the pictorial matter appearing on the gameboard or container, may be registrable.

    So the “methods of operation” — the rules of the game, should be uncopyrightable no matter how intricate. Their particular expression in an elegantly written manual may be protected, but another is free to extract the underlying ideas and rewrite the manual to describe an identically played game.

    Moreover, the board design for Scrabble contains only de minimis separable expression. The arrangement of double-letter and triple-word scores is part of the method of play — like tennis’s “if you cross the fault line while serving, the serve is no good,” it merges with the unprotectable idea. We need to use the same rules to interoperate (play a challenge game!), just as once Lotus popularized a set of shortcuts for spreadsheet menus, others needed — and were permitted — to use that functional command hierarchy.

    The coloration of Scrabble squares, while minimally expressive, also has a primarily functional purpose, to indicate the scoring. By contrast, a decorative board such as Candyland would have copyrightable expression — one could reproduce the rules without the fanciful lollipop woods. The Scrabble board looks more like the accounting ledger of Baker v. Selden, the 1879 case in which the Supreme Court denied copyright protection to an accounting method and the forms necessary to implement it.

    The Internet provides a host of new opportunities to reimplement classic games, without the barriers of physical distribution. As entrepreneurs rush to capitalize on the opportunies, they shouldn’t be scared off by vague legal threats. Hasbro and Mattel may have their trademark, but we all have the right to cross words.

  • April 1, 2008

    Who needs more computer security education?

    Filed under: law, networks — wseltzer @ 5:34 pm

    Berkman’s Stop Badware project just released a new study, in which they report the “paradox” that most users feel safe online, despite a rash of malefactors and potential mishaps:

    CAMBRIDGE, Mass., March 31, 2008 - Nearly 90 percent of Americans say they feel safe online despite the rising tide of spyware, phishing and other badware threatening Internet users, according to a new poll sponsored by StopBadware.org, the consumer protection initiative aimed at combating dangerous software.

    “What we have here is an Internet security paradox,” said Maxim Weinstein, who manages the StopBadware.org team at Harvard Law School’s Berkman Center for Internet & Society. “Americans see themselves as safe online, even as we see an ongoing trend of organized criminal elements using the Internet to target unsuspecting users.” Weinstein will testify at the Federal Trade Commission on April 1 about how to better educate users about the dangers of phishing, a deceptive practice responsible for $2.1 billion in identity theft damages last year, according to Consumer Reports.

    I wonder, though, do we think that mistaken feeling of safety is a bad thing? I don’t — I think it’s great that we have enough of a safety net that people who don’t have the technical competence to deal with PC security threats nonetheless are being generative and participatory. I don’t think we’d gain by scaring those Internet users, even through education. While malware problems are often compared to public health, we don’t have a solution that’s as easy and effective as one-time vaccination to make computer users safer.

    I’d suggest instead that social insurance and systematic efforts to prosecute criminal use of malware are better responses than demanding that individual Internet users pay attention, educate themselves, and stay vigilant against ever-mutating threats.

    March 7, 2008

    Air Force DMCA-Bombs YouTube

    Filed under: Add new tag, Chilling Effects, DMCA, law — wseltzer @ 6:21 pm

    Over at Wired’s Threat Level blog, Kevin Poulsen reports on a new DMCA overreach: the U.S. Air Force complained (via outside counsel) (PDF) about his posting of their recruiting video. The post, Kevin says, was initially made at the Air Force’s invitation.

    If the government created this work, then the DMCA claim is improper. Works of the U.S. government are not copyrightable. But the statute allows the government to receive copyright assignments, so if an independent contractor created the video, still available at the Air Force’s (non .mil) site, the government could meet that technical requisite of the DMCA.

    The DMCA also requires that the notifier assert the posting was unauthorized. Poulsen’s article, however, says the Air Force sent Wired the ad and “thanked THREAT LEVEL for agreeing to run it.” That doesn’t quite square with the DMCA-required statement that the notice-sender “ha[s] a good faith belief that none of the materials or activities listed above has been authorized by the U.S. Air Force, its agents, or the law.”

    Even if the Air Force’s DMCA claim is truthful, however, it’s still a policy overreach. Wired posted the video in order to report on government recruiting efforts; the video’s dissemination is part of that First-Amendment protected discussion, whether it happens on or off government websites. The DMCA makes it too easy to takedown first, think later.

    February 25, 2008

    FCC Open Hearing: Net Neutrality

    Filed under: Berkman, law — wseltzer @ 12:00 pm

    FCC HearingThe FCC is in Cambridge today, for a Berkman-hosted open meeting (PDF) on Network Neutrality.

    Congressman Ed Markey introduces the panel with recollections of his fight against mandated access charges for dial-up connections. Flat rate connections, initially allowed Internet to flourish, as Internet users built out a Net freed from the shackles of long-distance timers.

    Markey clearly gets the ‘Net: “The Internet is as much mine and yours as it is AT&T’s, Verizon’s, and Comcast’s…. The nature of the ‘Net is not about the carriers and the services they provide… they provide access, not service. … This is ‘No Country for Old Bandwidth.’”

    Markey understands that the value of the Internet’s potential, is greater than even the best current application: “The beauty of the internet is its wonderfully chaotic, ever-evolving nature… its ability to reinvent itself every single year.” Let’s hope the rest of the hearing strengthens that vision.

    Join in: Join the Berkman IRC channel or post questions.

    January 29, 2008

    Craft and Copyright

    Filed under: copyright, law, music — wseltzer @ 12:05 pm

    I just got the latest issue of Craft Magazine, which, along with fun projects like “Hand-Sewn Free-Range Monsters,” contains my column on Craft and Copyright. I make the case that crafters should seek balanced copyright, since they find themselves on both sides of the aisle:

    Your artistic works are copyrighted upon creation, as soon as they’re “fixed in a tangible medium of expression.” If you do nothing further, the law forbids others from copying that goes beyond fair use. Readers can’t take the patten and detailed descriptions you’ve posted and copy them verbatim, but can they make and sell the craft described? That depends on the copyright in the crafted object: a richly patterned sweater’s surface design could be copyright-protected, but its shape would not. Further, if you’ve published a pattern, readers probably get an implied license at least to make the craft from it. That means too, that when you’re on the other side, using someone else’s patterns, you’re free to take uncopyrightable methods and “useful articles,” but limited in taking full-blown expression.

    Part two of “Crafting Laws” will follow in the next issue.

    January 11, 2008

    Mukurtu Contextual Archiving: digital “restrictions” done right

    Filed under: law, music — wseltzer @ 10:37 am

    I’m accustomed to thinking of digital restrictions in the U.S. intellectual property context. We’re told that DRM use restrictions are trade-offs for getting material in digital form, but generally, the trade is a bad one for the public.

    The Mukurtu Wumpurrarni-kari archive Kimberly Christen helped the Australian Warumungu community in Tennant Creek to construct puts digital restrictions in a very different light.

    As Kim described when I met her at a conference over the summer, the Warumungu have a set of protocols around objects and representations of people that restrict access to physical objects and photographs. Only elders may see or authorize viewing of sacred objects; other objects may be restricted by family or gender. Images of the deceased shouldn’t be viewed, and photographs are often physically effaced. When the Warumungu archive objects or images, they want to implement the same sort of restrictions.

    They wanted an archive that was built around Warumungu protocols for accessing and distributing materials (in many forms). One of the first mandates was that everyone had to have a password so that they could only see materials that they were meant to see based on their family/country/community status.

    Kim’s response was to help construct a digital archive with access controls — ACLs based not on copyright but on the various elements of a person’s community status. Your identity sets your view-port into the archive; the computer will show only items you have permission to see. The community can thus give objects context in the online archive similar to that which situates them offline. As an object’s status changes, the database can be updated to reflect new rights or restrictions.

    Yet the Mukurtu’s form of “DRM” is fragile. Users are encouraged to print images or burn CDs, which have no controls built-in.

    People can also print images or burn CDs and thus allow the images to circulate more widely to others who live on outstations or in other areas. In fact, one of the top priorities in Mukurtu’s development was that it needed to allow people to take things with them, printing and burning were necessary to ensure circulation of the materials.

    Unlike copyright-DRM systems, which fall back to the most restrictive state when exporting or communicating with “unsigned” devices (such as blocking all copying and breaking or lowering playback resolution on high-definition monitors), this one defaults to granting access. It’s up to the people using the system to determine how new and unknown situations should be handled.

    Because the Murkurtu protocol-restrictions support community norms, rather than oppose them, the system can trust its users to take objects with them. If a member of the community chooses to show a picture to someone the machine would not have, his or her interpretation prevails — the machine doesn’t presume to capture or trump the nuance of the social protocol. Social protocols can be reviewed or broken, and so the human choice to comply gives them strength as community ties.

    One of the lessons of the recording industry lawsuits and growing shift from DRM’d music is that community norms don’t support current copyright law. Rather than fight copyright norms with bad code, we should learn from the Warumungu and build code (and law) to support social practice.

    Further good news: Kim says she and Craig Dietrich will be releasing the archive’s code as Free Software.

    December 20, 2007

    Here Comes Another Takedown

    Filed under: law — wseltzer @ 6:24 pm

    Earlier this month, comedy group The Richter Scales released a funny music video, “Here Comes Another Bubble.” The video showed a montage of Silicon Valley images over a sound-track adapted from Billy Joel’s “We Didn’t Start the Fire,” lampooning the Web 2.0 bubble that seems near bursting again. The video must have touched a nerve, as well as a funny bone, because it got wide linkage and discussion and became the week’s top-rated video.

    Then, it was removed from YouTube, “due to a copyright claim by a third party.”

    Photographer Lane Hartwell says she objected to use of her photograph of Valleywag’s Owen Thomas, so she sent a DMCA takedown notice to YouTube. Hartwell says she owns copyright in the image and did not license its use. In response, YouTube appears to have disabled the video pursuant to its copyright policy (perplexingly, it did not identify the “third party” sender of the complaint.)

    Now, the video is back, in a revised version that omits Hartwell’s photograph.

    To me, the original situation seems to lie near the blurry edge of copyright’s fair use exception. The Richter Scales would argue that their use was “transformative,” using the photograph to comment on the bubbly scene the photographer chose to depict; commentators on Silicon Valley foibles might be unable to get permission for photos used to skewer the establishment. Hartwell, by contrast, tells us that “Photography is my livelihood. It’s how I pay my bills. I’m not treating the band any differently than any other group that uses my work without my permission.” She sells or licenses her work to magazines and others who want to use photo illustrations, and sees no reason to treat the Richter Scales differently.

    Is the momentary use of Hartwell’s photo an unfair substitute for something she should have had the right to license, or a fair use the law should license irrespective of the copyright holder’s wishes? I’d be inclined to find the use fair, as transformative commentary, but I couldn’t guarantee that a court would agree with me.

    The DMCA harbors no such ambiguity, however. The moment someone claims an infringement, the law encourages the service provider to act “expeditiously” to remove the offending material. The strict penalties in copyright’s “property rule” nature support that response: One who can prove copyright infringement can often get both an injunction and stiff statutory damages. Acting individually, the parties might stand firm or be pushed by the costs of legal uncertainty to settle their differences, but the service provider in the middle changes the calculus.

    The intermediary service provider rarely wants to risk outsize damages or get into negotiations with copyright claimants and small content-posters, and so tends to take down rather than face even a remote chance of liability. If, on the other hand, intermediaries’ secondary liability were limited as it is for defamation, content creators would be freer to make and defend fair use arguments. A liability rule or compulsory license, enforcing rights through payment rather than removal, could leave these items in the public view.

    Absent copyright reform, we’re stuck with the likelihood that clever montages — which depend on pulling content from many sources — get popped even more quickly than tech bubbles.

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