Why Do Some Politicians Want To Ban You From Putting New Software On A Prepaid Mobile Phone?

from the protecting-business-models? dept

The EFF points out that some prepaid mobile providers have apparently convinced some politicians to introduce a bill, The Wireless Prepaid Access Device Enforcement Act of 2009, that would ban buyers of prepaid mobile phones from installing their own software for the purpose of working on another network. Basically, this is a bill specifically to protect the business model of Tracfone, which sells subsidized phones assuming that the buyers will keep buying prepaid minutes from them. The problem is that this might just be a bad business model -- and once someone has bought a device, it should be theirs, and they should be free to do with it what they want. Congress shouldn't be protecting anyone's business model.

33 Comments | Leave a Comment..

Apparently Even VCs Get Confused Over Ratio Ownership Compared To Total Value

from the and-those-are-the-VCs-you-don't-want dept

Venture capitalist Fred Wilson recently had a great post where he calls out a bunch of his colleagues in the venture capital business (not by name) for insisting on owning a certain percentage of a company in order to invest. Fred notes, correctly, that it's not the percentage that matters, but the actual value (and the appreciation of it) of the equity that one holds. In simplest terms: owning 10% of a $1 billion company is always going to be a hell of a lot better than owning 40% of a $1 million company.

But, what I find amusing -- and what Wilson doesn't mention -- is that this very argument is quite commonly presented to entrepreneurs from VCs. That is, when an entrepreneur frets about giving up a portion of his or her company, a VC will often make the point that "with our investment, we can take your company's valuation way up -- so even if you own a smaller percentage, your absolute value will increase." And it's a true argument (if the value increase happens). And, in many cases, it's the very same VCs who will use a line like this that then insist on owning a certain percentage. It makes you wonder if they believe what they're saying themselves, or if they're just using all of it as a negotiating tactic to take a larger cut of the deal.

6 Comments | Leave a Comment..

Court Once Again Confirms Right Of First Sale For Software: You Own It, Not License It

from the good-news dept

Excellent news. In the ongoing case involving Autodesk and a guy, Timothy Vernor, who was trying to sell legally acquired used versions of AutoCAD on eBay, the district court judge has ruled that Autodesk has no right to restrict the sales of its used software. This wasn't a huge surprise, as the court indicated as much last year, when it refused to grant Autodesk's motion to dismiss the case. But this is an important ruling for a variety of reasons. Beyond just reiterating the well-established right of first sale on software, it also helps clarify that when you by a piece of software, you own it, rather than just license it. As the judge noted:

"The transfer of AutoCAD copies via the license is a transfer of ownership."

The judge also mocked Autodesk's claim that allowing such sales to go forward promoted piracy:

"Vernor's sale of AutoCAD packages promote piracy no more so than Autodesk's sales of the same packages."

Autodesk, of course, will likely appeal the ruling, so this isn't done yet. But, so far, this is definitely good news.

27 Comments | Leave a Comment..

Ownership Or License: The Difference Matters

from the quantum-bullshit dept

Those who rely on copyright like to do a neat little trick at times. When it's convenient, they like to claim that what they're offering is no different than a physical good. In such situations, if you make a copy, they claim that you "stole" it, and that it's "no different" that walking into a store and taking something off the shelf without paying for it. Yet, at other times, if you point out the sorts of restrictions that would lead to -- such as no control over the product post-sale -- suddenly they change their tune. You didn't buy the product, you merely "licensed" it, and thus they could post sale restrictions on things. If you buy a chair, and then build a replica yourself, that's perfectly legal. But copyright holders claim that's not the case when it comes to products covered by copyright -- because they insist that it's "licensed" not "owned."

Luckily, the courts have long pushed back on this attempt by copyright holders to extend copyright's power beyond what happens with physical goods. That's why, for example, we have a right to first sale, allowing you to resell a book. The copyright holder cannot claim that you only "licensed" the book, rather than bought it, so you are, in fact, allowed to resell it. But the law isn't entirely clear on all aspects of this, and software "licensing" is one key area where there are some problems.

A few years back, Blizzard sued the maker of a bot, the Glider bot by MDY, claiming that the software violated its copyright. Now, even many who are against abuses of copyright, emotionally started to side with Blizzard here, due to what the bot allowed: it effectively allowed cheating, by automating many repetitive tasks, to let users "level up" more quickly. But, if you get past that element, the case has important implications for copyright law, and whether or not the software you buy is really purchased... or merely licensed.

The district court ruling was incredibly problematic. Nothing the guy actually did with the bot software appears to violate copyright law. Basically, the court just decided that it didn't like what the guy did, and thus it used copyright law to shut him down, though it used rather tortured reasoning. This sets an incredibly bad precedent and seems entirely at odds with the purpose of copyright law itself.

The case is now being appealed, and Public Knowledge has filed an amicus brief while the EFF explains what's at stake:

Ownership matters, because otherwise Blizzard and other software vendors can wipe away important consumer rights with legalese contained in license agreements. For example, in Section 117 of the Copyright Act, Congress gave owners of computer software the right to use their legitimately purchased software without having to rely on permissions in license agreements. Blizzard and other software vendors are arguing that customers are not owners, but mere licensees, in an effort to eliminate our rights under Section 117.

This "owner-versus-licensee" trick is not just an end-run on Section 117, it's inconsistent with the law in other areas--the courts and Congress have long rejected efforts by copyright and patent owners to impose all kinds of post-sale use restrictions on books, patented machines, and compact discs. Why should software be different? Just as with those other copyrighted works, if you bought the disc that the software comes on outright (as opposed to leasing it, for example), you should get the privileges of an owner (i.e., the right to resell and the right to make copies and adaptations as necessary to use software).

In short, Blizzard's legal arguments here are all about using copyright law to take away consumers' rights in the software they purchased.

Hopefully, the Appeals Court recognizes this. Copyright owners shouldn't be able to play a quantum game of calling something "owned" when it suits them or "licensed" at other times when it suits them.

42 Comments | Leave a Comment..

Skype Tech Licensing Soap Opera Continues: Founders Sue eBay, New Buyers For Copyright Infringement

from the someone-screwed-up-big-time dept

Over the summer, we wrote about the bizarre and protracted legal dispute concerning whether or not eBay actually had the rights to the core technology in Skype. Skype's founders, Janus Friis and Niklas Zennstrom, claim that they retained the right to the core technology in a separate company called Joltid, and that they terminated eBay's license to that technology. There's a legal battle already underway about that, but apparently that's not enough, as Joltid has now filed a separate copyright infringement lawsuit against eBay and the list of investors who recently bought out a big chunk of Skype from eBay. The thing that still amazes me is that pretty much everyone realized right away that it made no sense for eBay to buy Skype. That was a bad idea from the very beginning. But finding out that the purchase price didn't even include the core technology, and that Joltid had the ability to revoke the license, makes the purchase almost monumentally bad.

9 Comments | Leave a Comment..

Skype Founders Claim eBay No Longer Has A Right To Skype's Core Tech

from the this-is-going-to-get-messy dept

As you know, eBay bought Skype for a ton of money a few years back, without having any real plan for what to do with it. There were no synergies between the two, and about the best that can be said for eBay's ownership of Skype is that they didn't kill it (though, frankly, the new UI is so bad, it makes me wonder what they were thinking) and let it continue to grow organically. Earlier this year, eBay finally announced plans to spin off Skype. Fair enough. It can probably do a lot more outside of eBay than from within. However, it turns out that there may be a bit of a legal hitch, as Skype's founders claim that eBay/Skype no longer have the legal rights to Skype's underlying technology. Apparently, the claim is that Niklas Zennstrom and Janus Friis and a separate company they ran, Joltid, only licensed the underlying technology to eBay/Skype for a limited time -- and that deal has now concluded. The two companies are scheduled to fight this out in court.

There are a few interesting asides to all of this. First, it reminds me of how Zennstrom and Friis ended up in another lawsuit a few years back, also involving questions about licensing the core underlying technology of Skype. There's a lot of background here, and not all the details are clear (at all), but that original case involved the claim that Zennstrom and Friis used the same core underlying technology that they used to build Kazaa to build Skype. Way back, Zennstrom and Friis had created two operations: Kazaa and FastTrack, which created the underlying tech used in Kazaa. However, they also licensed FastTrack to a company called Streamcast, that made a product called Morpheus that competed with Kazaa in the file sharing space. Got that?

The folks at Streamcast insist that part of their contract with FastTrack was that they had a right of first refusal on buying the underlying technology. But then, all sorts of stuff happened, with Kazaa being sold off to a group in the South Pacific, but Zennstrom and Friis supposedly retaining some core technology which (Streamcast claims) they used to build Skype. Then, once Skype sold, Streamcast claimed that the whole thing was an elaborate shell game, but in selling the Skype underlying technology, Streamcast claimed that Zennstrom and Friis violated their agreement on having a right of first refusal on purchasing the technology.

Yet, now I'm left wondering if that original claim was true. If the current claim is that Joltid still "owns" the original technology and Skype/eBay only licensed it, then the technology itself might never have actually been sold (unless, we're talking about two separate core underlying technologies... which is possible).

Still... the bigger question? How the hell did eBay make a deal and not make sure it had either purchased (entirely) the core underlying technology or had a guaranteed perpetual license that couldn't be revoked? The eBay Skype purchase was bad enough already. Could it be even more ridiculous in that eBay didn't even properly purchase the technology in question? It seems preposterous to believe that a company could screw up an acquisition that monumentally, so you have to wonder if it's actually true.

In the meantime, since there are questions about how eBay can rebuild Skype's underlying core technology without violating the many patents in the space, it makes you wonder if eBay may be forced to simply buy someone else's technology. Maybe it's time to call up the Gizmo Project (which has built a very Skype-like product) to see what they're up to these days. Though, can you imagine eBay needing to buy another company just to power Skype so it can be spun off again? Yikes!

9 Comments | Leave a Comment..

Doubleplusungood: That Copy Of 1984 On Your Kindle Is Now Gone

from the you-never-had-that-book... dept

For quite some time we've been pointing out the simple fact that, unlike with a physical book, you don't really own the ebooks that you buy on your Amazon Kindle. Even worse, Amazon can simply delete them at will. In fact, that's exactly what's happened to (of all books!) George Orwell's 1984 and Animal Farm. Talk about irony. People who legitimately purchased those books discovered that they're now gone, as the publisher has decided that ebook versions were doubleplusungood and should never have existed in the first place. So, like the war with Eurasia, the book is now just a figment of your imagination. You never had it. At least Amazon refunded the money, but what kind of book do you buy that gets automatically disappeared? eBooks are an interesting concept, but how can anyone buy into something where their books might suddenly disappear? Update: The NY Times is now reporting that Amazon says it will change its system so that, in the future, books won't be deleted. However, that's not making many customers happy. They seem pretty pissed off -- with some noting that Amazon's own terms of service claim that you have a permanent right to the content once you've bought it. On top of that, the Times quotes a student who had taken a bunch of notes, which Amazon destroyed as well.

90 Comments | Leave a Comment..

Power.com Says Facebook Can't Block Access To User Data

from the seems-like-a-tough-claim dept

Earlier this year, we had trouble understanding Facebook's reasoning for suing Power.com, a site that tried to aggregate a variety of social network sites into a single interface (something that seems rather useful). However, Facebook insisted that it violated its copyright, and in a slightly troubling ruling in the case, the judge seemed to find that any scraping could be copyright infringement, even if the scraping was just to get at non-infringing content. The court's argument was that in order to get at the non-infringing content, you first have to scrape the infringing content too.

Now the case is getting odder, as Power.com has countersued Facebook, claiming that Facebook is "unlawfully withholding the data that users own (as stated in Facebook’s own ToS)." Of course, if that's true, I'm not sure if Power.com has the standing to make that claim. Wouldn't that be an issue for the user to raise themselves? Besides, I don't think there's any rule that even if a site lets you retain the copyright on content that it needs to make it easy to access. So now we have lawsuits coming from both sides that don't make much sense. The two sites should just learn to play nicely with each other.

10 Comments | Leave a Comment..

Because The Mainstream Press Never Copies Stories From Bloggers Without Credit...

from the parasites? dept

We've been hearing all sorts of stories recently about how aggregators and blog sites are apparently "parasites" on "real" newspaper reporting. For example, the CEO of News Limited (a subsidiary of Rupert Murdoch's News Corp.) just went on a nice little rant against bloggers, claiming that blogs are "barely discernible from massive ignorance." In fact, the idea that blogs are somehow "parasitic" to "real journalism" has been around for years.

Because of this, we're suddenly seeing a revival of the nearly dormant concept of a "hot news" protection, that would forbid other publications from "profiting" from a news source that has a hot scoop. We're seeing proposals to ban even paraphrasing the news from a source that breaks it or making profits from a story broken by someone else.

So, surely, a mainstream newspaper would never "parasite" a story from a blog without giving credit, right? We've already joked that newspapers (by their own definition) are simply parasites of the people who actually make the news they cover, but newspapers have a long history of getting their stories from other publications and rarely given credit.

To be clear: beyond common courtesy, I don't think there's anything wrong with this, and I'm calling out the following example not because I think the LA Times did something wrong. I just find it amusing that at a time when so many insist that it's the ugly mass of "bloggers" who "parasite" stories from the professional reporters, that we see the opposite. Last week, I believe I was the first publication to write about Yahoo, Microsoft and RealNetworks getting sued by MCS Music over failure to license composition rights on a bunch of songs those companies offered via their music services. That story was sent to me by Eric Goldman -- who I believe sent it to some others as well. A few other online only publications wrote about the story and credited my post, which was nice.

And then, the LA Times wrote about it, calling it an important lawsuit. Now, there are many different places where the LA Times and its reporter Jon Healey could have found that story. Others may have sent it to Healey. He may have been watching the legal filings himself. Eric Goldman (who sent it to me) could have sent it to him as well. But... what's interesting is that in describing the case, Healey links to the version of the filing that I, personally, uploaded to document hosting site Scribd for the purpose of including it in the Techdirt post. That suggests, pretty strongly (and I'm willing to find out otherwise) that Healey found out about the lawsuit on Techdirt (I know that Healey has read the site in the past, though that doesn't mean he still reads it).

Now -- again, since this will be misinterpreted -- I have no problem whatsoever if Healey did find out about it on Techdirt and if he then wrote about it and decided not to link to Techdirt as credit for where he found it. I'm not complaining about it. It's a neighborly thing to do, but certainly not a big deal in the long run. I just found the fact that this appears to be what happened rather amusing, given the claims of so many that it's the blogs who "parasite" the pros, when it appears that the opposite happens sometimes too. If some of these proposals that are floating around ever got anywhere, I could argue that the LA Times was unfairly profiting off of my "scoop." That would, of course, be ridiculous, but that's the sort of world we'll live in if those who are trying to jump on the "hot news" bandwagon get their way.

And that is the important point. News is news. Facts are facts. No one owns either. A lawsuit is just a lawsuit and if anyone wants to write about it however they want to write about it, they should be able to do so. To claim that whoever wrote about it first somehow gets to "own" the story or reserve all the "profits" from it -- whether it's by a newspaper, a new media publication or some individual -- is simply pointless.

And, the newspaper folks who are pushing for such rules might want to remember that it's just as likely to come back and bite them if such laws were passed.

19 Comments | Leave a Comment..

The Myth Of Original Creators

from the creativity-is-built-upon-others-ideas dept

We recently wrote about how many different sources Shakespeare used in writing King Lear, some of which he apparently copied verbatim. However, it seems quite likely that what Shakespeare did with those words created something wholly unique and valuable (at least, it's withstood the tests of time). Yet, this idea that taking the works of others and doing something with them to make them new and wonderful seems to be an anathema to the "true believers" in copyright, who insist that creativity is about being wholly original, and almost never about building on the works of those who came before. Yet, there's almost no evidence to support this. Nearly any creative work can be shown to be built upon the works of those who came before (hell, even our own copyright law is copied from others').

Law professor Peter Friedman recently had a few interesting blog posts that helped highlight this. First, he noted that the very notion of an author as the originator of a new work is a relatively recent phenomenon, and part of the Romantic Movement. However, prior to that, the view was much more akin to what we're actually seeing today with online tools of creation: "creative endeavors are derivative and collaborative, that originality is not the product of isolated genius but of, well, remixing."

He then goes on to discuss the blues musician Robert Johnson -- considered by many to be the "quintessential" Blues musician. However, a recent study into Johnson's work suggest that his fame and renown is basically an accident of history. Some British musicians heard Johnson's music, and since they'd never heard it before, they credited him for it, even though he was mainly copying (and building on) the work of others:

Conceptions of Robert Johnson's work highlight the context dependent nature of notions of originality. Originality is yet another characteristic of copyrightability that is not always easy to delineate in actual contexts of creation. However, what might seem original to those in one context may not seem as original in other contexts. Consequently, within the context of African American audiences of the 1920s and 1930s, Johnson's work probably did not seem startlingly original in the way that it did to British and other musicians and audiences listening to Johnson's music, often in relative isolation, in the 1950s and 1960s. This later audience was largely removed from the original context of other music that was prevalent at the time Johnson produced his music or able to listen to a limited and likely biased sample of such music. For early African American blues listeners, what seemed original and interesting was very different that what seemed interesting and original to the largely white blues fans that were the major force behind the blues revival in the 1950s and 1960s. For the latter, romantic conceptions about the blues were closely tied to notions of authenticity that are often unsuited to musical creation in living musical traditions. As a result, what is perceived as original may depend in significant part on the contexts within which listeners hear music.

Friedman also points back to another recent post where he discusses the nature of content creation, based on a blog post by Rene Kita. In it, she points out that remixing and creating through collaboration and building on the works of others has always been the norm. It's what we do naturally. It's only in the last century or so, when we reached a means of recording, manufacturing and selling music -- which was limited to just those with the machinery and capital to do it, that copyright was suddenly brought out to "protect" such things.

But, today, with the rise of the internet, and the ability for anyone to perform those roles, we run smack dab into conflicting interests. People still want to create the way they always have, but the industry of the last century, that has relied on copyright law to make its product seem different and "original" freaks out about this ongoing content creation:

Culture is a conversation. Every act of culture is a reply to something, a restatement, correction, modification, reworking. Lawyers are constantly debating how much modfication is required to make a work legal. Thus, you may 'create' a new instance of The Blues(TM Martin Scorsese), by shuffling the notes and words around by a set amount. Shuffle too little and you're in trouble with the law. Shuffle too much and the purists start screaming rape. Still, artists are trained to recognize what is a new song and what a version and their publishing companies have experts to deal with these matters. And there we enter the crux of the matter:

Copyright law is corporate law. Or it used to be.

Previously, it took heavy investment to publish art, music, writing, so it was always done by companies and professionals. Today, squirting anything into a blog is an act of publishing. The legalese you signed by clicking when you started your blog forbids any use of copyrighted material that you don't own. Suddenly, instead of plain ordinary citizens entitled to sing "Poops, I did it again" or tape Brad Pitt's face in a toilet bowl onto a postcard to a friend, we are all professional artists required to Create Art from Scratch. Because we are no longer just having a conversation, in which we quote from everything we have seen and heard without any thought of Creation and Originality. Your piddling little blog is a Publishing Enterprise held to the same legal standards as Time Warner Inc, except that you do not have the funds to pay for any borrowings.

You have been muzzled.

This is why people are angry. Their normal modes of expression have been turned into a crime. They know they are only safe from prosecution because they are small fry - unless someone decides to make an example of you. Thus, any time you post some photoshoppery or a musical mash-up you risk having it summarily deleted and your account cancelled for criminal cultural activities.

It's nice to see more and more people recognizing and speaking out about these things. The idea that there is a single "author" or "creator" who deserves to get money any time anyone else builds upon his or her works is something that should be seen as increasingly ridiculous as people recognize that all works are created based on the works of others, and it's inherently silly to try to charge everyone to pay back each and every one of their influences in creating a new work.

79 Comments | Leave a Comment..

Activision Sues EA Over Ownership Of Brutal Legend Video Game

from the hey,-look,-free-advertising! dept

Back in February, we wrote about the saga of the video game Brutal Legend, which was being developed by game studio Double Fine, with an agreement for Vivendi Games to publish it. However, following Vivendi's merger with Activision, the new company had dropped plans to release the game, leading Double Fine to go in search of another publisher -- which it found in Activision's biggest rival, EA. Except... suddenly Activision claimed it still owned the rights to publish the game even though it had no intention to actually do so. Apparently nothing came of that discussion until now... just as EA has ramped up its promotion of Brutal Legend, Activision has sued. Back in February, EA's statement on the matter had been:

We doubt that Activision would try to sue. That would be like a husband abandoning his family and then suing after his wife meets a better looking guy.

Apparently, EA calculated incorrectly. In the end, this is a contractual dispute -- and the results will very much depend on the details of any agreement between Double Fine and Vivendi. However, it would be quite silly for Double Fine to have agreed to a deal with Vivendi that didn't allow for an out if Vivendi decided not to publish the game. Of course, it doesn't sound like Double Fine is taking this too seriously either. Its response to the lawsuit?

"Hey, if Activision liked it, they should have put a ring on it. Oh great, now Beyonce is going to sue me too."

They sure do like those marriage analogies.

16 Comments | Leave a Comment..

Why Should Mattel Get Future Plans For New Bratz Dolls?

from the gross-injustice dept

Last year, we wrote about a somewhat horrific court ruling against MGA Entertainment, the makers of Bratz dolls, after getting sued by Mattel. If you don't follow the doll business, Bratz is really the first doll to successfully compete against the massively successful Barbie franchise in ages. However, the guy who came up with Bratz had worked at Mattel prior to going off on his own. Of course, this is the history of many different innovative companies. If you come up with a better idea while working at one company, it's a good thing that you can go off and build your own company. As we pointed out at the time, this is the story of plenty of successful tech companies. Steve Wozniak was at HP when he built the first Apple computer (and continued to work there for some time after Apple was moving forward). Robert Noyce helped found Fairchild (and later Intel) after growing frustrated at Shockley Transistor. Hell, William Shockley founded Shockley Transistor after feeling he didn't get enough respect at Bell Labs. Yet, here's a toy designer at Mattel who's entire operation is getting shut down because he came up with the idea while still employed at Mattel?

Even if you grant the somewhat troubling premise that the concept for the dolls was created at Mattel, at best you could make an argument that Mattel had some rights to an injunction and profits from the first generation of those dolls. Yet, the judge not only ruled that, but also that MGA had to give up all such dolls, and hand over all sorts of confidential info, including "all related products, designs, customer information and 'know-how' for a planned 2010 Bratz line." It's difficult to see any justification at all for forcing them to hand over future plans that had nothing to do with what the guy created while still at Mattel. MGA has now filed an emergency appeal, noting that if it does hand over such info and assets, it would have "devastating and irreversible consequences," which seems quite accurate. All in all, this seems like Mattel simply trying to stop competition, and it's a shame that the US court system seems to be helping.

190 Comments | Leave a Comment..

The Web, Creativity And Commerce: The Blurry Line Between Creativity And Ownership

from the nice-quote dept

Michael Geist points us to Ivor Tossell's final web column for the Toronto Globe & Mail, which is all about how fans kept the Star Trek universe alive, creating incredibly detailed fan versions of the shows, despite all of the offical shows having ended. In many ways, it's similar to the recent story we had about a fanmade Lord of the Rings movie. But the best point is made at the end (the emphasis is mine):

There's a lot of things you can do with the Internet. You can sit around all day, strip-mining the Net for free movies. You can disappear into virtual worlds. You can log onto your favourite website and leave a comment that will cause readers to wonder whether the planet wouldn't have been better off left to the dolphins.

You can buy a webcam and do something profoundly embarrassing that will render you unemployable for years. You can spend your days filling up Facebook with a hollow performance of yourself. You can create a Web service that seems destined to change everything, only to discover - several billion dollars later - that it really changed nothing, because people are people, and the more things change, the more they stay the same.

Or you can make something. On the sunniest days, I look at the Web and I see a world of people making things. Maybe they're cat videos; maybe they're full-blown recreations of science-fiction series from the late sixties. Either way, the creative process never happens in a vacuum. It's an endless back and forth of ideas and materials, and some of them will always cross the lines of ownership and copyright.

It's unusual to tell a story of an online project that takes a corporate work, uses its intellectual property to make something new, and gets rewarded instead of sued. But then, Star Trek has always envisioned an inexplicably cheery future in which creativity trumps commerce. It's science fiction, all right, but let's run with that.

Indeed. This is an important point. The web really is an incredible tool for creativity and making stuff. It's really too bad that copyright often gets in the way of that.

6 Comments | Leave a Comment..

One More Reminder That You Don't Own The Books On Your Kindle

from the ownership:-how-20th-century-of-you... dept

Lots of people have pointed out that one of the massive downsides of an eBook device like the Kindle is that you don't actually own the books you bought. Unlike a real book, you can't share it with a friend, resell it or donate it to the local library. And, in some cases, you can lose access to books you thought you "owned," based on the whims of employees at Amazon deciding you somehow abused their system. One of the big controversies over the Kindle was the TTS feature, which the Authors Guild claimed (without a shred of legal evidence) violated its rights. The Authors Guild had no claim here. It doesn't violate performance rights, because reading aloud isn't a performance. It doesn't violate copyright, because there's no fixed copy made -- and if it did violate copyright, so would reading a book aloud. Yet, for no clear reason, Amazon caved in and agreed to take away this feature.

Mark alerts us to the news that, as of May 13th, Amazon began remotely disabling the feature for certain eBooks, including many popular titles. In other words, Amazon remotely took away a feature that you used to have. That doesn't happen with a physical book. Random House doesn't get to say "oh, wait, we're now taking away the ability to dog ear pages." I love the concept of eBooks, but it's quite troubling that you don't actually get ownership of the eBooks you're buying -- and that Amazon can, at its own discretion, suddenly take away valuable features from books you had already purchased.

68 Comments | Leave a Comment..

We Can't Own 'Sci Fi', So Let's Change Our Name To Something Stupid

from the is-this-one-taken? dept

The name of the Sci Fi cable channel is pretty self-explanatory: the channel shows science fiction programs. But it's going to soon have a new name: "Syfy". It's apparently pronounced the same as Sci Fi, regardless of how it reads, and was chosen because NBC Universal can "own" it, as opposed to the generic Sci Fi name, which the company couldn't trademark. Perhaps we can take some solace in the fact that the company isn't trying to take ownership of the term sci fi, but is the ability to trademark the channel's name so important to its business that the company would go to the expense of rebranding, while potentially reducing the effectiveness of the brand name? It's been obvious that the lawyers were in charge at NBC Universal for a while now, but letting them run the branding might not be such a great idea.

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

79 Comments | Leave a Comment..

The Dangerous Trend Of Thinking That Ideas Can Be Owned, Sold Or Stolen

from the locking-up-knowledge dept

An anonymous reader called our attention to a comment reposting some fantastic thinking on the dangerous trend of believing we can own, sell or steal ideas. The comment was in response to a post on Slashdot from a college student worried that his professors were "stealing" his ideas. The commenter posted a bit from The Zen of Graphics Programming, by Michael Abrash, who among other things co-wrote the game Quake. The whole blurb is worth reading, but there are two things worth calling out. First, he points out that the idea is rarely the important part:

This trend toward selling ideas is one symptom of an attitude that I've noticed more and more among programmers over the past few years-an attitude of which software patents are the most obvious manifestation-a desire to think something up without breaking a sweat, then let someone else's hard work make you money. Its an attitude that says, "I'm so smart that my ideas alone set me apart." Sorry, it doesn't work that way in the real world. Ideas are a dime a dozen in programming, too; I have a lifetime's worth of article and software ideas written neatly in a notebook, and I know several truly original thinkers who have far more yet. Folks, it's not the ideas; it's design, implementation, and especially hard work that make the difference.

Second, he points out how ridiculous a scenario it is when everyone "owns" the ideas they came up with, and what it would lead to:

A closely related point is the astonishing lack of gratitude some programmers show for the hard work and sense of community that went into building the knowledge base with which they work. How about this? Anyone who thinks they have a unique idea that they want to "own" and milk for money can do so-but first they have to track down and appropriately compensate all the people who made possible the compilers, algorithms, programming courses, books, hardware, and so forth that put them in a position to have their brainstorm.

Put that way, it sounds like a silly idea, but the idea behind software patents is precisely that eventually everyone will own parts of our communal knowledge base, and that programming will become in large part a process of properly identifylng and compensating each and every owner of the techniques you use. All I can say is that if we do go down that path, I guarantee that it will be a poorer profession for all of us - except the patent attorneys, I guess.

Exactly. The only unfortunate bit in the piece is that he then talks about an encounter with the author Neal Stephenson, where the two talked about the importance of sharing ideas and using networks to spread cheap or free tools to unleash the next creative genius. I'm a fan of Stephenson's work, and I'm sure that he at times talks up such things, but recently Stephenson has gone over to the other side, working part-time at Intellectual Ventures, one of the worst of the worst in terms of companies that are really trying to build a world where ideas are owned and limited. It's a shame that someone like Stephenson would get involved in such a project.

72 Comments | Leave a Comment..

Can You Own The Idea Of A Reality Show For Moms Picking Brides For Their Sons?

from the ownership-society dept

I have to admit that I don't watch reality TV or follow what's the latest in reality TV shows. I hear people talking about them, but it seems like half of them blend together with something about models who sing while cooking and designing fashions for eligible bachelors as an angry British guy yells at them and they hope they don't get voted off the island. Sometimes Donald Trump appears. Or something like that. So I had no idea that there's a yet another reality TV show out there on NBC called Mamma's Boy that apparently involves overbearing mothers trying to pick out potential brides for sons who apparently are unable to cut the apron strings. Sounds pretty horrific to me.

However, there was apparently a lawsuit over this one, as the guy who produces a Turkish reality TV show called Perfect Bride tried to stop NBC from airing Mamma's Boy, claiming that he holds a copyright on the entire concept of mothers and sons trying to pick out a bride (found via IPMaven). The guy claims he was trying to license the idea to a competitor of NBC, and allowing NBC's show to air would endanger those negotiations. Luckily, a court wasted little time (almost none at all) in denying the injunction, noting that there seemed to be very little likelihood that the guy would succeed in his case. Still, the case moves forward, and it's yet another symptom of a culture that has lead people to believe that you can own ideas, and anyone else who comes up with a similar idea (or, hell, improves on your bad idea) somehow owes you money.

16 Comments | Leave a Comment..

Landgrab For Ownership Of Library Catalog Data

from the not-good dept

There's been an interesting (and somewhat troubling) behind the scenes fight going on concerning library catalog data over the past few months. The Online Computer Library Center (OCLC) is a nonprofit, made up of member libraries that basically tries to help facilitate access to information among libraries. That seems like a good thing. One of its offerings is WorldCat -- basically a big online catalog of library collections, so that it's easy for anyone to find books that are available at other libraries. This, obviously, seems quite useful, and many libraries agree and are a part of WorldCat. However, a month ago, OCLC announced new policies for WorldCat that effectively allowed OCLC to claim ownership over the records that any library put in its system -- and, upon doing so, limiting what libraries could do with that data (such as, say, giving it to competing cataloging services).

This has many in the library community quite reasonably worried, with specific questions about who should be allowed to "own" library records. As that last link shows, there are a number of different people and organizations involved in the creation of a basic library database record, and basically the only thing OCLC is doing is putting it online. It's difficult to see how they can then claim ownership of it.

While this may be new in the library space, this type of debate has raged for years in other arenas, and some of the findings from those earlier battles may be instructive. The issue has to do with the concept of "database rights." Normally, factual information is not subject to any sort of copyright or ownership rights for rather obvious reasons (how do you own a fact?). However, some believe that there should be separate "database rights" that allow ownership of the compilation of certain factual information. For the most part, the US has denied this right, while Europe has allowed it -- and the results have shown, quite clearly, that the US made the right decision. Ownership of database rights tends to damaging to business while allowing the data to remain free can help build booming industries.

In this case, the scenario is a little different, because OCLC isn't trying to claim a government backed "database right" over the content, but instead wants to achieve the same effective result via a unilateral change to its terms of service -- including a bit of viral licensing code that forces the "ownership" to travel with the data. OCLC doesn't really appear to have any legal authority here, but are trying to force it through by contract -- for which I'd say there's a decent chance it wouldn't hold up in court, though no one wants it to get that far. Between the unilateral change, the claiming of ownership of others' works (including public domain contributions from the Library of Congress) and the lack of database copyrights, you could probably make a good argument that the OCLC's policy change has no weight. Still, in the short term, a much better solution would be for OCLC to back off its silly ownership claim, recognize the power of open sharing of information, and focus on adding additional benefits and services for why libraries should want to work with OCLC over competitors, rather than trying to use slimy contract terms to block out competitors. And, of course, hopefully OCLC learns that pissing off your partners and customers by dumping draconian ownership claims on them is never a good business strategy.

10 Comments | Leave a Comment..

Stopping People From Spreading Your Ideas Doesn't Seem Very Smart

from the backwards-thinking dept

Reader Another Mike sent in a long, but interesting story in Fast Company about a supposed "Green Guru" named William McDonough. The profile is not particularly flattering, painting McDonough as a blatant self-promoter at all costs, ignoring various projects that have failed (and even describing them as successes many years after they were clearly massive failures). However, what was most interesting for the stuff we discuss here was his overwhelming desire to retain "control" and "ownership" over his ideas. We see this all too often, and it ends up doing a lot more damage than good -- and that's demonstrated repeatedly with McDonough.

In one example, he was hired by a carpet company to help present a business plan on how to make the company be a positive force for the environment. Yet:

"Bill presented a business plan that said he owned the rights," says John Picard, an environmental consultant on the team, "like it was his intellectual property. He was asking for an obscene amount [of money]."

And that resulted in the company parting ways with McDonough:

"The issue is that some of the things he thinks he originated no one owns. These are things that need to be blown up, not sequestered down with a patent." Interface went on to develop its recyclable carpet, now a nearly $1 billion business, without McDonough. The company confirmed the accuracy of Picard's account.

Next up, was his supposed "success story" with Nike:

McDonough, who includes a Nike shoe in his standard slide show, recalls the period fondly. "The great thing about working with Nike was it had tremendous interest in communicating with its supply chain, and it took cradle-to-cradle ideas to heart and developed its own strategy for communicating across an immense supply chain, over 3,000 vendors," he tells me. "Incredible. It inspired us. A lot of what we do today is inspired by our clients."

The folks at Nike remember the collaboration a little differently. "It was devastating that we couldn't go forward with it," says someone who worked closely on the project and requested anonymity. When McDonough's team finished building a list of approved materials for manufacturing, after two years and a hefty consulting fee, Nike told McDonough the time had come to share the details with its thousands of vendors. To the company's shock, McDonough responded that he owned the list -- it was proprietary. "He wanted to charge us for every supplier we rolled it out to. We didn't own it after we paid all this money, which made no sense," says the person from the Nike team. "You can develop lists until you're blue in the face, but if you don't have effective ways to roll that out to the supply chain, it's not going to change it." Nike, which went on to improve its supply chain independently, confirmed this account to Fast Company and said that, given the huge amount McDonough was demanding, it decided to terminate the relationship. The company adds that "neither Bill nor MBDC designed materials for Nike."

Once again, in his demand for ownership of ideas, he's actually shut down. Finally, perhaps the most ridiculous and damning story of all involves a non-profit that McDonough himself tried to set up to promote the term "cradle-to-cradle," which he has trademarked as a description of his process. Of course, he didn't actually coin it:

Even the term cradle to cradle, for which McDonough has applied for a trademark, isn't his at all. According to Hunter Lovins, cofounder of the Rocky Mountain Institute think tank, "Walter Stahel in Switzerland actually coined the phrase 25 years ago, long before Bill started using it."

The whole nonprofit, called GreenBlue was supposed to be used to promote "cradle-to-cradle" and build up McDonough's reputation. And, in what appeared to be a contrary move to his earlier "ownership" position, McDonough announced GreenBlue with a plan to "give away the cradle-to-cradle protocol freely." Except, he didn't. The first employee at GreenBlue grew disenchanted, noting that McDonough did nothing to make "cradle-to-cradle" info publicly available. So, he pleaded with the board to jettison McDonough -- which eventually happened. And then, after McDonough left, GreenBlue became a success:

It wasn't until McDonough left that GreenBlue, specifically its Sustainable Packaging Coalition, took off. The coalition now includes 190 companies -- Procter & Gamble, Kraft, and Starbucks among them -- that are working to develop environmentally sound packaging practices. "Many people still think of the Sustainable Packaging Coalition as a project that has succeeded because of Bill McDonough, which is simply not the case," Pearson stresses.

Even better? Now that GreenBlue is a success, McDonough, who started it is demanding that GreenBlue pay lots of money to use that "cradle-to-cradle" trademark:

Earlier this year, his materials firm, MBDC, told GreenBlue it would have to license the term cradle to cradle if the nonprofit wanted to use it. "Our respective lawyers went back and forth at substantial cost to GreenBlue," says Pearson, now GreenBlue's executive director, "[but] I don't have the financial resources, nor the strong motivation, to stop them." By 2010, the very nonprofit that McDonough founded will be obliged to use terms such as "green chemistry," "closed-loop material systems," and "industrial ecology" to describe its work. Thanks to McDonough and his lawyers, Pearson says, "we will eliminate the phrase cradle to cradle from any of our materials."

So, in his quest to "own" all of these ideas, he's created a bunch of failed projects, and done little to actually help create successful environmental solutions. Yet, when he gets out of the way, and others are able to more freely share ideas, stuff gets done. Maybe he shouldn't focus so much on owning ideas, and be a little more open to the fact that if he shared more freely, and there were actual success stories built around his work, the demand to hire him in the future would be much, much stronger.

18 Comments | Leave a Comment..

Creation Does Not Equal Ownership

from the thinking-does-not-make-it-so dept

I'm quite often confused by those who consider themselves big supporters of pure free market capitalism, but who also are adamant believers in the importance of intellectual property. Perhaps the largest group of such folks are the so-called "Objectivist" followers of Ayn Rand. Capitalist Magazine is running an Objectivist defense of the recent ProIP law that was recently signed into law despite basically being a government handout to the entertainment industry. Stephen Kinsella has responded to many of the points made in the original article, and picks up on a key point that many defenders of intellectual property always pull out in their defense:

The creator of content owns the content because he created it through his own labor, and you should always own the fruits of your own labor.

The problem is this just isn't true and never has been. Simply providing the labor does not equal ownership. As Kinsella notes in his response:

His argument? "If a baker bakes a loaf of bread, he therefore owns it." And likewise, for "music, movies, software." But note the mistake here Johson makes: "If a baker bakes a loaf of bread, he therefore owns it." The "therefore" is the giveaway: he says this because he thinks of the creation of the loaf as the act that gives rise to ownership. Then this leads to the analogy with other created things, like music. But creation of the loaf is not the reason why the baker owns it. He owns the loaf because he owned the dough that he baked. He already owned the dough, before any act of "creation"--before he transformed it with his labor. If he owned the dough, then he owns whatever he transforms his property into; the act of creation is an act of transformation that does not generate any new property rights. So creation is not necessary for him to own the resulting baked bread. Likewise, if he used someone else's dough--say, his employer's--then he does not own the loaf, but the owner of the dough does. So creation is not sufficient for ownership.

Exactly. Creation alone does not grant property rights if none existed prior to that transformation. I would even take the argument a step further. Even if you own something due to the fact that you created it, once you have given away or sold that product, you no longer have ownership of it -- and claiming you do actually removes property rights from the lawful owner.

That is, if I make a loaf of bread, and then sell it to someone, I no longer have control over that loaf of bread. I cannot tell the new owner that he can only make French toast with it and cannot feed the bread to the pigeons. That's for the new owner to determine. I certainly cannot tell him that he cannot take the bread and try to resell it or even give it away to others. That's part of the free market. Yet, intellectual property enthusiasts do want to remove these property rights from the recipients of copies of the original good. Despite their claims of being property rights supporters, they are actually the opposite. They are trying to deny property rights to any recipient.

179 Comments | Leave a Comment..