I have finally finished reading SAS Institute Inc v World Programming Ltd (the IPKat beat me to it). This is an important software copyright case for many reasons. After a decade of mostly software patent cases in English courts, it is refreshing to see a complex software case where it truly belongs. I believe this might be one of the most interesting software cases in a while, not least because Arnold J has referred most of the important questions to the European Court of Justice.
SAS is a business software giant, but their products are not well known to the public. They provide business analysis and data processing software and services. The company is very successful because it follows a model of providing not only proprietary software solutions to medium and large enterprises, but also the accompanying profitable services, such as support and training. SAS has built this empire based on a combination of proprietary code and business know-how. One of the main assets held by the company is that it has its own programming language, Base SAS. The language is also combined into separate technical elements which allow consumer interaction, this is know as the SAS Components. All of this allows the company to keep tight control on the programs it creates. While users are allowed to program using this language to fit their own needs, SAS keeps a tight leash on the know-how elements of the equation, particularly training.
World Programming (WP) is a UK software company which saw an opening in the market, it created an SAS clone (knows as WPS) which would be able to run programs coded using Base SAS and the SAS Components. It also produced manuals and other supporting materials in order to train users.
SAS sued for copyright infringement claiming that WP had directly copied SAS manual materials, and had also infringed copyright by creating its own version of the manuals. SAS also claimed breach of contract because WP had used one of SAS programs contravening the terms and conditions of the licence. The most interesting claim however was that SAS argued that WP built its own clone using SAS manuals, therefore they had indirectly infringed copyright in SAS Components. This last claim is the most interesting from a legal standpoint because it sits at the heart of the many software copyright debates of the last two decades. What exactly is covered by copyright in software?
Let us get the easy legal questions out of the way first. Arnold J found that WP had indeed copied substantial parts of the SAS manuals. Interestingly, Arnold J also had to consider that WP had copied not only substantial parts of the manuals, but had included keywords in their own guides. This is an interesting question, do keywords get copyright protection? Arnold J thought so, but the reproduction of keywords could be considered fair dealing.
The other straightforward legal question was whether WP was in breach of contract. Arnold J found that WP was indeed in breach of some contractual clauses because it had used SAS software to perform actions that were not permitted by the licence.
This brings me to the two interesting legal questions, one deals with interoperability and the other one with what is covered by software copyright.
The interoperability question arose by the claim that WP was infringing SAS Component copyright by creating its own version of the software. In order to do this, WP had to decompile SAS code and make use of Base SAS in order to be able to produce a program that is compatible with SAS programs. It was always clear that WP never copied any SAS code directly, so was there infringement? The Computer Programs Directive 91/250/EEC, the Copyright Directive 2001/29/EC, and the UK CDPA all agree that decompilation is possible for the purposes of interoperability. Similarly, the WIPO Copyright Treaty and TRIPS agree that copyright covers only the expression of an idea, and not an idea itself. There was no doubt that WPS replicated large part of the functionality present in SAS Components, and also used Base SAS considerably in order to operate its own program. However, copyright does not protect functional aspects of software, here Arnold J cites Pomfrey J in the famous Navitaire case. Therefore, Arnold J concluded that WPS was not infringing SAS Component copyright.
The most intriguing legal question in my mind is that SAS claimed that WP had made extensive use of SAS manuals and know-how in order to produce its own software, and therefore was indirectly infringing its copyright. This seems to be one of the points that gave Arnold J some room for thought. The manuals have detailed functional instructions of how SAS Components operate, so would a product that is created by following the instructions set in the manual be infringing the copyright in that manual? Arnold J didn’t think so, but he decided to refer this and other questions to the European Court of Justice for guidance. These questions are:
Does copyright in computer programs protect programming languages from being copied?
Does copyright in computer programs protect interfaces from being copied where this can be achieved without decompiling the object code?
Does copyright in computer programs protect the functions of the programs from being copied?
Arnold J required interpretation of several articles in both the Software Programs Directive and the Copyright Directive.
So, stay tuned, this could turn out to be interesting. My only fear is that by continuing to muddy the waters of software copyright, those who advocate for software patents may have their case strengthened.
Should we be worried about social media? While this is sort of an exaggeration, the speed of information it describes is real. A girl in London rick-rolls a Japanese guy using Chatroulette, and as revenge he uploads her video on YouTube. What happens next?
I have been following with interest the suggestion by some Twitter users that they should start following strangers to diversify their Twitter feeds. First Joel Johnson at Gizmodo and Jonah Lerner in the Frontal Cortex commented that following random strangers was a very rewarding activity. I was truly interested by this approach, I do not know if it says a lot about modern American life that you have to go on Twitter to have access to different cultures, but perhaps we are not all that different. Most people will generally have followers that share similar interests.
The concept is a bit alien to me, I follow people from around the world, so my Twitter stream is not only always active, but it shows a lot of different interests. There is of course a large geek/technologist/lawyer presence (as I found out during ORGCon), but there is still a lot of diversity.
This got me thinking about wasted potential of many of the technologies we take for granted. The Internet allows us to connect to anyone with an account, yet we normally keep similar social circles. Perhaps there is indeed something to be said about just following random people on Twitter.
There have been several reports about the next stage in the War on Piracy (must avoid making off-topic comments about the inherent stupidity of declaring armed hostilities against abstract concepts). I am talking of course about “Operation In Our Sites” (must not comment about some poor smug bureaucrat who thought the pun was funny). This new project from the U.S. Immigration and Customs Enforcement (ICE) is designed to execute domain name seizure warrants against websites engaged in movie piracy. In other words, ICE will ask a court to issue a warrant against these websites, and these will have their domain names removed.
How is it possible to remove a domain name you may ask? The clue is in the structure of internet governance of domain names. ICANN, the governing body coordinating the international domain name system, is a private corporation with ties to the U.S. Department of Commerce. Because of this, a court order delivered in the United States against a registrar can knock out a domain name by re-assigning it in the domain name system. This action will not remove the server from the internet, but it will disassociate the IP address of the web server where the site is hosted with the domain name people use to access it. If the site is not hosted in the United States, then it is possible that it will remain working, but it will be slightly more difficult for people to find it.
What is the effect of the seizure? Say you type the name of one of the affected sites in your browser (say, www.thepiratecity.org), you will get a screen with a copyright warning and nothing else. The site will still be hosted in its server, but the world has no way of knowing this IP address. Perhaps it will be shared through blogs, mailing lists and other viral means, but it will not be found through search engines.
This is a tremendously effective strategy in the short-term, but it is doomed to failure in the long-term. The main thing is that these sites have not been completely taken off the internet, they are still hosted somewhere. It is possible that these sites may be driven to darknets and other services that do not necessarily rely on the DNS system. But what is more likely to happen is that other services will spring up to carry the slack. What cannot be underestimated is the fickle nature of file-sharers, they will move on to a new site as soon as the last one was shut down.
Thanks to La Quadrature Du Net we now have a leak of the consolidated text for the Anti-Counterfeiting Trade Agreement (ACTA) after the Luzern round of negotiations. It is always difficult to analyse texts that are in the drafting process, but we can now get a better idea of possible changes to national legislation. If the most restrictive aspects of the text were passed tomorrow, what would it change in UK law? This is a wide-ranging agreement, so I will try to concentrate on the copyright aspects. When there are different options in the text, I will choose the one that seems more restrictive, so this analysis is a worst-case scenario. I am also going not going to go in detail into the changes brought about by the Digital Economy Act, as some of the most substantive issues are under consultation.
TRIPS
The first issue I wanted to comment on is not strictly copyright related, but it may be an indication that some moderating voices are having some sway in the negotiations. Article 1.1 has been changed to include a specific mention to the TRIPS agreement. The new text reads:
“Nothing in this Agreement shall derogate from any obligation of a Party with respect to any other Party under existing agreements, including the WTO Agreement of Trade-Related Aspects of Intellectual Property Rights.”
This is a very telling change, and it may pre-empt potential challenges to the agreement under the WTO’s Dispute Settlement Understanding. It would be possible that the obligations under ACTA could have contravened directly TRIPS provisions, and would have left the multi-lateral agreement open to lengthy and expensive international disputes. By adding this paragraph, all of the obligations under ACTA will have to be interpreted in light of existing TRIPS obligations. This is a good thing, as it narrows the scope of potential nasty surprises springing up at a later date.
Civil enforcement
The main substantive copyright-related section is the one on civil enforcement. The good news is that UK copyright law already fulfils many of the suggested changes. The bad news is that where there are divergences, the changes would be quite substantial.
With regards to injunctions, Art. 2.1.1 of the leaked text reads:
“1. In civil judicial proceedings concerning the enforcement of intellectual property rights, each Party shall provide that its judicial authorities shall have the authority to issue an order to a party to desist from an infringement, including an order to prevent infringing goods from entering into the channels of commerce. “
In my opinion, this is mostly covered already under the Copyright, Designs and Patents Act (CDPA), particularly ss.96, 99 and 111. What worries me is Article 2.1.2:
“2. The Parties shall also ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right.”
This to me is one of the most wide-ranging changes that might be brought about by ACTA. This paragraph would completely change the balance of limitation of intermediary liability that we have in place at the moment. For example, currently s.97A of the CDPA allows injunctions against intermediaries who have “actual knowledge of another person using their service to infringe copyright”, and it lists several circumstances that constitute actual knowledge of infringement taking place. The ACTA text, if this paragraph is included, does not allow for “actual knowledge”. Does this mean that ISPs can receive an injunction even if they have no knowledge of the infringement? Talk about chilling effects on speed!
Another change to UK copyright law might also come through the section on Damages. Art. 2.2.1 on damages reads:
“1. Each Party shall provide that in civil judicial proceedings, its judicial authorities shall have the authority to order the infringer who knowingly or with reasonable grounds to know, engaged in infringing activity of intellectual property rights to pay the right holder damages adequate to compensate for the injury the right holder has suffered as a result of the infringement.
In determining the amount of damages for infringement of intellectual property rights, its judicial authorities shall consider, inter alia, any legitimate measure of value submitted by the right holder, which may include the lost profits, the value of the infringed good or service, measured by the market price, the suggested retail price.”
The first paragraph is covered by UK law, but the problem arises in the second paragraph. Currently, s97(2) of the CDPA only asks that the courts consider all circumstances in determining damages, paying special attention to:
“(a) the flagrancy of the infringement, and
(b) any benefit accruing to the defendant by reason of the infringement, award such additional damages as the justice of the case may require.”
Similarly, Art. 2.2.2 also requires the infringer to pay for profits lost that are attributable to the infringer. In my opinion, this means that ACTA would require further additions to this section. Most worryingly, it seems like the courts will be forced to take into consideration what the owners think are the damages, including lost profits. Will this mean that we can expect mega-infringement awards for copyright infringement in the UK?
To make matters worse with regards to damages, Art. 2.2.3 of ACTA will also import statutory or pre-established damages. It also establishes additional damages for copyright (read here punitive damages probably). This would therefore mean a major overhaul of the civil damage system present in the CDPA. It mostly exports the American system of damages to jurisdictions that do not have statutory and punitive damages.
Article 2.4 of ACTA creates an obligation of ISPs to provide information to copyright owners in order to collect evidence of infringement. This will not result in a substantive change to UK law thanks to the Digital Economy Act, specifically s4 of the DEAct already creates an “Obligation to provide copyright infringement lists to copyright owners”.
Criminal enforcement
ACTA sets out strong criminal offences for infringing practices. Art. 2.14.1 reads (again, this is the “worst-case text”):
“Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale. Infringement acts carried out on a commercial scale are those carried out in the context of commercial activity or indirect economic or commercial advantage; however, a Party may exclude such acts carried out by end consumers.”
This would certainly mean a strengthening of the existing language for criminal offences under the CDPA. Currently, s.107 only allows for criminal liability for wilful copyright infringement conducted “in the course of a business”. ACTA would result in a change of this language to a much wider interpretation, so commercial activities, or even any action that results in “indirect economic or commercial advantage” would be covered.
The most draconian copyright-related criminal offence that could arise from ACTA are contained in Art. 2.14.3. The worst version of the text reads:
“Each Party shall provide for criminal procedures and penalties to be applied against any person who, without authorization of the holder of copyright or related rights in an audiovisual work, including a cinematographic work uses an audiovisual recording device to transmit or make a copy of the cinematographic or other audiovisual work, or any part thereof, from a performance of the cinematographic or other audiovisual work in a motion picture exhibition facility open to the public.”
So, any recording, even a partial recording for any purpose, of a cinematographic work would become a criminal offence. Really. This of course, does not exist in UK copyright law, so it can be classed as a major change.
Should we be worried?
Yes. Be afraid. Be very afraid. I know that these changes may seem like minor technical issues, but it is important that we try to find a way to convey to the public that we might be faced with some substantial changes to UK copyright law. During GikII, Hugh Hancock gave an excellent presentation about how the debate against the Digital Economy Bill was lost. It is difficult to get people worked up about changes in statutory damages, but we need to act on ACTA now.
Perhaps we can get a patent for patent trolling and sue the patent trolls
Online auction giant eBay has been sued for $3.8 billion USD by XPRT Ventures in a patent infringement suit over its use of PayPal as its preferred payment system. Do not adjust your monitors ladies and gentlemen, you read correctly, that is $3.8 billion dollars, enough money to buy a small island in the Pacific and equip it with comic book villain gizmos, including robotic sharks, heat-seeking missiles and an army of ninja assassins.
The case is rather convoluted, it involves patent trolls, secret meetings, and races to the USPTO (full complaint here). The dispute goes back supposedly to 2001, when a couple of lawyers based in Delaware applied for several electronic payment systems patents, the main ones are 7483856 for “System and method for effecting payment for an electronic auction commerce transactions”, and 7567937 for “System and method for automatically effecting payment for a user of an electronic auction system”. I have no qualms about calling these XPRT Ventures a patent troll outfit. For example, the inventors are the attorneys, and they have never done anything with their patent, they simply hold the title and snipe from the sides at the real enterprises and innovators. Even a cursory glance at the patents makes one aware that this is outrageously obvious stuff. Look at the main claim in the 7483856 patent:
“1. A method for effecting payment for a purchaser of at least one item offered for an electronic auction sale by a seller via an electronic auction web site maintained by at least one computing device of an electronic auction system, said method comprising the steps of:
maintaining an electronic database of a plurality of electronic auction payment accounts corresponding to a plurality of users, including the purchaser, of said electronic auction web site and a payment segment of said electronic auction web site by an electronic auction payment system integrated with said electronic auction system, each of said plurality of electronic auction payment accounts storing funds therein and each capable of being used for user transactions in the electronic auction system;
performing at least one payment-related activity by at least one processor of said electronic auction payment system for effecting payment for said purchaser, said at least one payment-related activity selected from the group consisting of debiting an electronic auction payment account corresponding to the purchaser of the at least one item and maintained by said electronic auction payment system, and withdrawing funds from at least one account storing funds therein and not corresponding to at least one of the plurality of users, wherein at least one payment source corresponding to the purchaser is used to obtain funds for storing within the electronic auction payment account corresponding to the purchaser prior to debiting the electronic auction payment account corresponding to the purchaser; and
crediting by said at least one processor at least one account corresponding to the seller to effect payment for the at least one item offered for the electronic auction sale via the electronic auction web site.”
So, people have been paying for things for thousands of years. New methods of paying for things are springing up all the time. Some attorneys look at a successful online auction business and think “hey, we can get in on that act, just draft a patent application that brings together the existing online auction market and the existing intermediary payment system, and we can get a patent for it!” This is not only trivial, it is so obvious that I remember following the PayPal and eBay developments at the time and thinking that it was evident that they would be joined somehow, I even wrote a paper about it in 2002! My mistake was not to get a patent for that of course.
Anyway, the patents have had a very bumpy ride through the USPTO, they have been rejected, appealed and re-examined, and it was not accepted until it had been considerably re-drafted (see the original application here, and contrast it with the final version). It is quite indicative of the quality of the “invention” that it was rejected so many times. It seems like XPRT Ventures were desperate to get this approved one way or another. Why? Hold on to your chairs, this is where the story gets weird.
Allegedly, George Likourezos and Michael Scaturro, the attorneys and “inventors” making up XPRT Ventures, arranged a meeting with eBay after filing the patents. They did not meet anyone at eBay directly, but one of their lawyers, who took the patents back to eBay for analysis and discussion. XPRT did not hear back from them, other than the message that eBay’s lawyer had made an assessment of the patents and sent it to eBay. I can bet that the assessment read something like “Nothing to worry about”, or something similar.
The timeframe is important to this case. In 2001, at the time of the alleged meeting, eBay was already one of the biggest e-commerce sites in the world, and certainly the biggest online auction site. At the time, payments were usually handled directly by the users through traditional payment methods (money transfers, cheques, escrow, cash, credit cards), or through eBay’s in-house system, called Billpoint. At the same time PayPal was becoming the standard consumer-to-consumer payment system, so it was clear that some type of arrangement was on the cards. In 2002 eBay announced, to nobody’s surprise, that they were purchasing PayPal. Here is where XPRT come in. They claim that the lawyer who met them took the idea back to eBay headquarters, where they immediately started negotiations with PayPal, so they claim that the whole idea was theirs, and that all of the success that eBay has had since is the result of that secret meeting in 2001, hence the astounding amount of money involved in the suit.
The interesting thing, and something that may be relevant for this case in the future, is that eBay did apply for similar payment method patents, which would unfortunately lend validity to XPRT’s own patent.
Anyway, this is further evidence, if more evidence was needed, that many software patents are a terrible idea, get in the way of true innovators, and are often misused by shady characters. When will the madness end?
During this year’s GikII, I presented a paper exploring some legal issues about augmented reality. We may be in the threshold of a revolution in the way we interact with mobile devices, with geolocation technology becoming more sophisticated, location-aware devices and services are increasingly relevant. The rise of Gowalla, FourSquare and similar sites opens up social media to the geolocation revolution.
There is a lot of room for making exaggerated comments about augmented reality, but anyone who is tuned into technology trends will tell you that there is something big just over the horizon. Having said that, my GikII paper mostly explored fan art and the creation of fan layers. During the question and answer session, one of the topics that was discussed was that one of the first uses of these new technologies would be porn, the deployment of sexy avatars, and the defacing of public spaces with all sort of crude symbols. I must admit that this had not crossed my mind too much, perhaps a display of my own naiveté.
However, just last week I read about Grindr in The Guardian, and a lot of pieces have started falling into place. Grindr is an iPhone app that allows users to use geolocation technology to let each other know that they are available for sexual encounters. Apparently, it has created a huge sexual revolution in the gay scene in some mayor cities, and there are plans to deploy a similar app for the heterosexual market. It is quite a commentary about modern life that sex seems to be driving innovation.
Grindr got me thinking about the potentials and pitfalls of augmented reality driven by sex. Will the sex industry drive geolocation innovation, or will it hinder it as regulators become concerned about potential misuses of the technology? I don’t think we have even started to consider the full implications of these technologies. If parents, teachers and regulators are just beginning to get to grips with sexting and other similar uses of mobile devices, then the appearance of a Grindr-like application for teenagers would completely take everyone unaware.
One thing is for certain, the technology is here. The usual warnings about genies, bottles, boxes and slippery slopes apply.
Last week the excellent Internet Cases blog reported on an new court case involving Creative Commons licences: GateHouse Media, Inc. v. That’s Great News. I haven’t been able to find the complaint online yet (if anyone has seen it, please drop me a link). Going by Evan Brown’s description, this seems like a straightforward situation initiated because of commercial interest clashes. GateHouse Media publishes daily and weekly local newspapers, as well as several local-oriented websites. Some of their content is released under a Creative Commons licence. That’s Great News is a company that prints out news items and turns them into a plaque, and it is directed to people who are mentioned in the news, so that they will have a memento of their 2 seconds of fame. GateHouse Media provides a similar service, so they have sued the plaque company for copyright and trademark infringement, and unfair competition. What is really interesting is that they have also sued under breach of contract of their Creative Commons licence.
There are some interesting legal issues here about the interaction between copyright, fair use and contract. Most of these have been dealt with in great detail by Aurelia Schultz at the 1709 blog. The main legal question is whether That’s Great News is indeed infringing copyright, and the answer according to Aurelia is that there is 7th Circuit precedent that similar actions have not been deemed as derivative works, and therefore are not infringing. The other legal question that Aurelia accurately points out is that one cannot use a CC licence to contract out of fair use and other copyright exceptions.
This case is just one of a growing number of cases that is trying to explore the interaction between copyright and contracts, this is one of my pet subjects so I won’t bore you with the arguments, but if you are interested you can read an article about the subject here. There are however two points about this case that I have not seen explored elsewhere.
The first is that I am troubled by the use of Creative Commons licences by GateHouse Media. I may be entirely mistaken, but it seems like GateHouse has released some content under CC licences precisely to stop companies like That’s Great News from doing precisely what they are doing, namely to make commercial derivatives of the original work. It cannot be a coincidence that GateHouse is releasing some of its content under an Attribution-NonCommercial-NoDerivatives licence, which is the less open and more restrictive CC licence out there. What I find disturbing is that a commercial enterprise looked at different licensing options and chose a CC licence in order to restrict commercial uses of the work, which seems to be counter to all of the definitions of openness and freedom that people in the open camp use, and lends credence to the many arguments against NonCommercial CC licences out there. When a company believes that the best way to close down content is to use a CC licence, then there must be something wrong happening.
The other interesting issue in this case is a more subtle question, one that I have encountered since the early days of open source licensing. There seems to be a myth that free and open licences, including CC, require court cases in order to prove that they are enforceable. I remember that this was a common FUD (Fear, Uncertainty, Doubt) tactic employed by free software detractors for years in order to instil doubt in the minds of potential adopters of FOSS. The argument went something like this: “The GPL has not been tested in court, so you should not adopt it”. I remember clearly being at a conference where a well-known German professor dismissed the GPL as entirely unenforceable because it had not been declared valid by a court of law. How ironic that the first jurisdiction to enforce the GPL was Germany.
I have been reminded of this because of an article by Glyn Moody entitled Are the Creative Commons Licences Valid? This is going to be one of the few occasions when I disagree with Glyn. I do not think that CC licences, or any licence to that effect, requires a court decision in order to be valid. There are thousands and thousands of commercial End-User Licence Agreements that are never tested in court, yet they manage to have legal effects and are usually followed to the letter by its users without producing a conflict. True, many licences contain clauses that when analysed by legal practitioners and scholars may seem doubtful. But even then a court case is required to declare the clauses invalid. One could say that a licence is valid until proven otherwise.
Having said that, CC licences have already been declared valid in the Netherlands, Germany and Spain (and Bulgaria, thanks Javier). While favourable court cases help to promote CC adoption by commercial enterprises and the public sector, it is important to remind everyone that there is no reason to doubt their validity. CC licences have been the subject to incredible legal scrutiny in hundreds of jurisdictions, they have been ported and translated to accommodate legal systems around the world, and there has been little doubt in the literature about their validity. My humble opinion is that they are as valid as any commercial licence out there.
The Turkish Internet has been crippled in recent weeks due to an unprecedented conflict between the Turkish courts and Google. If you are not familiar with the background to this case, you will find some excellent write-ups in various places (such as this BBC summary).
In short, Turkey passed a law in 2007 that created the criminal type called “Crimes against Atatürk”, this being Mustafa Kemal Atatürk, the founder of Turkey. The law allows a court to block websites where there is enough suspicion that a crime has occurred. YouTube being YouTube, apparently there are such videos uploaded to the site, so a court decided to cut-off all access in Turkey to YouTube. As soon as this happened, a game of cat and mouse began, as the technically-minded elites started trying to circumvent the block. One way of doing this was to use alternative IP addresses for YouTube, so instead of typing a URL, they would type an IP address. When the authorities found out, they blocked these, but those addresses are also used by Google to supply many of their other popular services, such as Google Maps, Analytics, Gmail, Blogger, and others. So the result is that most of Google’s services are unavailable in Turkey because of a handful of videos which may or may not be insulting a long-dead leader, which probably would have been seen by a handful of people in the first place.
Internet censorship of this magnitude makes me unspeakably angry, I just cannot stand regulatory stupidity of this kind. There are so many wrong things about the Google ban that I do not know where to begin. There is the fact that censors believe that they have the power to decide what others should see, and the unspoken paternalistic understanding that they know best. There is the ease with which people will be offended when their flag / guru / dear leader is insulted online, I cannot understand how people take one look at a video on YouTube and decide to be offended to the extent that the entire site must be shut down. There are hundreds of videos on YouTube that I find objectionable, but if I do not like them the back button is quite easy to press. There is also the unspeakably idiotic notion that shutting down a large part of the Internet is in some way a proportional response to a small video available online. The words nut and hammer come to mind. Millions affected by the perceived offence of a few…
But what interests me about the case is not really the censorship angle, as important as it may be. Hidden in the reports is an even more vital legal issue, that of jurisdiction and taxation. It is possible that Turkey is using the censorship excuse to lure Google into its shores so that it will establish an office there and therefore pay taxes. Ankara officials have hinted that the ban will be lifted if Google opens offices in Turkey and starts paying taxes there. Currently, Google has its main European offices in Ireland, with several regional offices in other countries. For jurisdiction purposes, this is important, as opening an office may increase the company’s liability to civil and criminal enforcement. Take the much-publicised Italian criminal trial and you will start to see why Google may want to keep offices open only in a small number of strategic locations.
If I were Google, the last place I would want to open an office is precisely in Turkey, the potential for criminal liability would be too great. So what interest me is that regulators may be using censorship as the lure to attract companies so that they can tax and sue them at will. I know what my choice would be, Google can afford giving up on the Turkish market. Can Turkey afford being seen as the troglodytes of Europe?
Last Wednesday I attended Professor Eben Moglen’s lecture in Edinburgh, he is presenting here for the second time in two years. Here are some notes.
Defining the problem: Software is everywhere, it’s in cars, hospitals, in buildings, and in all other sort of devices. “There is software in the things that power people’s hearts”, there are no requirements on the type of software that goes into those devices. Software powers airplanes, and software fails. All of these software solutions sometimes fail because the software has been acquired from providers with indemnities, or acquire it unlawfully. Providers do not have requirements to disclose the provenance of a piece of software.
If software has clashes in the system in an airplane, it is difficult to determine how it was acquired, or what incompatibility may have caused the failure. We allocate more resources to areas that are less important than software-related activities, which may create some liability nightmares. Moglen said “Liability nightmares may be good things for some people in the audience”. However, these are serious subjects where software security may be a matter of life and death, so why the lack of oversight?
Another example are potential issues with software that powers financial markets. In financial markets there have been all sorts of strange goings-ons with software, yet manufacturers do not have the ability of declaring the software provenance, and potential incompatibilities.
Linus’ Law “with enough eyeballs all bugs become shallow”. This is one of the most important aspects that make free software secure. Peer review and peer examnation of code produce more resilient software. We need civil society to stop failures the likes proprietary software may be causing. “We need inspectable and examinable materials in the building blocks of our architectures”
Europe does not allow free software in medical devices. Violating GPL is bad form from practical and moral reasons. There is controversy with regards to the security differences between Free Software and proprietary software in the same way that there is controversy about the way that supposedly some people mistakenly press accelerators when they want to press the break.
Questions: Person asks why open licences are not more open to discussion, she clearly does not know the drafting process of the GPL v3.
My take: Professor Moglen was clear that this is a topic in its earliest stages of development, and it shows that it is a work in progress. I agree that free software is more secure, and that we should perhaps encourage it more in situations where lives matter.
TechnoLlama is the online persona of Andres Guadamuz, law lecturer at the University of Edinburgh. The blog covers several Cyberlaw topics, with emphasis on open licensing, digital rights, software protection, virtual worlds, and llamas. While the blog tackles these issues in a light-hearted and nonchalant manner, some serious points filter through from time to time.
I have finally finished reading SAS Institute Inc v World Programming Ltd (the IPKat beat me to it). This is an important software copyright case for many reasons. After a decade of mostly software patent cases in English courts, it is refreshing to see a complex software case where it truly belongs. I believe this might be one of the most interesting software cases in a while, not least because Arnold J has referred most of the important questions to the European Court of Justice.
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