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“Open policy” is the most promising copyright reform

Thursday, June 26th, 2014

Only a few days (June 30 deadline) for applications to the first Institute for Open Leadership. I don’t know anything about it other than what’s at the link, but from what I gather it involves a week-long workshop in the San Francisco area on open policy and ongoing participation in an online community of people promoting open policies in their professional capacities, and is managed by an expert in the field, Timothy Vollmer. Read an interview with Vollmer (wayback link to spare you the annoying list-gathering clickthrough at the original site, not least because its newsletter is an offender).

The institute and its parent Open Policy Network define:

Open Policy = publicly funded resources are openly licensed resources.

(Openly licensed includes public domain.)

…

Now, why open policy is the most promising knowledge regulation reform (I wrote “copyright” in the title, but the concept is applicable to mitigating other IP regimes, e.g., patent, and pro-commons regulation not based on mitigating IP):

  • Most proposed reforms (formalities can serve as an example for each mention following) merely reduce inefficiencies and embarrassments of freedom infringing regimes in ways that don’t favor commons-based production, as is necessary for sustainable good policy. Even if not usually conceptualized as commons-favoring, open policy is strongly biased in that direction as its mechanism is mandate of the terms used for commons-based production: open licenses. Most proposed reforms could be reshaped to be commons-favoring and thinking of how to do so a useful exercise (watch this space) but making such reshaping gain traction, as a matter of discourse let alone implementation, is a very long-term project.
  • The concept of open policy is scalable. There’s no reason as it gains credence to push for its expansion to everything receiving public or publicly interested support, including high and very low culture subsidy. At the extreme, the only way to avoid being subject to some open policy mandate would be to create restricted works in an IPer colony, isolated from the rest of humanity.
  • In order to make open policy gain much more credence than it has now, its advocates will be forced to make increasingly sophisticated public policy arguments to support claims that open policy “maximizes public investment” or to shift the object of maximization to freedom and equality. Most proposed reforms, because they would only reduce inefficiency and embarrassment, do not force much sophistication, leaving knowledge regulation discourse rotting in a trough where economists abandoned it over a century ago.
  • Open policy implementation has the potential to destroy the rents of freedom infringing industries. For sustainable good policy it is necessary to both build up the commons as an interest group and diminish interest groups that depend or think they depend on infringing freedom. It is possible for open policy to be gamed (e.g., hybrid journal double dipping). As troubling as that is, it seems to me that open policy flips which side is left desperately clawing for loopholes contrary to the rationale of policy. Most reform proposals at least implicitly take it as a given that public interest is the desperate side.
  • Open policy does not require any fundamental changes to national law or international treaties, meaning it is feasible, now. Hopefully a few reformists have generally grasped the no-brainer concept that a benefit obtained today is more valuable than one obtained in the future, e.g., in 95 years. It also doesn’t mean that open policy is merely a “patch” in contrast the “fixes” of most proposed reforms — which aren’t fixes anyway, but rather mitigations of the worst inefficiencies and embarrassments of freedom infringing regimes. If open policy is a patch, it is a one that helps the body of knowledge regulation to heal, by the mechanisms above (promoting commons production and discourse, diminishing freedom infringing interests).

…

In my tradition of critical cheering, consider the following Open Policy Network statement:

We have observed that current open policy efforts are decentralized, uncoordinated and insular; there is poor and/or sporadic information sharing.

As illustrated by the lack of the Open Source Definition or any software-centric organizations on Open Policy Network lists of its guiding principles and member organizations. Fortunately software is mentioned several times, for example:

If we are going to unleash the power of hundreds of billions of dollars of publicly funded education, research, data, and software, we need broad adoption of open policies.

Hopefully if the Open Policy Network is to become an important venue for moving open policy forward, people who understand software will get involved (by the way, one of the ways “publicly funded” is scalable is that it properly includes procurement, not only wholly funded new resources), e.g., FSFE and April. I know talking about software is scary — because it is powerful and unavoidable. But this makes it a necessity to include in any serious project to reform the knowledge economy and policy. Before long, everything that is not software or suffused with software will be obsolete.

Posted in Commons, Creative Commons, Economics, Inequality Promotion, Intellectual Protectionism, Open Access, Open Source, Patents, Peeves, Politics, Public Domain | 5 Comments »

API commons

Thursday, May 29th, 2014

Notes for panel The API Copyright Emergency: What’s Next? today at API Con SF. The “emergency” is the recent decision in Oracle v. Google, which I don’t discuss directly below, though I did riff on the ongoing case last year.

I begin with and come back to a few times Creative Commons licenses as I was on the panel as a “senior fellow” for that organization, but apart from such emphasis and framing, this is more or less what I think. I got about 80% of the below in on the panel, but hopefully still worth reading even for attendees.

A few follow-up thoughts after the notes.

…

Creative Commons licenses, like other public licenses, grant permissions around copyright, but as CC’s statement on copyright reform concludes, licenses “are not a substitute for users’ rights, and CC supports ongoing efforts to reform copyright law to strengthen users’ rights and expand the public domain.” In the context of APIs, default policy should be that independent implementation of an API never require permission from the API’s designer, previous implementer, or other rightsholder.

Without such a default policy of permission-free innovation, interoperability and competition will suffer, and the API community invites late and messy regulation at other levels intending to protect consumers from resulting lock-in.

Practically, there are things API developers, service providers, and API consumers can do and demand of each other, both to protect the community from a bad turn in default policy, and to go further in creating a commons. But using tools such as those CC provides, and choosing the right tools, requires looking at what an API consists of, including:

  1. API specification
  2. API documentation
  3. API implementations, server
  4. API implementations, client
  5. Material (often “data”) made available via API
  6. API metadata (e.g, as part of API directory)

(depending on construction, these could all be generated from an annotated implementation, or could each be separate works)

and what restrictions can be pertinent:

  1. Copyright
  2. Patent

(many other issues can arise from providing an API as a service, e.g., privacy, though those are usually not in the range of public licenses and are orthogonal to API “IP”, so I’ll ignore them here)

1-4 are clearly works subject to copyright, while 5 and 6 may or may not be (e.g., hopefully not if purely factual data). Typically only 3 and 4 might be restricted by patents.

Standards bodies typically do their work primarily around 1. Relatively open ones, like the W3C, obtain agreement from all contributors to the standard to permit royalty-free implementation of the standard by anyone, typically including a patent license and permission to prepare and perform derivative works (i.e., copyright, to extent such permission is necessary). One option you have is to put your API through an existing standards organization. This may be too heavyweight, or may be appropriate yet if your API is really a multi-stakeholder thing with multiple peer implementations; the W3C now has a lightweight community group venue which might be appropriate. The Open Web Foundation’s agreements allow you to take this approach for your API without involvement of an existing standards body?. Lawrence Rosen has/will talk about this.

Another approach is to release your API specification (and necessarily 2-4 to the extent they comprise one work, ideally even if they are separate) under a public copyright license, such as one of the CC licenses, the CC0 public domain dedication, or an open source software license. Currently the most obvious choice is the Apache License 2.0, which grants copyright permission as well as including a patent peace clause. One or more of the CC licenses are sometimes suggested, perhaps because specification and documentation are often one work, and the latter seems like a “creative” work. But keep in mind that CC does not recommend using its licenses for software, and instead recommends using an open source software licenses (such as Apache): no CC license includes explicit patent permission, and depending on the specific CC license chosen, it may not be compatible with software licenses, contrary to goal of granting clear permission for independent API implementation, even in the face of a bad policy turn.

One way to go beyond mitigating “API copyrightability” is to publish open source implementations, preferably production, though reference implementations are better than nothing. These implementations would be covered by whatever copyright and patent permissions are granted by the license they are released under — again Apache 2.0 is a good choice, and for software implementation CC licenses should not be used; other software licenses such as [A]GPL might be pertinent depending on business and social goals.

Another way to create a “thick” API commons is to address material made available via APIs, and metadata about APIs. There, CC tools are likely pertinent, e.g., use CC0 for data and metadata to ensure that “facts are free”, as they ought be in spite of other bad policy turns.

To get even thicker, consider the architecture, for lack of a better term, around API development, services, and material accessed and updated via APIs. Just some keywords: Linked Open Data, P2P, federation, Lots of Copies Keep Stuff Safe, collaborative curation.

…

The other panelists were Pamela Samuelson, Lawrence Rosen, and Annette Hurst, moderated by David Berlind.

I’m fairly familiar with Samuelson’s and Rosen’s work and don’t have comments on what they said on the panel. If you want to read more, I recommend among Samuelson’s papers The Strange Odyssey of Software Interfaces and Intellectual Property Law which shows that the “API copyright emergency” of the panel title is recurrent and intertwined with patent, providing several decades of the pertinent history up to 2008. Contrary to my expectation in the notes above, Rosen didn’t get a chance to talk about the Open Web Foundation agreements, but you can read his 2010 article Implementing Open Standards in Open Source which covers OWF.

Hurst is a lawyer for Orrick representing Oracle in the Oracle v. Google case, so understandably advocated for API copyright, but in the process made several deeply flawed assertions could have consumed the entire duration of the panel, but Berlind did a good job of keeping the conversation moving forward. Still, I want to mention two high level ones here, my paraphrases and responses:

Without software copyright the software economy would go away. This is refuted by software development not for the purposes of selling licenses (which is the vast majority of it), especially free/open source software development, and services (e.g., API provision, the source of which is often never published, though it ought be, see “going beyond” recommendations above). Yes the software economy would change, with less winner-take-all monopoly and less employment for Intellectual Parasite lawyers. But the software economy would be huge and very competitive. Software is eating the world, remember? One way to make it help rather than pejoratively eat the world is to eject the parasites along for the ride.

Open source can’t work without software copyright. This is refuted by 1) software source sharing before software copyright; 2) preponderance of permissively licensed open source software, in which the terms do not allow suing downstream developers who do not share back; 3) the difficulty of enforcing copyleft licenses which do allow for suing downstream developers who do not share back; 4) the possibility of non-copyright regulation to force sharing of source (indeed I see the charitable understanding of copyleft as prototyping such regulation; for perspective on the Oracle v. Google case from someone with a more purely charitable understanding of copyleft, see Bradley Kuhn); and 5) demand and supply mechanisms for mandating sharing of source (e.g., procurement policies, distribution policies such as Debian’s).

These came up because Hurst seemed to really want the audience to conflate software copyright in general (not at issue in the case, settled in a bad place since the early 1980s) and API copyright specifically. Regarding the latter, another point which could have been made is the extent to which free/open source software has been built around providing alternatives to proprietary software, often API-compatible. If API copyright could prevent compatible implementation without permission of any sort, open source, competition, and innovation would all be severely hampered.

…

There is a recent site called API Commons, which seems to be an API directory (Programmable Web, which ran the conference, also has one). My general suggestion to both would be to implement and facilitate putting all elements of APIs listed above in my notes in the commons. For example, they could clarify that API metadata they collect is in the public domain, publish it as Linked Open Data, and encourage API developers and providers they catalog to freely license specifications, documentation, implementations, and data, and note such in the directories.

…

In order to get a flavor for the conference, I listened to yesterday morning’s keynotes, both of which made valiant attempts to connect big picture themes to day to day API development and provision. Allow me to try to make connections back to “API commons”.

Sarah Austin, representing the San Francisco YMCA, pointed out that the conference is near the Tenderloin neighborhood, the poorest in central San Francisco. Austin asked if kids from the Tenderloin would be able to find jobs in the “API economy” or would they be priced out of the area (many tech companies have moved nearby in the last years, Twitter perhaps the best known).

Keith Axline claimed The Universe Is Programmable. We Need an API for Everything, or to some extent, that learning about the universe and how to manipulate it is like programming. Axline’s talk seemed fairly philosophical, but could be made concrete with reference to the Internet of Things, programmable matter, robots, nanobots, software eating the world … much about the world will indeed soon be software (programmable) or obsolete.

Axline’s conclusion was in effect largely about knowledge policy, including mourning energy wasted on IP, and observing that we should figure out public support for science or risk a programmable world dominated by IP. That might be part of it, but keeps the focus on funding, which is just where IP advocates want it — IP is an off-the-balance-sheets, “free” taking. A more direct approach is needed — get the rules of knowledge policy right, put freedom and equality as its top goals, reject freedom infringing regimes, promote commons (but mandating all these as a condition of public and publicly interested funding is a reasonable starting place) — given these objectives and constraints, then argue about market, government, or other failure and funding.

Knowledge policy can’t directly address the Austin’s concerns in the Tenderloin, but it does indirectly affect them, and over the long term tremendously affect them, in the Tenderloin and many other places. As the world accelerates its transition from an industrial to a knowledge dominated economy, will that economy be dominated by monopoly and inequality or freedom and equality? Will the former concentrations continue to abet instances of what Jane Jacobs called “catastrophic money” rushing into ill-prepared neighborhoods, or will the latter tendencies spread the knowledge, wealth, and opportunity?

Posted in Commons, Creative Commons, Economics, Inequality Promotion, Intellectual Protectionism, Open Services, Open Source, P2P, Patents, Politics, Public Domain, Semantic Web | 1 Comment »

Without Intellectual Property Day [edit]

Saturday, April 26th, 2014
Without Intellectual Property Day by Parker Higgins of the EFF is quite good, and released under CC-BY. Clearly deserving of adaptation. Mine below, followed by a diff.

April 26 is the day marked each year since 2000 by the World Intellectual Property Organization (WIPO) as “World Intellectual Property Day”, in which WIPO tries to associate its worldwide pushes for more enclosure with creativity.

Celebrating creativity is a good thing, but when you’re a hammer, everything looks like a nail. For the World Intellectual Property Organization, it may seem like creativity and “intellectual property” are inextricably linked. That’s not the case. In the spirit of adding to the conversation, let’s honor all the creativity and industry that is happening without a dependence on a system intellectual property.

There’s an important reason to encourage and promote creativity outside the bounds of increasingly restrictive laws: to the extent such creativity succeeds, it helps us re-imagine the range of desirable policy and reduces the resources available to enclosure industries to lobby for protectionism — in sum shifting what is politically possible. It’s incumbent on all of us who want to encourage creativity to continue to explore and utilize structures that reward creators without also restricting speech.

Comedy, Fashion, Cooking, Magic, and More

In the areas in which intellectual freedom is not typically infringed, there is tremendous innovation and consistent creativity outside of the intellectual property system. Chefs create new dishes, designers imagine new styles, comedians write new jokes, all without a legal enforcement mechanism to restrict others from learning and building on them.

There may be informal systems that discourage copying―the comedy community, to take one example, will call out people who are deemed to be ripping off material―but for the most part these work without expensive litigation, threats of ruinous fines, and the creation of systems of surveillance and censorship.

Contributing to a Creative Commons

The free software movement pioneered the practice of creating digital media that can legally and freely be shared and expanded, building a commons. The digital commons idea is being pushed in more areas than ever before, including culture, education, government, hardware design, and research. There are some projects we’re all familiar with — Wikipedia is perhaps the most prominent, creating an expansive and continuously updated encyclopedia that is freely accessible under permissive terms to the entire world.

Focusing on this year’s World IP Day theme of movies, there have been some impressive contributions the commons over the years. Nina Paley’s feature animation Sita Sings The Blues, which she released into the public domain, has spread widely, inspired more work, and earned her money. The short films from the Blender Foundation have demonstrated cutting-edge computer graphics made with free software and, though they’ve sometimes been on the receiving end of bogus copyright takedowns, have been watched many millions of times.

Kickstarting and Threshold Pledges

Finally, crowdfunding platforms like Kickstarter and Indie-Go-Go have made a major splash in the last few years as another fundraising model that can complement, or even replace, copyright exclusivity. These platforms build on theoretical framework laid out by scholars like John Kelsey and Bruce Schneier in the influential “Street Performer Protocol” paper, which set out to devise an alternative funding system for public domain works. But most crowdfunded works are not in the commons, indicating an need for better coordination of street patrons.

Looking at movies in particular: Kickstarter alone has enabled hundreds of millions of dollars of pledges, hundreds of theatrical releases, and seven Oscar-nominated films (including Inocente, winner of the Best Documentary Short category). Blender Foundation is currently crowdfunding its first feature length film, Gooseberry.

***

The conceit of copyright and other “intellectual property” systems is that they can be calibrated to promote the progress of science and the useful arts. But the reality of these systems is corruption and rent seeking, not calibration. The cost is not just less creativity and innovation, but less freedom and equality.

It’s clear from real world examples that other systems can achieve the goal of promoting creativity, progress, and innovation. We must continue to push for both practice and policy that favors these systems, ultimately rendering “intellectual property” a baffling anachronism. In a good future, a policy-oriented celebration of creativity and innovaion would be called World Intellectual Freedom Day.

wdiff -n eff-wipd.html eff-wipd-edit.html |colordiff |aha -w > eff-wipd-diff.html
[-<p>Today, April 26,-]{+<p>April 26+} is the day marked each year since 2000 [-as "Intellectual Property Day"-] by the <a href="https://www.eff.org/issues/wipo">World Intellectual Property Organization [-(WIPO)</a>. There are many areas where EFF has not historically agreed with WIPO,-] {+(WIPO)</a> as "World Intellectual Property Day", in+} which [-has traditionally pushed-] {+WIPO tries to associate its <a href="https://www.eff.org/deeplinks/2013/03/ustr-secret-copyright-agreements-worldwide">worldwide pushes+} for more [-restrictive agreements and served as a venue for <a href="https://www.eff.org/deeplinks/2013/03/ustr-secret-copyright-agreements-worldwide">domestic policy laundering</a>, but we agree that celebrating-] {+enclosure</a> with creativity.</p>+}
{+<p>Celebrating+} creativity is a good [-thing.</p>-]
[-<p>As the saying goes, though:-] {+thing, but+} when you're a hammer, everything looks like a nail. For the World Intellectual Property Organization, it may seem like creativity and <a href="https://www.eff.org/issues/intellectual-property/the-term">"intellectual property"</a> are inextricably linked. That's not the case. In the spirit of adding to the conversation, [-we'd like to-] {+let's+} honor all the creativity and industry that is happening <i>without</i> a dependence on a system intellectual property.</p>
<p>There's an important reason to encourage {+and promote+} creativity outside the bounds of increasingly restrictive [-laws, too. As Ninth Circuit Chief Justice Alex Kozinski eloquently explained in <a href="http://notabug.com/kozinski/whitedissent">a powerful dissent</a> some 20 years ago, pushing only for more IP restrictions tips a delicate balance against creativity:</p>-]
[-<blockquote><p>Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on-] {+laws: to+} the [-works-] {+extent such creativity succeeds, it helps us re-imagine the range+} of [-those who came before. Overprotection stifles the very creative forces it's supposed-] {+desirable policy <i>and</i> reduces the resources available+} to [-nurture.</p></blockquote>-]
[-<p>It's-] {+enclosure industries to lobby for protectionism -- in sum shifting what is politically possible. It's+} incumbent on all of us who want to encourage creativity to continue to explore {+and utilize+} structures that reward creators without also restricting speech.</p>
<h3>Comedy, Fashion, Cooking, Magic, and More</h3>
<p>In the areas [-known as copyright's "negative spaces,"-] {+in which intellectual freedom is not typically infringed,+} there is tremendous innovation and consistent creativity outside of the intellectual property system. Chefs create new dishes, designers imagine new styles, comedians write new jokes, all without a legal enforcement mechanism to restrict others from learning and building on them.</p>
<p>There may be informal systems that discourage copying―the comedy community, to take one example, <a href="http://www.slate.com/articles/arts/culturebox/features/2014/the_humor_code/joke_theft_can_a_comedian_sue_if_someone_steals_his_material.html">will call out people</a> who are deemed to be ripping off material―but for the most part these work without expensive litigation, threats of ruinous fines, and the creation of systems [-that can be abused to silence lawful non-infringing speech.</p>-] {+of surveillance and censorship.</p>+}
<h3>Contributing to a Creative Commons</h3>
<p>The free software movement [-may have popularized-] {+pioneered+} the [-idea-] {+practice+} of creating digital media that can legally and freely be shared and expanded, [-but the free culture movement has pushed the-] {+building a commons. The digital commons+} idea [-further-] {+is being pushed in more areas+} than ever [-before.-] {+before, including culture, education, government, hardware design, and research.+} There are some projects we're all familiar [-with―Wikipedia-] {+with -- Wikipedia+} is perhaps the most prominent, creating an expansive and continuously updated encyclopedia that is freely accessible under permissive terms to the entire world.</p>
<p>Focusing on this year's World IP Day theme of movies, there have been some impressive contributions the commons over the years. Nina Paley's feature animation <i><a href="http://www.sitasingstheblues.com/">Sita Sings The Blues</a></i>, which she released into the public domain, has spread widely, inspired more work, and earned her money. The <a href="http://www.techdirt.com/articles/20101002/20174711259/open-source-animated-movie-shows-what-can-be-done-today.shtml">short films from the Blender Foundation</a> have demonstrated cutting-edge computer graphics made with free software and, though they've sometimes been on <a href="http://www.techdirt.com/articles/20140406/07212626819/sony-youtube-take-down-sintel-blenders-open-source-creative-commons-crowdfunded-masterpiece.shtml">the receiving end of bogus copyright takedowns</a>, have been watched many millions of times.</p>
<h3>Kickstarting and Threshold Pledges</h3>
<p>Finally, crowdfunding platforms like Kickstarter and Indie-Go-Go have made a major splash in the last few years as another fundraising model that can complement, or even replace, [-traditional-] copyright exclusivity. These platforms build on theoretical framework laid out by scholars like John Kelsey and [-EFF board member-] Bruce Schneier in <a href="https://www.schneier.com/paper-street-performer.html">the influential "Street Performer Protocol" paper</a>, which set out to devise an alternative funding system for public [-works.</p>-] {+domain works. But most crowdfunded works are not in the commons, indicating an need for better <a href=http://gondwanaland.com/mlog/2013/08/10/street-patrons-missing-coordination-protocol/">coordination of street patrons</a>.</p>+}
<p>Looking at movies in particular: Kickstarter alone has <a href="https://www.kickstarter.com/blog/a-big-day-for-film">enabled hundreds of millions of dollars of pledges</a>, hundreds of theatrical releases, and seven Oscar-nominated films (including <i>Inocente</i>, winner of the Best Documentary Short category). [-Along with other-] {+Blender Foundation is currently+} crowdfunding [-sites, it has allowed the development of niche projects that might never have been possible under the traditional copyright system.&nbsp;</p>-] {+its first feature length film, <em><a href="http://gooseberry.blender.org/">Gooseberry</a></em>.</p>+}
<h3>***</h3>
[-<p>As the Constitution tells us,-]
{+<p>The conceit of+} copyright and other "intellectual property" systems [-can, when-] {+is that they can be+} calibrated [-correctly,-] {+to+} promote the progress of science and the useful arts. [-We continue to work pushing for a balanced law that would better achieve that end.</p>-]
[-<p>But it's also-] {+But the reality of these systems is corruption and rent seeking, not calibration. The cost is not just less creativity and innovation, but less freedom and <a href="http://gondwanaland.com/mlog/2014/01/30/tech-wealth-ip/">equality</a>.</p>+}
{+<p>It's+} clear from [-these-] real world examples that other systems can achieve [-that-] {+the+} goal [-as well. Promoting-] {+of promoting+} creativity, progress, and [-innovation is an incredibly valuable mission―it's good to know that it doesn't have-] {+innovation. We must continue+} to [-come through systems-] {+push for both practice and <a href="http://gondwanaland.com/mlog/2014/02/09/freedoms-commons/#regulators">policy+} that [-can-] {+favors these systems</a>, ultimately rendering "intellectual property" a baffling anachronism. In a good future, a policy-oriented celebration of creativity and innovaion would+} be [-abused to stifle valuable speech.</p>-] {+called World Intellectual Freedom Day.</p>+}

Posted in Commons, Creative Commons, Free Speech, Inequality Promotion, Intellectual Protectionism, Open Access, Open Hardware, Open Source, Patents, Peeves, Politics, Public Domain, Public Goods, Wikipedia | 1 Comment »

Patent reform, parts deficient in commons

Friday, April 18th, 2014

A Five Part Plan for Patent Reform (pdf) by Charles Duan, Director of Patent Reform at Public Knowledge, is simultaneously good and deficient:

  1. Notes theoretical and observed problems with monopoly incentive story underlying patents, mixed empirical results, regulatory cause of strong positive results in one field (pharma), layers of abuse surrounding core in implementation, the existence of many non-monopoly incentives for innovation, conflicts between these and patents … and yet fundamentally accepts the noble origin role of monopoly incentives in protecting apple pie and correlation with some inventions — nevermind causality or counterfactual. Compare text “certainly many inventions through history, such as the light bulb, the airplane, and the photocopier, were invented by small inventors and protected by patents” and its citation (footnote 7, The Myth of the Sole Inventor)!
  2. Discusses commons (Open Innovation Communities) as evidence, and substantially better than typical writing doing so, as at least a concept of pro-commons reform is included: “One task for patent reform, then, is to consider adjustments to the patent system that better accommodate these alternate incentives for innovation. The goal of such adjustments is to better encourage these inventors incentivized by factors other than patents, and to ensure that patents do not stand in the way of those inventors.” As usual, commons regimes carved out of property defaults are mentioned (specifically GPL and DPL), but not as prototypes for default policy. Also, “it is important for these decisionmakers to reach out to inventing communities, even those that do not file for patents, and it is important for those communities to reach out to the Patent Office and other decisionmakers.” I think this also holds for “IP scholars” (which of course ought re-imagine themselves as commons scholars) and OIC participants/commoners — let’s talk about what concrete reforms would favor actually existing commons, and put those on the scholarly and policy agendas. A recent idea directly concerning patents that ought start down that long road, but many pertinent reforms may be indirect, favoring commons in other ways so as to change the knowledge economy which eventually determines what interests dominate.
  3. Innovation is assumed the top goal of policy, tempered only by conflict among incentives to innovate, and need to rein in unscrupulous behavior. No mention of freedom and almost none of equality (Joseph Stiglitz is quoted: “The alternative of awarding prizes would be more efficient and more equitable”), let alone as goals which trump innovation.

These three good/deficient pairs are endemic in intellectual property-focused discourse, e.g., see my recent reviews of IP in a World Without Scarcity and Copyright and Inequality — one of the reasons the latter is so great is that places equality firmly on the agenda.

A few other notes on A Five Part Plan for Patent Reform:

  • It’s not a plan, rather an exploration of “five key areas in which the patent system is ripe for reform.” The word plan doesn’t even appear in the text. Well worth reading, but don’t expect to find an actionable plan with five parts.
  • Notes that patent trolls existed in the 1800s (individual farmers were bullied to pay royalties for farm implements covered by patents), which is good (too often current discourse assumes intellectual property worked just fine until recently, with conflict caused by changing technology rather than by power and rent seeking), but then: “Analogously, as discussed above, farm technology was widely used in the nineteenth century, and patents on farm technology were hotly contested. Patents on those farm tools were effectively abolished. But that fix to the patent system did not prevent the software patent problems faced today―it ultimately was a Band-Aid rather than a cure. The same would be true of eliminating software patents. The fundamental issue is that the technologies of tomorrow are unknown, so targeting patent reform to one specific field of technology means that the same problems will only arise again in a different technological sector.” Sure, only abolishing all patents is sufficient, but this analogy seriously undersells the benefit of abolishing software patents: agriculture then was in relative decline of importance in the face of industrialization. Now, software is ascendant, and any technology of tomorrow that matters will involve software.
  • Focuses on FRAND (fair, reasonable and non-discriminatory) licensing for standards. But RF (royalty free) licensing is required for any standard in which commons-based projects are first class participants (e.g., free/open source software and codec patents). No doubt unscrupulous behavior around FRAND and standards is a problem, but the solution is RF for standards.
  • From the Public Knowledge site, reading the paper requires first supplying an email address to a third party (gumroad). Annoying, but on par with PK’s newsletter practices (one of the many favoring tracking users at cost of usefulness to users). Better, the paper is released under CC-BY-SA, so I uploaded a copy to the Internet Archive. Best, Duan has published the paper’s LaTeX source.

Posted in Commons, Creative Commons, Economics, Inequality Promotion, Intellectual Protectionism, Open Source, Patents, Peeves, Politics | 3 Comments »

Protect commons from patents

Friday, April 11th, 2014

Rob Landley has a good idea: software patents shouldn’t apply to public domain software. This is exactly the kind of commons-favoring reform that ought be topmost on the agenda of anyone who cares about a good [digital] future. It will take years for many such reforms to be feasible. This only means it is urgent for commoners of all free/open stripes to begin thinking of themselves collectively as a politically potent self-interested group, not as merely surviving through private opt-outs from increasingly bad regulation and reaction against apparent existential threats.

I’m a huge fan of the public domain and think that among private opt-outs, public domain instruments ought be used much more than they are. Landley makes an interesting case (historical and otherwise, read his full post) for limiting protection from software patents to public domain software rather than any free/open source software, but I disagree — in this reform step, it makes sense to protect developers and users of any free/open source software from patents with regard to that software.

Up to the last paragraph the rest of this post is dedicated to this disagreement (and in another sense of dedicated, to the public domain, as is everything by me), but don’t let that distract from my overall appreciation of Landley’s post — read the whole thing (his blog is also interesting overall, stylistically like early blogs, and it does have posts back to 2002, though I’ve only been following it approximately since the first link in previous paragraph: see link text “disagree”, appropriately enough).

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Landley writes:

The reason to say “public domain” instead of “open source” is partly that open source is difficult to legally define
…
Public domain hasn’t got that problem. It avoids the whole can of worms of what is and isn’t: the code is out there with zero restrictions.

1) Existing law and regulation deals with “open source”, e.g. the U.S. Department of Defense and the Italian government. This is no significant obstacle. On the other hand, “public domain” has another problem: FUD about whether it is “legally possible” to put new works in the public domain and whether various public domain instruments “work”. This FUD needs to be combated, but I think it’ll be more effective to do so in part by getting public domain instruments recognized as free/open instruments by various gatekeepers than by dumping FUD on the same.

The price for freedom from patents should be zero restrictions: if the authors have no control over what people can do with it, why should uninvolved third parties have a say? Ideally the smooth, frictionless legal surface of the public domain should go both ways.

That’s the constitutional argument: freely redistributable, infinitely replicable code serves the stated constitutional purpose of copyrights and patents better than patents do. Releasing your copyrights into the public domain should also prevent patent claims on that code.

2) That’s a fine assertion, but it’s really outside the free/open source (and nearby) consensus on software patents: they should be abolished, i.e., one should not have to give up anything to be protected from them. Changing the focus to strategically demanding freedom from patents for free/open source software (while still agreeing they ought be abolished for all) would mark a huge shift in the imagination of the movement(s). Limiting the scope of protection to only public domain software: how is it imaginable to take that idea beyond an interesting blog post? I wish a huge constituency for public domain software existed, but as of now it is a rounding error.

3) Zero restrictions is a fine ideal (indeed, copyright and patent should be abolished entirely), but whether viewed as a “price” or grant of permissions, releasing work under any free/open license makes very significant grants. Attendant conditions may be annoying, self-defeating, necessary, or something else depending on one’s perspective (I try to view them charitably as prototypes for more effective regulation not based on copyright holder whim, but also think it is worthwhile to try to improve them, and, as above, encourage more use of public domain instruments) but obviously these licenses are adequate to facilitate vibrant commons projects (essentially all well known free/open source software, except for SQLite and djbware, which use public domain dedications), and it is the actual commons that needs to be favored, not some idealized zero friction symmetry between patent and copyright.

The historical reason to say “public domain” instead of “open source license” is possible legal precedent: back when software was unpatentable, it was also uncopyrightable. An awful lot of public domain software used to exist, and when people added copyrights to it, they opened it to patents as well. Software that _isn’t_ copyrighted, historically, also wasn’t patented. If somebody tries to enforce patents against public domain software, we can make a clear distinction and ask a judge to opine.

4) I’m not a lawyer, but I’d bet heavily against us winning. Happy to be wrong.

5) I’ve already mentioned size of the constituency for (2) and quantity of (3) free/open source software relative to only public domain software, but these bear repeating in the form of size of benefit. Protecting all free/open source software from patents would immediately benefit millions of free/open source software developers and users, and solve big problems for free/open source software and standards. There would be essentially no immediate benefit from only protecting public domain software from patents. Long term it would encourage more public domain software. To make that extremely lopsided trade off one has to believe that free/open source licenses are really, really awful relative to the public domain. I can understand that belief emotionally, but don’t think what evidence we have about success of various projects bears the belief out. Rather, the specific conditions (including none) just aren’t all that important so long as a minimum of permissions are granted. Exclusive public domain advocates may hate licenses, but licenses just don’t matter that much!

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As the title of this post implies, free/open source software (inclusive of public domain software) is not the only commons threatened by patents that ought be favored through blanket protection from patents. Defining some of these (e.g., for seeds, 3D printing, general purpose robotics, and synthetic biology?) will be harder, in part because there may be no “well understood term in the trade” such as “open source”, but this is a much smaller hurdle (indeed, a sub-sub-task of) than organizing the relevant constituencies and making the case to the public and policymakers that favoring commons is indeed good policy.

Posted in Commons, Economics, Intellectual Protectionism, Open Source, Patents, Politics, Public Domain | 3 Comments »

Innovation Policy in a World With Less Scarcity

Friday, March 28th, 2014

Mark Lemley‘s new paper IP in a World Without Scarcity provides good overviews of the case “that on the Internet, we increasingly get creativity in spite of, rather than because of, IP law” — the exclusivity incentive for creation story, if it were ever true, is drowning in non-exclusive creativity, and theories that distribution and revelation also require an exclusivity incentive also seem quaint given the Internet — and of 3D printing, general purpose robotics, and synthetic biology, which “share two essential characteristics with the Internet: they radically reduce the cost of production and distribution of things, and they separate the informational content of those things (the design) from their manufacture.” Thus, Lemley argues, economics and policy need increasingly to grapple with an end to scarcity, IP will be increasingly important, and we can draw lessons from the Internet about how this all will and should play out.

The paper is a quick read at 55 double-spaced pages. I recommend it to anyone interested in near future technology and policy. The paper’s final sentence:

Thinking about such questions has been the province of science fiction authors, but understanding what a post-scarcity economy will look like is the great task of economics for the next century.

Lemley cites two SF books very familiar to many readers: Down and Out in the Magic Kingdom by Cory Doctorow (my positive review) and The Diamond Age: Or, A Young Lady’s Illustrated Primer by Neal Stephenson, which just a few days ago I exploited in a private communication: “…the primer is an interactive learning notebook which adapts as the owner learns, informing a generation of geeks’ vision of education and development. Such tools are increasingly feasible. Will all humans have full access to, and ability to participate in the development of such tools? Only if they are developed in the commons, which will only happen with intentional action.” That’s probably a good segue into my disagreements with and additional idiosyncratic observations about IP in a World Without Scarcity.

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By IP, Lemley means intellectual property: mostly copyright, patent, trademark. That has been and will be increasingly a terrible frame for thinking about policy. It gives away the farmfuture to owners of the past, who, as Lemley notes “will fight the death of scarcity” as they have fought the Internet — with more criminalization, more lawsuits, more attempts to fundamentally alter technologies in order to protect their rents. This seems rather suboptimal given that we know the theory upon which IP rests is largely bunk. The alternative, assuming we still only wish to maximize innovation, is to make innovation policy the frame. This makes turning the enclosure dial up or down a sideshow, and pulls in non-enclosure incentives and a host of more indirect and probably much more important determinants of innovation, e.g., education and governance.

The paper provides a couple reasons for focusing on the enclosure version of IP (Lemley doesn’t need any reason; he’s an IP scholar, and though I wish such people would reconceptualize themselves as commons scholars, I have no expectation; in any case the “reasons” are my reading). First, the framing isn’t as harmful as I made it out to be, because IP owners’ fight against the Internet “didn’t work. Copyright infringement remains rampant” and against other democratizing technologies, “IP owners will (probably) lose that fight.” But winning isn’t binary, nor is the continued existence of rampant copyright infringement a good indicator.

Given that network effects are highly relevant for many kinds of knowledge products — a tool or experience is much more valuable if other people can be expected to know it — a significant level of piracy can be profit-maximizing for an IP rent collector. Better indicators might be the collapse of profits from IP rents (the movie industry continues to grow, and while the recorded music industry has declined from its peak, this is nothing like an icehouse collapse, and many other IP rent sectors continue to grow) and the displacement of IP rent collectors as the marketers the dominant knowledge products of the age by other entities better adapted to a world in which fighting against the Internet doesn’t work (the mass and high-status markets are dominated by IP rent collectors in nearly all fields, exceptions being encyclopedias and certain kinds of infrastructure software). These might be minor, highly debatable (maybe the music industry will soon recommence a full collapse, be joined by movies, both displaced by crowdfunding and crowdmarketing; I doubt it given the properties controlled by IP rent collectors and other entities’ unchanged desperation to cut unfavorable deals with them) quibbles, if the IP owners’ “losing” fight against the Internet hadn’t significantly damaged the Internet.

But the Internet has been damaged by the IP owners’ fight. Absent an academic characterization of how significant that damage is (which I would love to read), here are some of the ways:

  • Chilling effect on P2P research, result: more centralization;
  • Services police user content; expensive, barrier to entry, result: more centralization, near monopoly platforms;
  • Services cut rare and unfavorable deals with IP owners, result: same;
  • Innovative services fail to cut deals, or sustainable deals, with IP owners, result: less innovation, more Internet as TV;
  • Monopoly abets monopoly; creates opportunities for bundling monopolies, result: threat to net neutrality;
  • Copyright-based censorship provides cover for all kinds of political censorship, result: political censors have additional justification, doing what Hollywood does;
  • All of above centralization and monopoly makes dominant entities a target for compromise, result: mass surveillance and non-state cybercrime abetted;
  • Our imagination and expectation of what the Internet makes possible is diminished, result: DRM TV and radio and silos organized for spying are seen as the norm, information organized for public benefit such as Wikipedia, unusual; this flipping of democratic hopes for the Internet, a partial AOL scenario, is collateral damage from the IP owners’ war on the Internet.

Similar damage will be done to the potential of new technologies with Internet-like characteristics (in addition to those discussed in the paper, others add the Internet of Things, distributed energy generation, and educational technologies, e.g., Jeremy Rifkin in his new book The Zero Marginal Cost Society, which I plan to review soon) by incumbents. This makes Lemley’s policy recommendations seem overly tentative and timid:

[It] is hard to translate this skepticism into immediate policy prescriptions, both because the whole point is that the need for IP will be sensitive to individual industry characteristics and because the technologies I am discussing are still in their infancy [...] “we should resist the tendency to expand IP reflexively to meet every new technological challenge” [...] “IP owners should not be allowed to reach beyond suing infringers and seek to shut down or modify the technology itself” [...] “IP law needs to make it easier for creators to opt out of the IP regime.”

IP rent collectors will not hold off protecting their interests pending idealized analysis of more fully developed technologies. The damage they do will be built into another generation of technology and society, with IP scholars and activists left to worry that policy is contrary to evidence and to take rearguard actions to protect the level of openness they’ve become accustomed to, but fail to imagine what would have been possible had the stranglehold of IP rent collectors been broken. Just like the Internet today. I’ll come back to less timid and more proactive policy response in a bit.

Second reason for focus on the enclosure version of IP, the usual — big budget movies (and regulated pharma, mentioned earlier in the paper):

There is still a role for IP on the Internet. There are some works that are so costly to create even in the digital world that they are unlikely to be made without effective IP protection. Big-budget movies and video games cost hundreds of millions of dollars to make. No amount of creative fire will drive someone who doesn’t have hundreds of millions of dollars to make Peter Jackson’s Lord of the Rings trilogy. They need corporate backing, and the corporate backers need a revenue stream. But in the Internet era those works are increasingly the the exception, not the rule.

My usual response — we should allow enclosure of our freedom, equality, and the democratic potential of the Internet in order to ensure an ongoing supply of spectacle provided in the same way it has for decades? Spectacle over freedom, really? Of course the “reason” is far more pessimal than that, as the cost of producing and distributing spectacle is going down fast, as is the cost of coordinating distributed patrons who want product, not rent collection. Further, because culture is also so dominated by network effects, we’ll all love whatever spectacle is produced, whether it took 15 or 500 months of work per minute of spectacle. It’s not as insane to contemplate threatening liberal values in order to get new drugs as it is to get new movies — but then considering non-enclosure mechanisms for developing and evaluating new drugs, and the issues of access and equality are more pressing…

More Lemley:

IP is essentially a form of government regulation. The government restricts entry into the market, or alternatively controls the price at which that entry can occur, in order to serve valuable social ends. But regulation is not a moral entitlement or something that we must take for granted. In the past, government regulated all sorts of industries ? railroads, trucking, electric power, gas, telephones ? because it could not see given the economics of those industries how a free market could produce socially optimal results. But in a surprising number of cases, when we deregulated those industries we found that the market could indeed find a way to supply goods we thought would be provided only with government rule-making. IP is no different in this respect than any other form of regulation. Regulation as a whole shouldn’t disappear, but regulation of particular industries often turns out to be a reflexive response to a failure of imagination, something we do because we have done it for so long that we cannot imagine how a market in that industry could function without it.

This is certainly superior to the rights/owner/property characterization inherent in IP — it recasts “owners” as beneficiaries of regulation — and I think implicitly makes the case for switching one’s frame from intellectual property to innovation policy. That leads us to what the goal of “innovation policy” regulation ought be, and sufficiently proactive policies to achieve that. Should the goal be to maximize “innovation”, “creativity”, the “progress of science and useful arts”, or the like? It would be a huge improvement to sideline enclosure as the primary mechanism and retain the same top objective. But even that improvement would be short sighted, given how systematically innovation policy regulation has and will increasingly shape society. A success of imagination would be to make freedom and equality the top objectives of and constraints on innovation policy, and only then maximize innovation. The innovations generated by a free and equal society are the ones I want. Others are to be gawked at with dismay and guilt.

On proactive policies required, in brief the are pro-commons policies, and I return to Benkler:

Regulators concerned with fostering innovation may better direct their efforts toward providing the institutional tools that would help thousands of people to collaborate without appropriating their joint product, making the information they produce freely available rather than spending their efforts to increase the scope and sophistication of the mechanisms for private appropriation of this public good as they now do.

That we cannot fully understand a phenomenon does not mean that it does not exist. That a seemingly growing phenomenon refuses to fit our longstanding perceptions of how people behave and how economic growth occurs counsels closer attention, not studied indifference and ignorance. Commons-based peer production presents a fascinating phenomenon that could allow us to tap substantially underutilized reserves of human creative effort. It is of central importance that we not squelch peer production, but that we create the institutional conditions needed for it to flourish.

Which implies that commons scholarship ought displace intellectual property scholarship (except as a historical investigation of commons malgovernance).

I realize that I haven’t provided any specific pro-commons policy recommendations in this post, nevermind any that are especially pertinent in a world with less scarcity. I’m deeply skeptical that lower, different costs substantially change innovation policy or knowledge commons arguments — the same ones have recurred since at least the 1800s — and am extremely doubtful that the usual assumption that digital networks fundamentally change desirable policy (or here, that further technologies with digital network like characterizations further change desirable policy) is true or non-harmful — these assumptions give away (legitimize) the past to those who now use it to control the future. Some short term and narrow but valuable pro-commons policy suggestions arising from the Wikimedia movement; the free software movement offers other suggestions, if we take some of its practices as prototypes for regulation enforced by mechanisms other than copyright holder whim, more powerful and better aligned with its claims of software freedom as a human right.

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A few final quotes from Lemley’s IP in a World Without Scarcity, first two from footnotes:

The challenge posed to copyright by collective production sites like Wikipedia is not just one of the need for incentives. Collective production challenges the whole concept of authorship.

Indeed, and as I keep repeating effective product competition from the commons (such as Wikipedia) re-imagines the range of desirable policy and reduces the resources available to enclosure industries to lobby for protectionism — in sum shifting what is politically possible.

It is possible that creators create in hopes of being one of the few superstars whose work is actually rewarded by copyright law. It is well known that people systematically overvalue the prospect of a large but unlikely reward; that’s why they buy lottery tickets. Some scholars have suggested that the same effect may be at work in IP. But if so, the incentive on which we rely is, as Kretschmer puts it, “based on a systematic cognitive mistake.” In effect, we are coaxing works out of these creators by lying to them about their chances of getting paid.

This has long struck me as being the case. The question is then (in addition to considerations above), do we really want a culture dominated by fools and sell-outs?

A world without scarcity requires a major rethinking of economics, much as the decline of the agrarian economy did in the 19th century. How will our economy function in a world in which most of the things we produce are cheap or free? We have lived with scarcity for so long that it is hard even to begin to think about the transition to a post-scarcity economy. IP has allowed us to cling to scarcity as an organizing principle in a world that no longer demands it. But it will no more prevent the transition than agricultural price supports kept us all farmers. We need a post-scarcity economics, one that accepts rather than resists the new opportunities technology will offer us. Developing that economics is the great task of the 21st century.

But we should aim for much better than the travesty of developed country agricultural policy (even before considering its baneful intersection with IP) as the legacy of this transition! But the consequences of continued capture of innovation policy have the potential to be far worse. Even if few are employed in information industries, there is no transition on the way to displace arranging information as the dominant mode of the economy (however measured; previous modes being hunting/gathering, agriculture, and industry); if the mode is largely controlled by rent collectors, the result could be a very unfree and unequal society — perhaps on the order of pre-industrial agricultural societies.

Posted in Books, Commons, Economics, Inequality Promotion, Intellectual Protectionism, P2P, Patents, Peeves, Politics, Wikipedia | 7 Comments »

Annual thematic doubt

Friday, January 10th, 2014

As promised, my first annual thematic doubt post, expressing doubts I have about themes I blogged about during 2013.

Intellectual Freedom

If this blog were to have a main purpose other than serving as a despository for my tangents, it’d be protecting and promoting intellectual freedom, in particular through the mechanisms of free/open/knowledge commons movements, and in reframing information and innovation policy with freedom and equality outcomes as top. Some representative posts: Economics and the Commons Conference [knowledge stream] report, Flow ∨ incentive 2013 anthology winner, z3R01P. I’m also fond of pointing out where these issues surface in unusual places and surfacing them where they are latent.

I’m fairly convinced on this theme: regimes infringing on intellectual freedom are individual and collective mind-rot, and “merely” accentuate the tendencies toward inequality and control of whatever systems they are embedded in. Mitigating, militating against, outcompeting, and abolishing such regimes are trivially for the good, low risk, and non-revolutionary. But sure, I have doubts:

  • Though I see their accentuation of inequality and control as increasingly important, and high leverage for determining future outcomes, copyright and patent could instead be froth. The cause of intellectual freedom might be better helped by fighting for traditional free speech issues, for tolerance, against mass incarceration, against the drug war, against war, against corruption, for whatever one’s favored economic system is…
  • The voluntarily constructed commons that I emphasize (e.g., free software, open access) could be a trap: everything seems to grow fast as population (and faster, internet population) grows, but this could cloud these commons being systematically outcompeted. Rather than being undersold, product competition from the commons will never outgrow their dwarfish forms, will never shift nor take the commanding heights (e.g., premium video, pharma) and hence are a burden to both policy and beating-of-the-bounds competition. Plus, copyright and the like are mind-rot: generations of commons activists minds have been rotted and co-opted by learning to work within protectionist regimes rather than fighting and ignoring them.
  • An intellectual freedom infringing regime which produced faster technical innovation than an intellectual freedom respecting regime could render the latter irrelevant, like industrial societies rendered agricultural societies irrelevant, and agricultural societies rendered hunter-gatherer societies irrelevant, whatever the effects of those transitions on freedom and other values were. I don’t believe the current regime is anywhere close to being such a thing, nor are the usual “IP maximalism” reforms taking it in that direction. But it is possible that innovation policy is all that matters. Neither freedom and equality nor the rents of incumbents matter, except as obstacles and diversions from discovering and implementing innovation policy optimized to produce the most technical innovation.

I’m not, but can easily imagine being won over by these doubts. Each merits engagement, which could result in much stronger arguments for intellectual freedom, especially knowledge commons.

Critical Cheering

Unplanned, unnoticed by me until late in the year, my most pervasive subtheme was criticism-embedded-in-praise of free/open/commons entities and actions. Representative posts, title replaced with main target: Creative Commons, crowdfunding, Defensive Patent License, Document Freedom Day, DRM-in-HTML5 outrage, EFF, federated social web, Internet Archive, Open Knowledge Foundation, SOPA/ACTA online protests, surveillance outrage, and the Wikimedia movement.

This is an old theme: examples from 2004, 2005, 2006, 2007, 2008, 2011, and 2012. 2009 and 2010 are absent, but the reason for my light blogging here bears some relation to the theme: those are the years I was, in theory, most intensely trying to “walk my talk” at Creative Commons (and mostly failed, side-tracked by trying to get the organization to follow much more basic best practices, and by vast amounts of silliness).

Doubts about the cheering part are implied in the previous section. I’ll focus on the criticism here, but cheering is the larger component, and real: of entities criticized in the above links, in 2013 I donated money to at least EFF, FSF, and Internet Archive, and uncritically promoted all of them at various points. The criticism part amounts to:

  • Gains could be had from better coordination among entities and across domains, ranging from collaboration toward a short term goal (e.g., free format adoption) to diffuse mutual reinforcement that comes from shared knowledge, appreciation, and adoption of free/open/commons tools and materials across domains (e.g., open education people use open source software as inherent part of their practice of openness, and vice versa).
  • The commons are politically potent, in at least two ways: minimally, as existence proof for creativity and innovation in an intellectual freedom respecting regime (carved out); and vastly underappreciated, as destroyer of rents dependent on the intellectual freedom infringing regime, and of resources available for defending those rents and the regime. Commons are not merely to be protected from further bad policy, but are actors in creating a good policy environment, and should be promoted at every turn.

To be clear, my criticism is not usually a call for more “radical” or “extreme” steps or messages, rather more fulsome and coordinated ones. Admittedly, sometimes it may be hard to tell the difference — and this leads to my doubts:

  • Given that coordination is hard, gaining knowledge is expensive, and optimization path dependent, the entities and movements I criticize may not have room to improve, at least not in the direction I want them to improve in. The cost of making “more fulsome and coordinated” true might be greater than mutual reinforcement and other gains.
  • See the second doubt in the previous section — competition from the commons might be futile. Rather than promoting them at every turn, they should sometimes be held up as victims of bad policy, to be protected, and sometimes hidden from policy discourse.

The first doubt is surely merited, at least for many entities on many issues. For any criticism I have in this space, it makes sense to give the criticized the benefit of the doubt; they know their constraints pretty well, while I’m just making abstract speculations. Still, I think it’s worthwhile to call for more fulsome and coordinated strategy in the interstices of these movements, e.g., conversation and even this blog, in the hope of long-term learning, played out over years in existing entities and movements, and new ones. I will try henceforth to do so more often in a “big picture” way, or through example, and less often through criticism of specific choices made by specific entities — in retrospect the stream of the latter on this blog over the last year has been tedious.

International Apartheid

For example: Abolish Foreignness, Do we have any scrap of evidence that [the Chinese Exclusion Act] made us better off?, and Opposing “illegal” immigration is xenophobic, or more bluntly, advocating for apartheid “because it’s the law”. I hinted at a subtheme about the role of cities, to be filled out later.

The system is grossly unjust and ought be abolished, about that I have no doubt. Existing institutions and arrangements must adapt. But, two doubts about my approach:

  • Too little expression of empathy with those who assume the goodness of current policy. Fear of change, competition, “other” are all deep. Too little about how current unjust system can be unwound in a way the mitigates any reality behind these fears. Too little about how benefits attributed to current unjust system can be maintained under a freedom respecting regime. (This doubt also applies to the intellectual freedom theme.)
  • Figuring out development might be more feasible, and certainly would have more impact on human welfare, individual autonomy, than smashing the international apartheid system. Local improvements to education, business, governance, are what all ought focus on — though development economics has a dismal record, it at least has the right target. Migration is a sideshow.

As with the intellectual freedom theme, these doubts merit engagement, and such will strengthen the case for freedom. But even moreso than in the case of intellectual freedom infringing regimes, the unconscionable and murderous injustice of the international apartheid regime must be condemned from the rooftops. It is sickening and unproductive to allow discourse on this topic to proceed as if the regime is anything but an abomination, however unfeasible its destruction may seem in the short term.

Politics

Although much of what I write here can be deemed political, one political theme not subsumed by others is inadequate self-regulation of the government “market”, e.g., What to do about democratically elected terrorist regimes, Suppose they gave a war on terror and a few exposed it as terror, and Why does the U.S. federal government permit negative sum competition among U.S. states and localities?

The main problem with this theme is omission rather than doubt — no solutions proposed. Had I done so, I’d have plenty to doubt.

Refutation

I fell behind, doing refuting only posts from first and second quarters of 2005. My doubt about this enjoyable exercise is that it is too contrived. Many of the refutations are flippant and don’t reflect any real doubts or knowledge gained in the last 8 years. That doubt is what led me to the exercise of this post. How did I do?

Posted in Apartheid, Blogs, Commons, Creative Commons, Economics, Free Speech, Inequality Promotion, Intellectual Protectionism, Open Source, Patents, Peeves, Politics, Refutation, Wikipedia | 3 Comments »

Clubbing out of the vicious circle of bad policy (patents)

Thursday, January 2nd, 2014

Glyn Moody in Defensive Patent Licence: Nice Idea; Not Much Use:

The rest of Linksvayer’s thoughtful post explores these ideas and their background, and in particular looks at how they fit with other aspects of free software.

My fascinating post (thanks).

It’s well worth reading, even if the DPL itself is likely to have relatively little impact. That’s because it only applies to those who join the DPL club, which creates a typical vicious circle: few entities in the club to start with mean that few patents are made available on an royalty-free basis, and so there’s little incentive for more entities to join.

The vicious cycle can be overcome. Joining the club is very low barrier: gratis, and an entity doesn’t even have to hold any patents. Royalty-free patents from club members is only part of the reason for joining. Another is expression — taking advantage of the patent skepticism of many people, and exploiting for ethical branding and recruitment. These patent pool and expressive incentives could be mutually re-enforcing: the more entities join, the larger the pool, and the stronger the expectation that non-evil entities join.

Whether the vicious cycle will be overcome comes down to sales. The DPL people have put in place a lot of groundwork that will help — seemingly a large amount of work by credible people into making the DPL a robust legal instrument, a credible group of people as advisors (and presumably an impressive board when it reaches that stage), presumably some amount of funding. This combination of gravitas and resources would make it possible for a tireless campaigner (the pre-conditions do remind me of Creative Commons, whose tireless campaigner was Lawrence Lessig) or sales team befitting the target market to succeed in getting lots of entities to join the club.

One indicator after the DPL’s public launch next month will be whether the next columns and stories by journalists continue to focus on the barrier of lack of network effects, or on celebrating early joiners and urging other entities to follow as an urgent matter of public policy or industry best practice. This will be an indicator in large part because the DPL people’s efforts right now can shape these stories.

Still, it’s nice to see people thinking innovatively in this space as we work towards the ultimate goal of full abolition of software patents everywhere.

Indeed, though the DPL applies to all patents, and all patents everywhere should be fully abolished, as I’m pretty sure Moody agrees (but probably not the DPL people; that’s OK, they made a useful tool).

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You can attend the DPL launch conference in Berkeley: February 28November 7, 2014, gratis registration. Your organization should join the club, now!

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Video of the DPL birthday is up on the Internet Archive.

Posted in Creative Commons, Economics, Intellectual Protectionism, Open Source, Patents | 1 Comment »

[Semi]Commons Coordinations & Copyright Choices 4.0

Monday, December 9th, 2013

CC0 is superior to any of the Creative Commons (CC) 4.0 licenses, because CC0 represents a superior policy (public domain). But if you’re unable or unwilling to upgrade to CC0, the CC 4.0 licenses are a great improvement over the 3.0 licenses. The people who did the work, led by Diane Peters (who also led CC0), many CC affiliates (several of whom were also crucial in making CC0 a success), and Sarah Pearson and Kat Walsh, deserve much praise. Bravo!

Below read my idiosyncratic take on issues addressed and not addressed in the 4.0 licenses. If that sounds insufferable, but you want to know about details of the 4.0 licenses, skip to the excellent version 4 and license versions pages on the CC wiki. I don’t bother linking to sections of those pages pertinent to issues below, but if you want detailed background beyond my idiosyncratic take on each issue, it can be found there.

Any criticism I have of the 4.0 licenses concerns policy choices and is not a criticism of the work done or people involved, other than myself. I fully understand that the feasible choices were and are highly constrained by previous choices and conditions, including previous versions of the CC licenses, CC’s organizational history, users of CC licenses, and the overall states of knowledge commons and info regulation and CC’s various positions within these. I always want CC and other “open” organizations to take as pro-commons of a stance as possible, and generally judge what is possible to be further than that of the conventional wisdom of people who pay any attention to this scene. Sometimes I advocated for more substantial policy changes in the 4.0 licenses, though just as often I deemed such advocacy futile. At this point I should explain that I worked for CC until just after the 4.0 licenses process started, and have consulted a bit on 4.0 licenses issues since then as a “fellow”. Not many people were in a better position to influence the 4.0 licenses, so any criticisms I have are due to my failure to convince, or perhaps incorrect decision to not try in some cases. As I’ve always noted on this blog, I don’t represent any organization here.

Desiderata

Pro-commons? As opposed to what? The title of the CC blog post announcing the formal beginning of work on the new licenses:

Copyright Experts Discuss CC License Version 4.0 at the Global Summit

My personal blog post:

Commons experts to develop version 4.0 of the CC licenses

The expertise that CC and similar organizations ought to bring to the world is commons coordination. There are many copyright experts in the world, and understanding public copyright licenses, and drafting more, are no great intellectual challenges. The copyright expertise needed to do so ought be purely instrumental, serving the purpose of commons coordination. Or so I think.

Throughout CC’s existence, it has presented itself, and been perceived as, to varying extents, an organization which provides tools for copyright holders to exercise their copyrights, and an organization which provides tools for building a commons. (What it does beyond providing tools adds another dimension, not unrelated to “copyright choice” vs. “commons coordination”; there’s some discussion of these issues in a video included in my personal post above.)

I won’t explain in this post, but I think the trend through most of CC’s history has been very slow movement in the “commons coordination” direction, and the explicit objectives of the 4.0 versioning process fit that crawl.

“Commons coordination” does not directly imply the usual free/open vs. proprietary/closed dichotomy. I think it does mostly fall out that way, in small part due to “license interoperability” practicalities, but probably mostly because I think the ideal universal copyregulation policy corresponds to the non-discriminatory commons that “free/open” terms and communities carve out on a small scale, including the pro-sharing policy that copyleft prototypes, and excluding any role for knowledge enclosure, monopoly, property, etc. But it is certainly possible, indeed usual, to advocate for a mixed regime (I enjoy the relatively new term “semicommons”, but if you wish to see it everywhere, try every non-demagogic call for “balance”), in which case [semi]commons tools reserving substantial exclusivity (e.g., “commercial use”) make perfect sense for [semi]commons coordination.

Continuing to ignore the usual [non-]open dichotomy, I think there still are a number of broad criteria for would-be stewards of any new commons coordinating license (and make no mistake, a new version of a license is a new license; CC introduced 6 new licenses with 4.0) to consider carefully, and which inform my commentary below:

  • Differentiation: does the new license implement some policy not currently available in existing licenses, or at least offer a great improvement in implementation (not to provide excuses for new licenses, but the legal text is just one part of implementation; also consider branding/positioning, understandability, and stewardship) of policy already available?
  • Permissions: does the new license grant all permissions needed to realize its policy objective?
  • Regulation: how does the license’s policy objective model regulation that ought be adopted at a wider scale, e.g., how does it align with usual “user rights” and “copyright reform” proposals?
  • Interoperability: is the new license maximally compatible with existing licenses, given the constraints of its policy objectives, and indeed, to the expense of its immediate policy objectives, given that incompatibility, non-interoperability, and proliferation must fragment and diminish the value of commons?
  • Cross-domain impact: how does the license impact license interoperability and knowledge sharing across fields/domains/communities (e.g., software, data, hardware, “content”, research, government, education, culture…)? Does it further silo existing domains, a tragedy given the paucity of knowledge about governing commons in the world, or facilitate sharing and collaboration across domains?

Several of these are merely a matter of good product design and targeting, and would also apply to an organization that really had a primary goal of offering copyright holders additional choices the organization deems are under-provided. I suspect there is plenty of room for innovation in “copyright choice” tools, but I won’t say more in this post, as such have little to do with commons, and whatever CC’s history of copyright choice rhetoric and offering a gaggle of choices, creating such tools is distant from its immediate expertise (other than just knowing lots about copyright) and light years from much of its extended community.

Why bother?

Apart from amusing myself and a few others, why this writeup? The CC 4.0 licenses won’t change, and hopefully there won’t be CC 4.1 or 4.5 or 5.0 licenses for many years. Longevity was an explicit goal for 4.0 (cf. 1.0: 17 months, 2.0: 12 months; 2.5: 20 months; 3.0: 81 months). Still, some of the issues covered here may be interesting to people choosing to use one of the CC 4.0 licenses, and people creating other licenses. Although nobody wants more licenses, often called license proliferation, as an end in itself, many more licenses is the long term trend, of which the entire history of CC is just a part. Further, more licenses can be a good, to the extent they are significantly different from and better than, and as compatible as possible with, existing licenses.

To be totally clear: many new licenses will be created and used over the next 10 years, intended for various domains. I would hope, some for all domains. Proliferators, take heed!

Development tools

A 4.0 wiki page and a bunch of pages under that were used to lay out objectives, issues and options for resolution, and link to drafts. Public discussion was on the cc-licenses list, with tangential debate pushed to cc-community. Drafts and changes from previous drafts were published as redlined word processor files. This all seems to have worked fairly well. I’d prefer drafts as plain text files in a git repository, and an issue tracker, in addition to a mailing list. But that’s a substantially different workflow, and word processor documents with track changes and inline comments do have advantages, not limited to lawyers being familiar with those tools.

100% wiki would also work, with different tradeoffs. In the future additional tools around source repositories, or wikis, or wikis in source repositories, will finally displace word processor documents, but the tools aren’t there yet. Or in the bad future, all licenses will be drafted in word processors in the cloud.

(If it seems that I’m leaving a a lot out, e.g., methodology for gathering requirements and feedback, in-person and teleconferences, etc., I merely have nothing remotely interesting to say, and used “tools” rather than “process” to narrow scope intentionally.)

Internationalization

The 4.0 licenses were drafted to be jurisdiction neutral, and there will be official, equivalent, verbatim language translations of the licenses (the same as CC0, though I don’t think any translations have been made final yet). Legal “porting” to individual jurisdictions is not completely ruled out, but I hope there will be none. This is a wholly positive outcome, and probably the most impactful change for CC itself (already playing out over the past few years, e.g., in terms of scope and composition of CC affiliates), though it is of small direct consequence to most users.

Now, will other license drafters and would-be drafters follow CC’s lead and stop with the vanity jurisdiction license proliferation already?

Databases

At least the EU, Mexico, Russia, and South Korea have created “database rights” (there have been attempts in other jurisdictions), copyright-like mechanisms for entities that assemble databases to persecute others who would extract or copy substantial portions of said databases. Stupid policies that should be abolished, copyright-like indeed.

Except for CC0 and some minor and inconsistent exceptions (certain within-EU jurisdiction “port” versions), CC licenses prior to 4.0 have not “covered” database rights. This means, modulo any implied license which may or may not be interpreted as existing, that a prior-to-4.0 (e.g., CC-BY-3.0) licensee using a database subject to database restrictions (when this occurs is a complicated question) would have permission granted by the licensor around copyright restrictions, but not around database restrictions. This is a pretty big fail, considering that the first job of a public license is to grant adequate permissions. Actual responses to this problem:

  • Tell all database publishers to use CC0. I like this, because everyone should just use CC0. But, it is an inadequate response, as many will continue to use less permissive terms, often in the form of inadequate or incompatible licenses.
  • Only waive or license database restrictions in “ports” of licenses to jurisdictions in which database restrictions exist. This is wholly inadequate, as in the CC scheme, porting involves tailoring the legal language of a license to a jurisdiction, but there’s no guarantee a licensor or licensee in such jurisdictions will be releasing or using databases under one of these ports, and in fact that’s often not the case.
  • Have all licenses waive database restrictions. This sounds attractive, but is mostly confusing — it’s very hard to discern when only database and not copyright restrictions apply, such that a licensee could ignore a license’s conditions — and like “tell database publishers to use CC0″ would just lead many to use different licenses that do purport to conditionally license database rights.
  • Have all licenses grant permissions around database restrictions, under whatever conditions are present in the license, just like copyright.

I think the last is the right approach, and it’s the one taken with the CC 4.0 licenses, as well as by other licenses which would not exist but for CC 3.0 licenses not taking this approach. I’m even more pleased with their generality, because other copyright-like restrictions are to be expected (emphasis added):

Copyright and Similar Rights means copyright and/or similar rights closely related to copyright including, without limitation, performance, broadcast, sound recording, and Sui Generis Database Rights, without regard to how the rights are labeled or categorized. For purposes of this Public License, the rights specified in Section 2(b)(1)-(2) are not Copyright and Similar Rights.

The exclusions of 2(b)(1)-(2) are a mixed bag; see moral and personality rights, and patents below.

CC0 also includes a definition with some generality:

Copyright and Related Rights include, but are not limited to, the following:

  1. the right to reproduce, adapt, distribute, perform,
    display, communicate, and translate a Work;
  2. moral rights retained by the original author(s) and/or
    performer(s);
  3. publicity and privacy rights pertaining to a person’s
    image or likeness depicted in a Work;
  4. rights protecting against unfair competition in regards
    to a Work, subject to the limitations in paragraph 4(a),
    below;
  5. rights protecting the extraction, dissemination, use and
    reuse of data in a Work;
  6. database rights (such as those arising under Directive
    96/9/EC of the European Parliament and of the Council of 11
    March 1996 on the legal protection of databases, and under
    any national implementation thereof, including any amended
    or successor version of such directive); and
  7. other similar, equivalent or corresponding rights
    throughout the world based on applicable law or treaty, and
    any national implementations thereof.

As does GPLv3:

“Copyright” also means copyright-like laws that apply to other kinds of works, such as semiconductor masks.

Do CC0 and CC 4.0 licenses cover semiconductor mask restrictions (best not to use for this purpose anyway, see patents)? Does GPLv3 cover database restrictions? I’d hope the answer is yes in each case, and if the answer is no or ambiguous, future licenses further improve on the generality of restrictions around which permissions are granted.

There is one risk in licensing everything possible, and culturally it seems, specifically in licensing database rights — the impression that licensee which do so ‘create obligations’ related to those rights. I find this an odd way to think of a conditional permission as the creation of an obligation, when the user’s situation without said permission is unambiguously worse, i.e., no permission. Further, this impression is a problem for non-maximally-permissive licenses around copyright, not only database or other copyright-like rights.

In my opinion the best a public license can do is to grant permissions (conditionally, if not a maximally permissive license) around restrictions with as much generality as possible, and expressly state that a license is not needed (and therefore conditions to not apply) if a user can ignore underlying restrictions for some other reason. Can the approach of CC version 4.0 licenses to the latter be improved?

For the avoidance of doubt, where Exceptions and Limitations apply to Your use, this Public License does not apply, and You do not need to comply with its terms and conditions.

These are all trivialities for license nerds. For publishers and users of databases: Data is free. Free the data!

Moral and personality rights

CC 4.0 licenses address them well:

Moral rights, such as the right of integrity, are not licensed under this Public License, nor are publicity, privacy, and/or other similar personality rights; however, to the extent possible, the Licensor waives and/or agrees not to assert any such rights held by the Licensor to the limited extent necessary to allow You to exercise the Licensed Rights, but not otherwise.

To understand just how well, CC 3.0 licenses say:

Except as otherwise agreed in writing by the Licensor or as may be otherwise permitted by applicable law, if You Reproduce, Distribute or Publicly Perform the Work either by itself or as part of any Adaptations or Collections, You must not distort, mutilate, modify or take other derogatory action in relation to the Work which would be prejudicial to the Original Author’s honor or reputation. Licensor agrees that in those jurisdictions (e.g. Japan), in which any exercise of the right granted in Section 3(b) of this License (the right to make Adaptations) would be deemed to be a distortion, mutilation, modification or other derogatory action prejudicial to the Original Author’s honor and reputation, the Licensor will waive or not assert, as appropriate, this Section, to the fullest extent permitted by the applicable national law, to enable You to reasonably exercise Your right under Section 3(b) of this License (right to make Adaptations) but not otherwise.

Patents and trademark

Prior versions were silent, CC 4.0 licenses state:

Patent and trademark rights are not licensed under this Public License.

Perhaps some potential licensor will be reassured, but I consider this unnecessary and slightly harmful, replicating the main deficiency of CC0. The explicit exclusion makes it harder to see an implied license. This is especially troublesome when CC licenses are used in fields in which patents can serve as a barrier. Software is one, for which CC has long disrecommended use of CC licenses largely because software is already well-covered by licenses with which CC licenses are mostly incompatible with; the explicit patent exclusion in the CC 4.0 licenses makes them even less suitable. Hardware design is another such field, but one with fragmented licensing, including use of CC licenses. CC should now explicitly disrecommend using CC licenses for hardware designs and declare CC-BY-SA-4.0 one-way compatible with GPLv3+ so that projects using one of the CC-BY-SA licenses for hardware designs have a clear path to a more appropriate license.

Patents of course can be licensed separately, and as I pointed out before regarding CC0, there could be curious arrangements for projects using such licenses with patent exclusions, such as only accepting contributions from Defensive Patent License users. But the better route for “open hardware” projects and the like to take advantage of this complementarity is to do both, that is use a copyright and related rights license that includes a patent peace clause, and join the DPL club.

DRM

CC 4.0 licenses:

The Licensor waives and/or agrees not to assert any right or authority to forbid You from making technical modifications necessary to exercise the Licensed Rights, including technical modifications necessary to circumvent Effective Technological Measures.

This is a nice addition, which had been previously suggested for CC 3.0 licenses and rejected — the concept copied from GPLv3 drafts at the time. I would have preferred to also remove the limited DRM prohibition in the CC licenses.

Attribution

The CC 4.0 licenses slightly streamline and clarify the substance of the attribution requirement, all to the good. The most important bit, itself only a slight streamlining and clarification of similar in previous versions:

You may satisfy the conditions in Section 3(a)(1) in any reasonable manner based on the medium, means, and context in which You Share the Licensed Material. For example, it may be reasonable to satisfy the conditions by providing a URI or hyperlink to a resource that includes the required information.

This pulls in the wild use from near zero to-the-letter compliance to fairly high.

I’m not fond of the requirement to remove attribution information if requested by the licensor, especially accurate information. I don’t know whether a licensor has ever made such a request, but that makes the clause only pointless rather than harmful. Not quite though, as it does make for a talking point.

NonCommercial

not primarily intended for or directed towards commercial advantage or private monetary compensation. For purposes of this Public License, the exchange of the Licensed Material for other material subject to Copyright and Similar Rights by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange.

Not intended to be a substantive change, but I’ll take it. I’d have preferred a probably more significantly narrowed definition and a re-branding so as to increase the range of and differentiation among the licenses that CC stewards. But at the beginning of the 4.0 licenses process, I expected no progress, so am not disappointed. Branding and other positioning changes could come post-launch, if anyone is so inclined.

I think the biggest failure of the range of licenses with an NC term (and there are many preceding CC) is not confusion and pollution of commons, very roughly the complaints of people who would like NC to have a more predictable meaning and those who think NC offers inadequate permissions, respectively, but lack of valuable use. Licenses with the NC term are certainly used for hundreds of millions of photos and web pages, and some (hundreds of?) thousands of songs, videos, and books, but few where either the licensor or the public gains significant value above what would have been achieved if the licensor had simply offered gratis access (i.e., put stuff on the web, which is incredibly valuable even with no permissions granted). As far as I know, NC licenses haven’t played a significant role in enabling (again, relative to gratis access) any disruptive product or policy, and their use by widely recognized artists and brands is negligible (cf. CC-BY-SA, which Wikipedia and other mass collaboration projects rely on to exist, and CC-BY and CC0, which are part of disruptive policy mandates).

CC is understandably somewhat stuck between free/open norms, which make licenses with the NC an embarrassment, and their numerically large but low value uses. A license steward or would-be steward that really believed a semicommons license regime could do much more would try to break out of this rut by doing a complete rethink of the product (or that part of the product line), probably resulting in something much more different from the current NC implementation than the mere definitional narrowing and rebranding that I started out preferring. This could be related to my commentary on innovation in “copyright choice” tools above; whether the two are really the same thing would be a subject for inquiry.

NoDerivatives

If there were licenses that should not have been brought to version 4.0, at least not under the CC brand, it would have been CC-BY-NC-ND and CC-BY-ND.

Instead, an express permission to make derivatives so long as they are not shared was added. This change makes so-called text/content/data mining of any work under any of the CC version 4.0 licenses unambiguously permitted, and makes ND stick out a tiny bit less as an aberration from the CC license suite modeling some moderate copyright reform baseline.

There are some costs to this approach: surprise that a “no derivatives” license permits derivatives, slight reduction in scope and differentiation among licenses that CC stewards, giving credence to ND licenses as acceptable for scholarship, and abetting the impression that text/content/data mining requires permission at all. The last is most worrisome, but (as with similar worries around licensing databases) can be turned into a positive to the extent CC and everyone knowledgeable emphasizes that you ought not and probably don’t need a license; we’re just making sure you have the freedoms around CC licensed works that you ought to have anyway, in case the info regulation regime gets even worse — but please, mine away.

ShareAlike

This is the most improved named (BY/NC/ND/SA) elements in CC 4.0 licenses, and the work is not done yet. But first, I wish it had been improved even more, by making more uses unambiguously “trigger” the SA provision. This has been done once, starting in 2.0:

For the avoidance of doubt, where the Work is a musical composition or sound recording, the synchronization of the Work in timed-relation with a moving image (“synching”) will be considered a Derivative Work for the purpose of this License.

The obvious next expansion would have been use of images (still or moving) in contextual relation to other material, eg illustrations used in a text. Without this expansion, CC-BY-SA and CC-BY-NC-SA are essentially identical to CC-BY and CC-BY-NC respectively for the vast majority of actual “reuse” instances. Such an expansion would have substantially increased the range of and differentiation among licenses that CC stewards. The main problem with such an expansion (apart from specifying it exactly) would be increasing the cost of incompatibility, where texts and images use different licenses. This problem would be mitigated by increasing compatibility among copyleft licenses (below), or could be eliminated by broadening the SA licensing requirement for uses triggered by expansion, eg any terms granting at least equivalent permissions, such that a CC-BY-SA illustration could still be used in a text licensed under CC-BY or CC0. Such an expansion did not make the cut, but I think together with aforementioned broadening of licensing requirements, such a modulation (neither strictly “stronger” nor “weaker”) would make for an interesting and heretofore unimplemented approach to copyleft, in some future license.

Apart from a subtle improvement that brings SA closer to a full “or later versions” license, and reflects usual practice and understanding (incidentally, “no sublicensing” in non-SA licenses remains pointless, is not to be found in most non-CC permissive licenses, and should not be replicated), the big improvements in CC 4.0 licenses with the SA element are the addition of the potential for one-way compatibility to CC-BY-SA, adding the same compatibility mechanism to CC-BY-NC-SA, and discussions with stewards of potentially compatible licenses which make the realization of compatibility more likely. (I would have included a variation on the more complex but in my view elegant and politically advisable mechanism introduced in MPL 2.0, which allows for continued use under the donor compatible license as long as possible. Nobody demanded such, so not adding the complexity was perhaps a good thing.)

I hope that in 2014 CC-BY-SA-4.0 will be declared bilaterally compatible with the Free Art License 1.3, or if a new FAL version is required, it is being worked on, with achieving bilateral compatibility as a hard requirement, and more importantly, that CC-BY-SA-4.0 is declared one-way compatible (as a donor) with GPLv3+. An immediate step toward those ends will be finalizing an additional statement of intent regarding the stewardship of licenses with the ShareAlike element.

Though I’ll be surprised if any license appears as a candidate for compatibility with CC-BY-NC-SA-4.0, adding the mechanism to that license is a good thing: as a matter of general license stewardship, reducing the barriers to someone else creating a better NC license (see above), and keeping “porting” completely outside the 4.0 license texts (hopefully there will be no porting, but if there is any, compatibility with the international versions in licenses with the SA element would be exclusively via the compatibility mechanism used for any potentially compatible license).

Tech

All license clauses have id attributes, allowing direct linking to a particular clause. These direct links are used for references within the licenses. These are big usability improvements.

I would have liked to see an expansive “tech” (including to some extent design) effort synchronized with the 4.0 licenses, from the practical (e.g., a canonical format for license texts, from which HTML, plain text, and others are generated; that may be HTML, but the current license HTML is inadequate for the task) to the impractical (except for increasing CC’s reputation, e.g., investigating whether any semantic annotation and structure, preferably building on existing research, would be useful, in theory, for the license texts, and possibly even a practical aid to translation), to testing further upgrades to the ‘legal user interface’ constituted by the license texts and “deed” summaries (e.g., combining these), to just bringing various CC tooling and documentation up to date with RDFa 1.1 Lite. But, some of these things could be done post-launch if anyone is so inclined, and my understanding is that CC has only a single technology person on staff, dedicated to creating other products, and most importantly, the ability to directly link to any license clause probably has more practical benefits than anything on my wishlist.

Readability

One of the best things about the CC 4.0 licenses is their increased understandability. This is corroborated by crude automated readability metrics below, but I suspect these do not adequately characterize the improvement, for they include three paragraphs of explanatory text not present in previous versions, probably don’t fully reflect the improvement of splitting hairball paragraphs into lists, and have no mechanism for accounting for how the improved usability of linking to individual clauses contributes to understandability.

CC-BY-NC-SA (the license with the most stuff in it, usually used as a drafting template for others) from version 1.0 through 4.0, including 4.0 drafts (lower numbers indicate better readability, except in the case of Flesch; Chars/(Flesch>=1) is my gross metric for how painful it is to read a document; see license automated readability metrics for an explanation):

SHA1 License Characters Kincaid ARI Coleman-Liau Fog Lix SMOG Flesch Chars/(Flesch>=1)
39b2ef67be9e5b4e743e5269a31ad1691515eede CC-BY-NC-SA-1.0 10228 13.3 16.3 14.2 17.0 59.7 14.2 48.4 211
5800ac2d32e35ace035cdcae693423cd9ff5bb6f CC-BY-NC-SA-2.0 11927 13.3 16.2 14.7 17.1 60.0 14.4 47.0 253
e5f44c2df6b1391d1ddb6efb2db6f90670e4ae67 CC-BY-NC-SA-2.5 12013 13.1 16.0 14.6 16.9 59.6 14.2 47.7 251
a63b7e81e7b9e30df5d253aed1d2991af47992df CC-BY-NC-SA-3.0 17134 16.4 19.7 14.2 20.6 67.0 16.3 38.8 441
8b36c30ed0510d9ca9c69a2ef826b9fd52992474 by-nc-sa-4.0d1 12465 13.0 15.0 14.9 16.3 57.4 14.0 43.9 283
4a87c7af5cde7729e2e456ee0e8958f8632e3005 by-nc-sa-4.0d2 11583 13.1 14.8 14.2 16.8 56.2 14.4 44.7 259
bb6f239f7b39343d62440bff00de24da2b3d256f by-nc-sa-4.0d3 14422 14.1 15.8 15.1 18.2 61.0 15.4 38.6 373
cf5629ae38a745f4f9eca429f7b26af2e71eb109 by-nc-sa-4.0d4 14635 13.8 15.6 15.5 17.8 60.2 15.2 38.6 379
a5e1b9829fd287cbe255df71eb9a5aad7fb19dbc by-nc-sa-4.0d4v2 14808 14.0 15.8 15.5 18.0 60.6 15.2 38.1 388
887f9a5da675cf681421eab3ac6d61f82cf34971 CC-BY-NC-SA-4.0 14577 13.1 14.7 15.7 17.1 58.6 14.7 40.1 363

Versions 1.0 through 4.0 of each of the six CC licenses brought to version 4.0, and CC0:

SHA1 License Characters Kincaid ARI Coleman-Liau Fog Lix SMOG Flesch Chars/(Flesch>=1)
74286ae0dfea38c489437bf659b209737945145c CC0-1.0 5116 16.2 19.5 15.0 19.5 66.3 15.6 36.8 139
c766cc6d5e63277e46a3d83c6254e3528082587b CC-BY-1.0 8867 12.6 15.5 14.1 16.4 57.8 13.8 51.3 172
bf23729bec8ffd0de4d319fb33395c595c5c762b CC-BY-2.0 9781 12.1 14.9 14.3 16.1 56.7 13.7 51.9 188
024bb6d37d0a17624cf532bd14fbd42e15c5a963 CC-BY-2.5 9867 11.9 14.7 14.2 15.8 56.3 13.6 52.6 187
20dc61b94cfe1f4ba5814b340095b4c3fa23e801 CC-BY-3.0 14956 16.1 19.4 14.1 20.4 66.1 16.2 40.0 373
00b29551deee9ced874ffb9d29379b92f1487045 CC-BY-4.0 13003 13.0 14.5 15.4 16.9 57.9 14.6 41.1 316
e0c4b13ec5f9b5702d2e8b88d98b803e07d65cf8 CC-BY-NC-1.0 9313 13.2 16.2 14.3 17.0 59.3 14.1 49.3 188
970421995789d2e8189bb12071ab838a3fcf2a1a CC-BY-NC-2.0 10635 13.1 16.1 14.6 17.2 59.5 14.4 48.1 221
08773bb9bc13959c6f00fd49fcc081d69bda2744 CC-BY-NC-2.5 10721 12.9 15.8 14.5 16.9 59.0 14.2 48.9 219
9639556280637272ace081949f2a95f9153c0461 CC-BY-NC-3.0 15732 16.5 19.9 14.1 20.8 67.2 16.4 38.7 406
afcbb9791897e1e2f949d9d56ba64164746e0828 CC-BY-NC-4.0 13520 13.2 14.8 15.6 17.2 58.6 14.8 39.8 339
9ab2a3818e6ccefbc6ffdd48df7ecaec25e32e41 CC-BY-NC-ND-1.0 8729 12.7 15.8 14.4 16.4 58.6 13.8 51.0 171
966c97357e3b529e9c8bb8166fbb871c5bc31211 CC-BY-NC-ND-2.0 10074 13.0 16.1 14.7 17.0 59.7 14.3 48.8 206
c659a0e3a5ee8eba94aec903abdef85af353f11f CC-BY-NC-ND-2.5 10176 12.8 15.9 14.6 16.8 59.2 14.2 49.3 206
ad4d3e6d1fb6f89bbd28a44e263a89430b575dfa CC-BY-NC-ND-3.0 14356 16.3 19.7 14.1 20.5 66.8 16.2 39.7 361
68960bdf512ff5219909f932b8a81fdb255b4642 CC-BY-NC-ND-4.0 13350 13.3 14.8 15.7 17.2 58.4 14.8 39.4 338
39b2ef67be9e5b4e743e5269a31ad1691515eede CC-BY-NC-SA-1.0 10228 13.3 16.3 14.2 17.0 59.7 14.2 48.4 211
5800ac2d32e35ace035cdcae693423cd9ff5bb6f CC-BY-NC-SA-2.0 11927 13.3 16.2 14.7 17.1 60.0 14.4 47.0 253
e5f44c2df6b1391d1ddb6efb2db6f90670e4ae67 CC-BY-NC-SA-2.5 12013 13.1 16.0 14.6 16.9 59.6 14.2 47.7 251
a63b7e81e7b9e30df5d253aed1d2991af47992df CC-BY-NC-SA-3.0 17134 16.4 19.7 14.2 20.6 67.0 16.3 38.8 441
887f9a5da675cf681421eab3ac6d61f82cf34971 CC-BY-NC-SA-4.0 14577 13.1 14.7 15.7 17.1 58.6 14.7 40.1 363
e4851120f7e75e55b82a2c007ed98ffc962f5fa9 CC-BY-ND-1.0 8280 12.3 15.5 14.3 16.1 57.9 13.6 52.4 158
f1aa9011714f0f91005b4c9eb839bdb2b4760bad CC-BY-ND-2.0 9228 11.9 14.9 14.5 15.8 56.9 13.5 52.7 175
5f665a8d7ac1b8fbf6b9af6fa5d53cecb05a1bd3 CC-BY-ND-2.5 9330 11.8 14.7 14.4 15.6 56.5 13.4 53.2 175
3fb39a1e46419e83c99e4c9b6731268cbd1591cd CC-BY-ND-3.0 13591 15.8 19.2 14.1 20.0 65.6 15.9 41.2 329
ac747a640273815cf3a431be0afe4ec5620493e3 CC-BY-ND-4.0 12830 13.0 14.4 15.4 16.9 57.6 14.6 40.7 315
dda55573a1a3a80d294b1bb9e1eeb3a6c722968c CC-BY-SA-1.0 9779 13.1 16.1 14.2 16.8 59.1 14.0 49.5 197
9cceb80d865e52462983a441904ef037cf3a4576 CC-BY-SA-2.0 11044 12.5 15.3 14.4 16.2 57.9 13.8 50.2 220
662ca9fce7fed61439fcbc27ca0d6db0885718d9 CC-BY-SA-2.5 11130 12.3 15.0 14.4 16.0 57.5 13.6 50.9 218
4a5bb64814336fb26a9e5d36f22896ce4d66f5e0 CC-BY-SA-3.0 17013 16.4 19.8 14.1 20.5 67.2 16.2 38.9 437
8632363dcc2c9fc44f582b14274259b3a35744b2 CC-BY-SA-4.0 14041 12.9 14.4 15.4 16.8 57.8 14.5 41.4 339

It’s good for automated readability metrics that from 3.0 to 4.0 CC-BY-SA is most improved (the relevant clause was a hairball paragraph; CC-BY-NC-SA should have improved less, as it gained the compatibility mechanism) and CC-BY-ND is least improved (it gained express permission for private adaptations).

Next

I leave a list of recommendations (many already mingled in or implied by above) to a future post. But really, just use CC0.

Posted in Commons, Creative Commons, DRM, Intellectual Protectionism, Open Access, Open Hardware, Open Source, Patents, Peeves, Public Domain, Semantic Web, Wikipedia | 8 Comments »

Software Patent NATO, 1993

Tuesday, November 26th, 2013

In my thoughts on the Defensive Patent License, I neglected to note in the history section a similar proposal made in 1993 by John Walker, founder of Autodesk, PATO: Collective Security In the Age of Software Patents:

[T]he trend toward increased litigation, constraining innovation in the software industry, is accelerating. The U.S. government is using trade negotiations to force other countries to institute software patents in their own markets.

While eliminating software patents would be the best solution, changing the law takes a long time and is uncertain to succeed. I’ve been trying to puzzle out how the software industry might rescue itself from immolation through litigation and came up with the following proposal.

Could have been written in 2013.

I’ve been thinking about using NATO as a model of a patent defence consortium. Suppose a bunch of big software companies (perhaps led by Oracle, who’s already taken the point on this) were to form PATO–Patent And Technology Organisation–and contribute all their current software patents, and all new software patents they were granted as long as they remained a member of PATO, to its “cross-licensing pool”. To keep the lawyers and shareholders from going nuts, the patents would be licensed through PATO but would remain the property of the member–a member could withdraw with appropriate notice and take the patents back from the pool.

Any member of PATO would be granted an automatic, royalty-free license to use any patent in the cross-licensing pool. Thus, by putting your patents in the pool, you obtain access to all the others automatically (but if you withdraw and pull your patents, of course you then become vulnerable for those you’ve used, which creates a powerful disincentive to quit).

The basic principle of NATO is that an attack on any member is considered an attack on all members. In PATO it works like this–if any member of PATO is alleged with infringement of a software patent by a non-member, then that member may counter-sue the attacker based on infringement of any patent in the PATO cross-licensing pool, regardless of what member contributed it. Once a load of companies and patents are in the pool, this will be a deterrent equivalent to a couple thousand MIRVs in silos–odds are that any potential plaintiff will be more vulnerable to 10 or 20 PATO patents than the PATO member is to one patent from the aggressor. Perhaps the suit will just be dropped and the bad guy will decide to join PATO….

Differences with the DPL, two decades hence:

  • PATO was to cover software patents only; a challenge to define.
  • PATO members could counter-sue attackers with patents from any other member; I have no idea whether this is legally feasible.
  • PATO never moved beyond raw idea stage, as far as I know, while legal work on the DPL has gone on for a few years, DPL 1.0 is complete, and the project is set for a public launch in February.

In 1993, software patents were new, and still opposed by Oracle and Microsoft. Since then both have become software patent aggressors and defend the idea of software patents.

Many companies that claim to dislike software patent aggression in 2013 will become aggressors over the next years, or their patents will be obtained and used by trolls and other aggressors. Becoming a DPL user now may be an effective way for such companies to avoid this fate, and avoid contributing to the stifling of equality, freedom, and innovation.

…

Addendum 20131202: Another difference between the PATO sketch and the DPL implementation is that the former includes “US$25/year” to be a member, while the latter is gratis. I assume that the nascent DPL Foundation will be able to attract adequate grants and other support, perhaps more than could be obtained through a membership fee, but the choice is at the least an interesting and important one.

Posted in Economics, Inequality Promotion, Intellectual Protectionism, Patents | No Comments »

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