I'm getting so tired of reading Slashdot comments in which the ill-informed hold forth on the fair use exception in copyright law. It is particularly galling when someone makes a pronouncement about a "truth" of fair use that is actually fact-dependent. For example, use of copyrighted materials for teaching has been recognized as falling under the fair use exception. However, that doesn't mean that a professor can just copy a few chapters of this book, a few from that book, and some from another book, slap it together, and use it as a coursebook without paying any licensing fees.

Fair use is a balance that cannot be codified with the sorts of clean boundaries that apply in mathematics. The law is about human behavior, and human behavior gets messy. It gets particularly messy when you're talking about the legal fiction that is copyright law. Pretending that it isn't, and attempting to distill it down to easy pronouncements doesn't help our understanding of it, any more than Lou Dobbs is really telling us what's going on in the money markets. Sure, a clean, crisp pronouncement goes down easy, but it's nothing but sugar water. Unfortunately many people like the taste of sugar water, and they spread the same misinformation to other people. It happens over and over again here on Slashdot, every time a story about copyright pops up.

I know just enough about TCP/IP to be dangerous. So I don't hold forth on the subject. I wish the vocal ill-informed would realize that just because they've read a few comments by other ill-informed Slashdotters doesn't mean that they actually know anything about fair use. Wisdom of the crowds, my ass.

The EFF's Fair Use FAQ

Am I the only person in the world who is being driven to madness by the profusion of blog posts that are nothing more than lists?

Here's a great example: 101 Resources to Help You Build a Better Web Form. WTF? This is a LIST OF LINKS. If I wanted lists of links, I'd go back in time to 1994 and use Yahoo!

Every time I check the del.icio.us home page, it's the same thing. Half the bookmarks are to blog posts with titles like, "15 Ways to Make Your Life Better." Why not 16? Why not 20? Are each of the methods in this list of equal value? What are the selection criteria?

Yes, I understand that this is really all about SEO whoring. Yes, I understand that some posts with titles like, "25 Rounded Corners Techniques with CSS" are helpful. But creating lists of links isn't writing. It's duplicating what directories and search engines already do.

Lists are easy. Lists require no serious critical thinking or discrimination. But they're not terribly helpful either. I don't want 25 rounded corners techniques any more than I want to use 25 different email applications. If you're going to talk about rounded corners or fixing my life or fixing my life with rounded corners, give me some human analysis and some context. Otherwise you're giving me nothing I couldn't get from an automated query.

His latest is full of clever insights.

The XBox, rather than a money pit, has been an "experiment", merely the first stage in a Microsoft plan to roll out their own PC.

Rolling out Microsoft branded PCs is a good idea because, um... "perhaps making a Microsoft computer that adheres to the often-ignored Microsoft reference designs might reinvigorate the once-lively PC buzz." I know I'll be excited by a machine that FINALLY adheres to the Microsoft reference designs.

This is also a good move because Microsoft has been successful at playing follow-the leader in the past: "Microsoft has been very successful with this copycat strategy." So copying Apple's ill-fated Mac clone move is a good idea? When you're competing against other hardware vendors, there's a built in conflict of interest. If Microsoft wants to advance the Linux cause, there's no better way than to start shipping Microsoft-branded PCs in the United States. Michael Dell and the boys and girls at H-P won't take such a move lying down.

Dvorak's answer to this is that "[Microsoft] has them over a barrel since their only alternative is Linux, which has little chance of becoming popular anytime soon." Uh, where have you been, bro? And do you really think that forcing your hardware partners into a corner with your offerings will keep them *away* from Linux? How would you react if all of the big PC OEMs jumped on the Linux bandwagon, developing their own distros and contributing to kernel development?

Dvorak presumes too much foresight from Microsoft. They put the XBox out there as a way to cover their asses from a flank attack by consoles. Dvorak also thinks "[a]n inordinate effort has been made to integrate the Xbox with the PC, via Microsoft Media PC software." Right. Obviously. I mean, Microsoft wouldn't want to try and standardize their software platforms as much as possible unless they were secretly planning (for the past SIX years) to roll out their own PC hardware. I don't buy the argument that this is a deliberate, well-orchestrated clever Microsoft plan.

If Microsoft does roll out PCs in the US market, it will be just another example of Microsoft reacting to a marketplace that is no longer in its grip. And it will only serve to push hardware OEMs into the arms of Linux.

The "own the OS and let others build the hardware" model was good while it lasted.

If Microsoft really wanted to take some risks and be bold with its future, the company would have a team building a completely new OS, from the ground up, along with the next-generation hardware to run it. And no, Surface doesn't count. Surface is a great concept, but it's a $5-10k table running MS Vista, and it took six years to create.

Give the commando team a year, some money, and a building of their own. If they come up with something good, sell it. Pull a Procter & Gamble and compete against yourself. Stop milking the Windows/Office cow. The teats are going dry, boys and girls.

Here's a summer experiment. Instead of spending an hour a day watching TV "news", do the following:

• Stay up on headlines with an RSS feed to whatever news source you prefer. Check once in the morning for ten minutes, and once in the evening for ten minutes.
• Read the weekly print version of The Economist. It is perfect breakfast reading.
• Every Sunday pick up a copy of the New York Times, the Washington Post, the Wall Street Journal, the Los Angeles Times, or the Chicago Tribune.

After a month, and probably well before that point, your fear will disappear. The bleach-blonde news delivery vector will no longer seem necessary. You'll feel much better informed. You'll realize that there is no real point in watching a talking head interpreting the news for you in front of the White House, or in a flashy TV studio. You'll also realize that video footage often distorts larger truths and serves only to titilate. It is the crack that keeps you coming back.

Once you kick the habit, you may never go back.

Some people feel that MPEG-4 is inherently evil because it is encumbered by patents. Given that tools for transcoding to and manipulating Ogg Theora are sometimes difficult to work with, how many Open Source users/advocates simply refuse to use MPEG files (not to mention QuickTime and Windows Media) they come across on the Net? Are a very small number of users making a big deal about this, or is there a widespread feeling that Open Source users have an imperative need for a patent-free video format? If so, what are the tangible benefits of Theora for users of proprietary operating systems?

I'm taking Copyright this semester, and I'm loving the class so far. The textbook, Copyright in a Global Information Economy is (again, so far) excellent. As I read about the distinctions between copyright and patent law, I can't help but believe that Andrew F. Knight's monstrously arrogant and obnoxious moneygrubbing attempt to patent a storyline will fail. His patent application is well-covered terrain, and many sharp minds have expressed their opinions about why this moronic endeavor flies in the face of common sense and good public policy.

As I read the cases in my textbook, however, I find a more basic rationale for rejecting the claim. Authors write. Inventors discover. The distinction between copyrightable creative works and patentable inventions goes back to before ratification of the U.S. Constitution., and in spite of (or perhaps because of) the morass we're in with patent law at present, the last thing the USPTO will do is radically alter the balance between copyright and patent. If they grant a patent, there will be a court challenge, and the USPTO is already backpeddaling on recent enlargements to the universe of patentable discoveries (systems and methods claims have already been questioned in the Supreme Court, for example).

As for Andrew F. Knight, I find his behavior to be the reprehensible but not surprising product of a society that has tilted so far toward the pursuit of individual profit, whatever the effect on society at large. We all have to make ethical decisions every day, whether we work for Enron or Sun Microsystems or the US Army or for Knight and Associates. Maybe, if we're lucky, the overreaching of people like Knight will start to shift the public at large toward a broader conception of prosperity, one that doesn't focus on using the law to protect a few at the expense of many.

I've been doing a lot of reading about open source licenses lately. There are many books and articles about the "open source phenomenon" but to my knowledge there are really only a handfull of books that explore the nitty-gritty of actual open source licenses. Two I've read recently:

Lawrence Rosen's meticulous Open Source Licensing: Software Freedom and Intellectual Property Law was published in 2004 and is available in print or in PDF segments. I found the hard copy worth buying - it is well-thumbed and full of highlighted areas now that I've read it straight through then come back to reread sections as detailed questions pop up. This is a dense book, and it doesn't provide black and white answers. However, it is worth the effort.

Understanding Open Source and Free Software Licensing, by Andrew M. St. Laurent was published in 2004 and is also available in print or PDF. This book jumps more quickly into the licensing terms of specific licenses, making it somewhat less valuable as an overview book but a bit better for examining the fine details of some licenses. It also covers the Creative Commons licenses and goes into some detail about why shared source licenses are quite different from open source licenses. When you are using one of the big open source licenses (GPL, BSD/MIT, Apache, MPL) and need a solid reference, this book does the trick. It is well-written, clear, and well organized.

After getting engaged in the recent discussion about Stallman's bashing of CC, I really like Ken "Ceasar" Fisher's take on it. The gist of Fisher's argument is that we shouldn't get pissy when people come up with a means of providing more options and more flexibility. The silver-bullet crowd is painting this as a battle between good and evil, and they seem to relish throwing stones at the people are trying to actually come up with workable alternatives to the current logjams.

Get out of the ivory tower and realize that commerce is not evil. Protecting intellectual property is not evil. Balancing the rights of content creators and the rights of society at large is the goal. Focus on workable solutions. Try different approaches. Think win-win instead of zero-sum.

I'm starting to think that the hype bubble surrounding Web 2.0 is getting to the point where it is now truly damaging. The latest proof came when Yahoo announced the results of a very good quarter, and the market hammered them for failing meet expectations.

My expectations for the end user effects of Web 2.0 are still very high. This really is the part of the Web revolution where things get interesting. We're finally past the crawl stage and are starting to shakily stand up. However, the brain trust that has pushed Web 2.0 as a huge driver of financial market change have seriously missed the boat. One of the salient factors of Web 2.0 companies is that their capitalization requirements are extremely minimal. My guess is that many if not most of the creators of these companies aren't interested in trying to become the next Brin or Filo. You can actually build a solid company with organic growth. It's a concept the tech investors just don't seem to understand. You just need a few sharp, hard-working people who know what they're doing. Hardware costs have plummeted, and there are a host of excellent services that have radically reduced the time and money required to create a high tech startup, particularly a Web 2.0-focused company.

Zeldman, et. al. have already begun the gripe-fest about Web 2.0, and I think a lot of that has to do with annoyance at the VCs and other leeches who think they can make a bundle off the insight, determination, and hard work of entrepreneurs. I just hope that the increasing clamor of the Financial Masters of the Universe doesn't drown out the great stuff that so many new companies are creating on the Web.

Since this is my journal, I can write whatever dain-bramaged pontifications I like. Plus, unlike some of our friends in the tech journalism trade, I don't make any money prognosticating, and nobody relies on my opinions for anything other than a laugh. So here is my prediction for the upcoming MacWorld event in San Francisco:

I think the biggest Apple announcement at MacWorld won't be the new Intel-powered laptops, which will likely appear. It won't be the newest iPod. It'll be a radically expanded content distribution platform in the form of the iTMS, which will carry a boatload of content from all the big networks plus a lot of the long tail, smaller networks like Discovery, et al. I could see big money in Apple providing syndicated shows from the past (original Star Trek, the Steelers v. Raiders "Miraculous Reception" game, David Frost's interview with Kissenger, etc.).

FrontRow will be updated and available for all Bluetooth-capable Macs. Industry analysts will finally wake up and realize that while Apple has been letting everyone think it is pursuing a razor blade model (using the iTMS solely to drive sales of iPods), they're actually doing something far more sophisticated. First they build the iTMS to assist iPod sales, then they turn the iTMS into a profit center of its own, by offering a compelling new distribution mechanism for media that were traditionally only offered via broadcast.

Oh, and one more thing. A new Mac mini will be released. Bluetooth. WiFi. Bigger hard drive. You can plug it in to an external monitor or your TV and use FrontRow to control it. You go to iTMS, download an old episode of The Six Million Dollar Man, hit the play button on your FrontRow remote, and watch it. Finally, after all these years, we'll have the convergence of TV and computers that everyone has been talking about since the mid-1990s. Ironically, back then nobody predicted it would take this long, or that Apple would be the company to make it happen.

- - -

Feel free to lampoon me when none of the above actually come to pass. :-)

A few weeks ago I wrote about an ethical dilemma I had while gathering prep material online for law school midterms. Concern took me to task for accepting the absurd statement one school's website placed above a set of links to study materials, which essentially said, "Here are a bunch of links, but we don't want anyone outside our school to use them." These were direct links, on an open site with no directory logins or other security.

I was looking at the issue not as a legal one, but as an ethical one. Lately I've been struggling to come up with a clear ethical framework from which to determine for myself whether a particular business action or law is right or wrong. There's an awful lot of binary thinking behind arguments about DRM, filesharing, and related issues. Every time legal action comes up, the usual discussions take place, with some people arguing that content creators should have no ability to limit what can be done with that content after sale, and others arguing that intellectual property is the foundation of a postmodern economy and therefore content owners should be allowed to place whatever restrictions on content they please.

I think that intellectual property and fair use are both more important than ever before. We need a radically shorter copyright term. We need to preserve fair use rights. We need a more transparent and discerning USPTO. Corporations will do just fine if we modify the IP regime to be more consumer-friendly. I think it will stimulate competition, in contrast to the current system, which rewards big corporate entities and submarine patent holders, at the expense of small/midsize businesses and everyday consumers.

In spite of all that, I don't buy the argument that it is ethically sound to download thousands of songs I never paid for from a P2P network. We're not talking about the mix tapes of my youth. The scale is orders of magnitude greater. The music industry has been screwing customers for decades, and is a bloated middleman. Still, I don't believe that the concept of fair use can logically be extended to incorporate the swapping of files from purchased CDs. If fair use was designed to give customers the ability to use purchased works in a reasonable fashion, the original Napster was designed so that Napster could profit while people traded purchased works in an unreasonable fashion.

Which brings me back to the post from a few weeks ago. Although legally the school's directive against use of its materials made no sense, I wondered if the intent of an actor should matter to me. Should I care that the professors at this school posted material on the Web but did not want people outside their school to use it?

Concern focused our discussion quite well with this bit:

There is an important detail emerging here, which is the "security accident." I would say there is an ethical distinction distinction between reading an accidental release of information, and a paper that is willfully published but with this ridiculous expectation.

In other words, in the case of the person who expects to be paid when people look at him: is he observed while walking down the street, or after you sneak into his private quarters for a free peek? As far as the internet goes, I would again draw a complaint with your analogy of "leaving the door unlocked." I'd say there is no door, and no walls. It's more a matter of, "I'd like to be naked, however, I feel the need to do this while driving down the highway, so I'm doing that, and I'm still upset you're staring at me, just because I forgot to buy tinted windows." Alright, now I'm just going metaphor crazy. Obviously it depends on the situation. I like to think it should be clear enough what someone expected would be a secret, if they are doing any reasonably job of trying to keep it. I also take a dim view of anyone who believes the government should or could somehow be expected to put your cat back in your bag, if it gets out.

I thought about that for a bit before I really could no longer ignore my midterm preparations. After exams were done, I talked with a few of my (non-law school) friends about it, to see what they thought. One of them made the point that the entire purpose of the Internet is to spread information. The school wanted to take advantage of this while arbitrarily imposing their own constraints, without resorting to the minimal effort of something like a password-protected directory.

Something still bothered me, though. The people who posted the study materials on their website explicitly asked that I not use the materials. Their request was obviously unreasonable. But would I be in any way worse off if I did not download the materials? While it takes only a click on a link to download the materials, it also only takes a click for me to go elsewhere.

I think the answer is that although I could easily just not download the material, information really does want to be free, in that humans need it. Without the sharing of information, we wouldn't be humans. If our primate predecessors had not shared information, we'd all be barely surviving without tools, fire, or any of the other spiffy things that followed. Protection of information is, as Concern was telling me, a human construct. I see it as a trade off. We constrain the flow of some information so that it can enrich people who combine information in new ways. I doubt that a commons-only approach could ever really work. But a world where all information is controlled by private actors is far more terrifying to contemplate.

Did I download those study materials? No. Will I download them next semester? Maybe. They're out there on the open Internet, in plain view, just like the man driving his car naked on the freeway.

I'm prepping for fall law school exams, and a member of my study group emails the URL to another law school's site. It contains a bunch of old exams and sample answers, but the header at the top of the page says:

The sample exams and exercises on this page are made available for the sole purpose of assisting students of the X College of Law in their preparation for examinations. Any other use is prohibited. Copyright is retained by the authors.

I'm a firm believer in open source, limiting copyright terms, and restricting the reach of patents. But I also believe that the creator of a work should be given the right to chose the degree of copyright protection they place on their work.

I doubt very much that this university would take the effort to hunt me down and prosecute me, should I make use of the exams and answers for my own purposes. There are probably also dozens, hundreds, or even thousands of people around the world using these materials in contravention of the wishes of the people who created them.

Still, I can't bring myself to do it. The mantra "Information wants to be free" makes sense in a larger, abstract sense. But sometimes in application the phrase is a bit like the oft-heard assumption, "Everything happens for a reason." Sure, it happens for a reason. You just assign the reason for the event after it occurs, subconsciously, without even realizing it. Information may want to be free, but that is only true because we humans want it to be.

As a veteran of the all-volunteer US Army who served in the early 1990s, I can't say I know much more than most Americans about what's really going on in Afghanistan and Iraq, save what I read in newspaper and magazine articles. I do know what I don't know (to paraphrase the tragic leader of our Department of Defense). Those of us back here in our armchairs don't know what it's really like, and no amount of movies or books or first-person-shooters will give us the feeling of being in a combat zone.

Another thing I know is that the "mistakes happen in war" excuse is total crap. If you were running a business, would the board of directors allow the CEO to get off the hook so easily? People are putting their lives in the hands of America's leaders, and those leaders have proven themselves remarkably incompetent in the handling of the war in Iraq, from the run-up to today. It's been four years since 9/11, and I'm pissed off that the American public is only just now coming around to the notion that they've been allowing a small band of self-congratulatory, unimaginative incompetents to run our foreign policy.

Here's hoping the situation improves. I think the people in uniform deserve much better leadership.

Am I the only person who is driven to distraction by "colonized" book and article titles? I bumped into this one today while reading my Torts casebook:

The Grin Without a Cat: Claims for Damages from Toxic Exposures

Would it really have killed them to name the article something like "Evolving Standards in Claims for Damages from Toxic Exposures?" Everything has to be sold now. Nothing can just be presented at face value. No, we're all far too clever and cute for that.

Now I'll go read the case of Gammon v. Osteohathic Hospital of Maine, Inc. At least the stuffy old Supreme Judicial Court of Maine maintained their dignity and didn't give it the title, White as a Ghost: Gammon's Emotional Distress v. Osteopathic Hospital of Maine, Inc.'s Unforced Error.

The guy who filed a patent application for a storyline thinks he's some sort of beacon of light for Objectivism, judging by the text of his filing. This is unsurprising, given that he has a technical background. Ayn Rand's writings tend to attract tech people, perhaps because many of them have an overdeveloped sense of their contributions to society. Yes, technology drives everything now, but you still can't make a modern society function without bankers, designers, truck drivers, construction workers, and dentists. Nobody here is Howard Roark, OK?

What I find particularly galling is that many of the people who buy into the Randian notion that unmitigated egoism will make the world a better place. Then they use the very collective mechanisms (in the case of Storyline Boy, the USPTO) they claim to abhor, in pursuit of their own supposedly pure goals.

Maybe that's the danger inherent in ideology. Once you buy into it completely, you never again have to think about what you're doing. You just point back to your religious/philosophical canon and call yourself a believer. Whether you actually come close to following that creed is beside the point.