File Sharing in Britain

Virtual Law@LSE writes that BT, Virgin, Orange, Tiscali, BSkyB and Carphone Warehouse have all signed up to the Government’s new Memorandum of Understanding (MoU) on File Sharing. [BBC, Guardian, Telegraph]

The MOU means that the companies have to work to create a “significant reduction” in illegal filesharing. This may sound easy enough but spying on customers and accusing them of violating copyright law is not really good business – especially for companies whose business it is to sell faster (and more expensive) broadband. The ISP’s have in the MoU agreed to send out “informative letters” to customers whose accounts have been identified as being used for potential file sharing. But as Virtual Law@LSE writes:

It would appear many thousands of people will get letters from their ISPs telling them that the BPI has identified them as potentially being in breach of copyright. The ISPs should be careful here in terms of customer relations. It is never a good idea to tell a customer of your that someone believes them to be a copyright infringer. It will (a) suggest you are snooping on them (which to an extent is true), (b) suggests you are entitled to lecture them on their activities online and (c) suggests you are serving the interests of the BPI not their own customers.

In order to be able to send the letters to suspected file sharers the ISP’s must either monitor all data traffic or only monitor those who use unusually high amounts of broadband. Either way the ISP’s are uncomfortably close to violating peoples privacy. Maybe not in a legal sense and maybe they are acting within the limitations of their customer contracts but still tantamount to surveillence and a violation of privacy.

It is also a form of privatized regulation through technology which sits uncomfortably with the potential freedom that the technology enables…

World of Warcraft EULA violation

Technollama has his finger on the pulse of the recent World of Warcraft EULA case – read all about it!

The suit involved cheating autopilot exploit which allows a player to gather gold automatically by using intelligent agents and bots to control an avatar. MDY distributes software advertised specifically to serve as an exploit, which represents a serious problem for WoW developers Blizzard Entertainment because it affects legitimate players who put time and effort into levelling and gathering gold.

Seriously the results are important far beyond gaming – as if that was not an important topic

I must say that I do not like MDY, and my initial reaction was to wish Blizzard the best. However, this is a diabolical ruling. The actual effect of the court’s argument is that if you any user is in breach of the Terms of Use, they will also be liable for copyright infringement. To put this in other terms, if I let you into my house, I am giving you a permission to enter. I cannot just decide to revoke my permission unilaterally (which is what Blizzard’s EULA says), and while you’re inside call the police alleging that you broke in. No wonder EFF have flipped over the story (although I do not agree with their provoking title). William Partry is also beffudled by the strange decision.

The concept of property (whose bike is it anyway?)

Property is not an absolute concept. The concept of what property means changes both in time and culture. Different groups and sub-groups value their own property and the property of others. Naturally this makes the definition of property difficult. Roman (Justinian) Law defined property as the right to use and abuse a thing, within the limits of the law (ius utendi et abutendi re sua, quatenus iuris ratio patitur).

That is a formalistic definition since it requires limitations to be set within the law. But if we replace the law with the limits set by society then the definition is more fluid but harder to limit.

In recent time the discussion of property has been discussed in relation to the legal, ethical and economic discussions on file sharing. A fundamental part of this discussion has been on the basic idea of digital property and whether copying digital products should be a wrongful act – this is not resolved yet with different subgroups still arguing their standpoints using law and technology to prove their point.

All this is good and well but today I got a more practical lesson in the meaning of property within different social sub-groups.

While browsing in a clothes shop my friends locked bike was stolen just outside the store. My less attractive unlocked bike was left behind. Fortunately we searched the area and found the bike. The thief had lifted the bike and hid it in a nearby ally – apparently planning to come back later to remove the lock.

Part of the experience of living in Göteborg is getting your bike stolen. Most of us have lost more than one. Some people argue that they have lost so many bikes that they actually deserve to “borrow” (a.k.a. steal) a bike when they need one. This means that there is an erosion of the concept of property in relation to bikes.

I know that this is a silly argument but the bike thing really pissed me off.

Technology and Sharing

Take a look at the Jörgen Skågeby’s recent PhD thesis “Gifting Technologies: Ethnographic Studies of End-users and Social Media Sharing” where he has studied the phenomenon of file sharing (to simplify everything a tad!)

In his thesis Jörgen Skågeby has studied the classical questions posed in gift theory: why gifts are given? what gifts are given? To whom are gifts given? How are gifts given? in relation to file sharing.

File sharing was earlier seen as a way for young people to recieve free media however Jörgen thesis argues that there is a growing social interaction developing which replaces the download focused view of file sharing with a focus on sharing. Contrary to popular views Jörgen argues that on the Internet it is clear to see who are friends and who are not – much more so than in the offline world.

from the abstract:

This thesis explores what dimensions that can be used to describe and compare the sociotechnical practice of content contribution in online sharing networks… Gift-giving was used as an applied theoretical framework and the data was analyzed by theory-informed thematic analysis. The results of the analysis recount four interrelated themes: what kind of content is given; to whom is it given; how is it given; and why is it given? … A general methodological contribution is the utilization of sociotechnical conflicts as units of analysis. These conflicts prove helpful in predicting, postulating and researching end-user innovation and conflict coordination. It is suggested that the conflicts also provide potent ways for interaction design and systems development to take end-user concerns and intentions on board.

The tyranny of “free”

Over at Macuser Dan Moren replies to the question “why can’t all iPhone apps be free? posed by Anita Hamilton in TIME. Moren widens the question to apply to the whole concept of free stuff but naturally focuses on free software. His point is the way in which the public at large have connected the concept of free (gratis) with the idea of value.

We are not entitled to software any more than we are entitled to the other products that we buy day in, day out. We’ve been spoiled because so many developers give things away for free (which, of course, is their prerogative), and we’ve gotten used to the idea of streaming our television online, or even stealing our music from file-sharing services. The idea of “free” has been co-opted into the idea that products aren’t worth money—which couldn’t be farther from the truth.

This is good stuff up until the end. I don’t think that people stealing music, downloading films or demanding free software are confused into thinking that these products are not worth money. But this does not detract from the main point in the paragraph that we are not entitled to stuff (for free).

On a primary level this is obviously true but it is not all the truth. On the level of basic needs (human, cultural, physical) there are naturally arguments to be made that stuff should be free. There are even easy arguments to be made that it is acceptable to break rules, laws & regulations when such basic needs are threatened. In addition to this there is the problematic area that we are bombarded with false needs through advertising which state (implicitly) that we are less evolved as beings unless we have the latest widget, designer toy or status gizmo. Naturally the latter is not a clear argument but it does certainly muddy the waters.

The problem with free, as Moren sees it comes with value and payment:

The whole point of payment is that you give someone money to take care of a problem that you don’t want to do yourself. You could save a bundle of money by not hiring people to cut your grass, for example, but then you’ll have to use the time you’d rather spend doing something else mowing the lawn yourself. Just as you could save some cash by developing a word-processor yourself, but heck, in the long run, it’s probably cheaper to let Microsoft do it for you.

This is economics at its most basic. Seriously. It doesn’t get any more basic than this.

This is an excellent argument and as Moren writes, it doesn’t get any more basic than this. But this only focuses on the economic transaction not on the social effects of such transactions. It is cheaper to let Microsoft create my word processor. But the problem occurs not at this stage. The problem occurs when I realize, for any reason, that I would prefer to have a word processor not built solely on economic gounds but with values of openness and transparency. Perhaps I would like to ensure that future developments within the word processor field have the ability to develop in a multitude of ways that neither Microsoft or anyone else has thought of today. Or perhaps I would just like to have Open Office on my computer becuase I like the name.

If we ony concentrate on the transaction cost argument (cheaper for Microsoft to develop than me) and we isolate the transaction and the product out of the wider context computers and communication then there is no problem. But this is unrealistic. I do not buy software alone. It is not useful without other products. Transactions are not isolated alone but a part of a system with economic, technical, political and social ramifications.

The importance of Free Software is not in giving the public free (gratis) stuff. It is in the ability for all users (via other developers) to access and control their infrastructure. In the same way as free speech is important not becuase I may one day have something important to say but becuase every day thousands of people are saying important things and one day I may just accidently happen to listen.

Copyright and non-essential parts of screendump

Karl at Cyberlaw reports of a recent interesting copyright case decided at the Swedish Court of Appeal (Svea Hovrätt).

The case (2008-07-01, FT 685-08) concerned the question whether a screendump of one web page (containing pictures) being displayed on another web page constitued a violation of copyright of the pictures.

The court found that, first of all, the pictures displayed on the webpage which was pictured and displayed on another web page were not protected under 1§ of the Swedish Copyright Act (English version Pdf) but under Photolaw 49 a§ Swedish Copyright Act.

This difference is a remnant of the time when photographs were not covered by Copyright law at all. Today photographs are covered by Copyright law but the length of protection differs from other typical works protected under copyright law.

Since the images were small and hardly distinguishable to the naked eye they made up an unessential part of the the exception in 20a§ is applicable. According to this exception there is no need for permission to use works which appear in the background or are an non-essential part of the picture.

Open Access Guide

The Oak Law project has produced an Open Access guide.

The book Understanding Open Access in the Academic Environment: A Guide for Authors by Kylie Pappalardo (with the assistance of Professor Brian Fitzgerald, Professor Anne Fitzgerald, Scott Kiel-Chisholm, Jenny Georgiades and Anthony Austin) aims to provide practical guidance for academic authors interested in making their work more openly accessible to readers and other researchers.

The guide provides authors with an overview of the concept of and rationale for open access to research outputs and how they may be involved in its implementation and with what effect. In doing so it considers the central role of copyright law and publishing agreements in structuring an open access framework as well as the increasing involvement of funders and academic institutions.

The guide also explains different methods available to authors for making their outputs openly accessible, such as publishing in an open access journal or depositing work into an open access repository. Importantly, the guide addresses how open access goals can affect an author’s relationship with their commercial publisher and provides guidance on how to negotiate a proper allocation of copyright interests between an author and publisher. A Copyright Toolkit is provided to further assist authors in managing their copyright.

The work is licensed under an Australian Creative Commons Attribution-NonCommercial-ShareAlike
2.5 License
.

Frenchmen risk being banned from the Internet

The French have gone and done it! Times Online reports:

Anyone who persists in illicit downloading of music or films will be barred from broadband access under a controversial new law that makes France a pioneer in combating internet piracy.

“There is no reason that the internet should be a lawless zone,” President Sarkozy told his Cabinet yesterday as it endorsed the “three-strikes-and-you’re-out” scheme that from next January will hit illegal downloaders where it hurts.

This is, as I have argued earlier (last time in January), a really bad idea. Why is banning people from the Internet a bad idea?

The Internet has been promoted and become our most basic communications infrastructure (my focus here is Europe since this is where the the French are).

1. The punishment does not fit the crime: We have changed the way Banks, Post Offices, ticket sales, hotel booking, insurance (etc, etc) work and banning someone from the Internet will be tantamount to branding a symbol of guilt onto the person. Not to mention the increased costs involved in time and money. Indeed why should copyright violation prevent me from online banking?

2. Group punishment: If an Internet connection is involved in copyright violation this does not mean that all those dependent upon that connection should be punished. The actual violator may be underage or the network may be open to others.

3. Privatizing the law: The ability to punish copyright violators should not be delegated to private bodies. Internet providers are not equipped to mete out legal punishments.

Earlier, when arguing against proposals such as these I wrote:

The proposals seen above are simplistic, naive and dangerous they show a fundamental lack of understanding not only of technology or its role in society but also a lack of understanding of the role of communication in a democratic society. The actions of the politicians proposing such measures show that they are not acting in the interests of the individuals they are there to serve.

Even if the French have chosen to go the other way – I still believe that they are wrong…

Confused Politicians on Copyright

Without being too cynical it is easy to see that politicians are struggling with online copyright violation. Even the terminology is confused – copyright violation is too difficult and most people will talk about file sharing and thereby confusing technology with law.

In Sweden, where computer literacy is high and fixed price broadband is the norm, intentional copyright violation through filesharing is rife. In addition to this the moral concepts surrounding these acts have been fundamentally re-interpreted. Due to its relative ease, low cost and widespread acceptance – illegal file sharing is not considered by many to be morally wrong. Some not insignificant numbers also argue that it should not even be illegal.

Naturally politicians are concerned. Not all are cynically using the debate to forward their own popularity – some are sincerely concerned about the rift between law and morality in this question. Swedes, believe it or not, are a rather moral bunch. Sure we have reputations for free sex, expensive alcohol and high suicide rates but this is no longer a true picture if you compare Sweden to the rest of Europe. What I mean by being moral is that Swedes are relatively honest and prefer not to cheat – so when the rift between morality and law is apparent it is a greater reflection of a problem in Sweden than in some other countries.

So the Pirate Party wants to abolish copyright, The Swedish Left Party recently decided to strive to legalize online file sharing. Now the Centre Party are calling for change in a recent report by their spokesman on Copright Annie Johansson (report in Swedish Pdf) on the future of copyright.

Their report is interesting in that they want to attempt a re-evaluation of copyright in order to make it into a fair balance of rights. The report is also heavily influenced by the concept of Fair Use and the Creative Commons system which is good on the one hand but unfortunately the concepts are misunderstood in the
report. The fair use system is not easily applied in the Swedish concept due to different legal cultures and histories. And the Creative Commons licensing system cannot go beyond the legislation in hand.

Are politicians weary about talking to experts?

Despite these minor misunderstandings there seems to be growing political will to discuss the purpose of copyright. This could become very interesting.

The cultural significance of Free Software

Finding new books is always exiting and I am looking forward to reading Two Bits: The cultural significance of Free Software by Christopher M. Kelty

Free Software is a set of practices devoted to the collaborative creation of software source code that is made openly and freely available through an unconventional use of copyright law. Kelty shows how these specific practices have reoriented the relations of power around the creation, dissemination, and authorization of all kinds of knowledge after the arrival of the Internet. Two Bits also makes an important contribution to discussions of public spheres and social imaginaries by demonstrating how Free Software is a “recursive public” public organized around the ability to build, modify, and maintain the very infrastructure that gives it life in the first place.

My only concern so far was that in the beginning of the book I found the sentence: This is a book about Free Software, also known as Open Source Software, and is meant for anyone who wants to understand the cultural significance of Free Software.

It is always disconcerting when people mix up free and open source software – to many the difference may not be important but when someone writes a book about the subject they should know that these are not synonymous terms. Despite this after browsing through the book – it looks very promising.

The book is available under a Creative Commons license (by-nc-sa) and can be downloaded from the book website.