Shut up and take my money, but do it now before I find it for free!

Fascinating op-ed over at the Guardian on staggered releases driving people to piracy.

I agree that there's a clear effect on piracy resulting from botched international rollouts, but I think there are two issues conflated here.  One is miscalculation by content companies--intentional delay, which does indeed rob them of legitimate customers and encourage piracy.  But the other is that it's not feasible to negotiate release deals worldwide simultaneously. Sometimes you just can't legally offer things in a timely manner.

That's not a legitimate driver of piracy.  Would simultaneous worldwide release turn some pirates into customers? No doubt.  But would the cost of doing so (a) preserve current profits and (b) not create additional pirates as a result of higher prices? Unlikely.

I find fault with the "legitimate alternative" argument just as I do with the spurious "lost sales" arguments on the other side. The truth is that wanting instant gratification is just as powerful a piece of social psychology as externalizing blame.  It's not right when the media companies do it and it's equally bizarre for people to whine about the draconian measures and outlandish claims of the *AA and then turn around and do the same.

(Ab)use of patents

There's a charmingly predictable fracas brewing over at Slashdot regarding today's announcement that the EU plans to act regarding Samsung's abuse of standards-essential patents in their dispute with Apple.

As of right now the highest-promoted comment is "And yet...they do nothing to Apple and their rounded corners?"

That's exactly right.  Setting aside the gross oversimplification of that comment, the galaxy of difference between design and utility patents, and the merits of any such patents, the actionable item here isn't present in any of Apple's asserted patents.By contributing your patent to a standard and thus earning the status of a standards-essential patent (SEP), you give up certain powers that you would otherwise have.  For fans of the Laffer curve, you're engaging in an act that vastly broadens the base of your royalty audience (by putting it into a standard) but also greatly constraining your freedom to set royalty rates.  This is also the reason why Apple can set royalty rates at whatever it wants for its proprietary patents while Samsung can't do the same for its SEPs.

Likewise, you can't be as aggressive in discussions, whatever the rates. You don't have the power to walk away unilaterally.  If someone says they're already licensed through a component supplier, you don't get to deny that without supporting authority.  You don't get to say that an offer is unfairly low and end negotiations to try to get a competing product banned.  The general intent is that you don't get to use SEPs as a weapon.  Standards bodies and governments take an unkind view to patent ambush.  That's the price you pay, and that's why Samsung is in trouble here.  

If you have set a complicated pricing structure for those patents involving monetary and non-monetary consideration being exchanged, then you also must tread lightly when negotiating offers.

On the other hand, Apple is legally free to be as unreasonable as it wants with non-SEP utility patents and design patents.  Neither Apple nor Samsung are strangers to adverse actions in the EU, so the nerd rage should just be put in check.  Apple's involvement here isn't even a factor in the EU's preliminary findings--the only important facts are around Samsung's conduct.

Myth of the EULA, part 2

This is a continuation of the Myth of the EULA, part 1.

Myth 2: I have rights because I paid for the software

These variations play on the idea that once money changes hands, what once was yours is now mine.  This is true with an important caveat:  you only get what you paid for.  Buying a a gallon of milk for $5 doesn't get me the whole cow.

Purchasing boxed software does not confer upon a buyer any rights in and of itself, other than to the bits of plastic and paper themselves. It doesn't matter for the purposes of the law that you were able to leave a retail establishment with a box or that money was exchanged for the mere option of future use of software. There is a countless number of such situations in commerce. The fact that you are offered as a convenience an option to make the purchase up front and evaluate the terms later is not a loophole.

At the outset, a purchase is just that: an act of commerce. A copyright holder produces copies and offers them for sale on the following terms: pay them $50 and agree to a set of conditions, and you can have this copy.  If you pay $50 and walk away with the box, you haven't perfected the distribution yet.  You've obtained some rights that Mr. Copyrightholder can't successfully sue you about--you can set the box on fire if you'd like or sell it on to someone else--but you're not totally in the clear.

The Myth of the EULA

Go to any geek-infested corner of the Internet and you'll find a discussion of half-truths surrounding the legality, use, and avoidance of software licensing (often referred to as end-user license agreements ["EULA"], despite this being only one type of license).  Most of them are entertaining and creative, but carry little to no weight in the real world.

Ultimately, this does much more harm than good.  Open source and capital-F Free licenses rely on the same legal mechanisms for enforcement.  There is plenty of room for debate on whether the morality of "copyleft" (where you are granted rights in exchange for agreeing to disclose changes and allow similar use by others) stands superior to more permissive licenses (that grant rights but do not impose the copyleft obligations) or to proprietary licenses (that some view as used primarily to restrict rights).  However, the legal mechanics are the same.

Many individual licenses contain provisions that are invalid, unenforceable, illegal, or some combination of the three.  There are serious problems with some software licenses and the concessions individual users and customers must make with some high-profile applications and online services, and shifts in legal thinking may pave the way for a more balanced approach in the future.  For a time, courts were rejecting binding arbitration clauses left and right (although the pendulum seems to have swung the other way lately).  But the legal weight of individual agreements or provisions within them says nothing of the software license agreement as a tool.

Of Ransoms and Rounded Rectangles, Part 2

This is a continuation of a series on issues surrounding standards-essential patents, FRAND licensing, and the other legal/business attributes that are in the spotlight thanks to the Apple/Samsung/Google/Microsoft smartphone wars.

Samsung's patents are part of the 3G standard so they can't sue to stop Apple from using them

False.  Samsung does have a number of standards-essential patents regarding cellular communication. However, industry standards are not necessarily free and open (a topic for another day!).  Corporations regularly develop patentable work on their own, and for reasons of monetization, influence and control, and/or interoperability, they sometimes submit those patents to standards bodies.  The cost of doing so is an obligation to license those patents under fair, reasonable, and non-discriminatory (FRAND) terms.

Since Samsung's patents are important hardware patents and Apple's are just silly design stuff, doesn't Samsung have the upper hand with way more valuable patents?

Not necessarily. Samsung's patents are in a FRAND pool and Apple's are not.  Apple is under no obligation to license any patents that Samsung might be infringing upon at any cost.  If Apple wants to charge $50 per unit to license patents it holds, it can.  It can even charge Samsung $50 and let Microsoft use them for free in a cross-licensing deal.  

Samsung doesn't have that option.  They have no choice but to accept an amount that is consistent with what other companies are paying.  That's not easy, because the big players don't pay anything, having cross-licensing deals.  Samsung is arguing that because Apple is a big player with little to contribute to the standards, that it should pay a lot more than nothing.  Apple is arguing that Samsung is demanding that Apple pay for rights already held by Qualcomm, Apple's supplier of 3G radios, in essence "double dipping".  I'll look at that in more detail another time.

Twitter's new DMCA policy. What's changed?

Twitter recently revised its policies for handling tweets and uploaded content subjected to a DMCA takedown notice.  What's interesting about this is that it is both user-focused in terms of increased transparency as well as policy-minded in terms of calling greater attention to copyright (ab)use online.

Under the DMCA, a 1998 revision of copyright law roughly as popular online as Mitt Romney is in San Francisco, copyright holders can make a request to remove unauthorized use or display of their content (the "takedown notice") to websites and services that host content.  The site hosting the content, in order to comply with the law and maintain its protection from being held liable for copyright infringement, must remove that content.  The law does not require that the sites notify the users whose content is being removed.  However, users can counterclaim, stating either that the content is in fact theirs or that they have authorization to use it.  If the original notifying party who issued the takedown notice fails to respond, the content can be restored in about two weeks.

In the past, Twitter would simply pull the content.  (Whether they also notified users of this action is unknown to me, having not experienced this myself or knowing anyone who has.)  Now, however, Twitter will "withhold" the tweet or picture, replacing it with a notification that a copyright holder has claimed infringement.  From a technical perspective, the operation is the same (the deleted tweet could presumably be restored on action by Twitter if a counterclaim was filed).  The withheld tweets linger in the same purgatory as deleted tweets before they are permanently wiped from Twitter's servers.  Now, however, instead of slipping silently away, they're put on display so that everyone knows what is happening.  Of course, in the cases of legitimate takedown requests, I would hope that it's a simple matter for a Twitterer to delete the badge and move on without calling attention to a momentary lapse.

I mentioned in an earlier post how Twitter can be a valuable resource for journalists (and researchers, for that matter), and this change is a stroke of genius at crowdsourcing awareness DMCA abuse.  Because the "withheld" tweet is represented by a badge on the user's feed, other Twitter users can tweet about the issue.  In doing so, not only does it provide a platform for commentary, but it also, assuming some consistency in hashtags or content, might correlate with the frequency at which certain rightsholders (or representatives thereof) employ DMCA takedown notices, similar to the way Youtube identifies who requested the removal of videos.  The advantage over Youtube's handling, however, is that Twitter can be indexed and referenced in a way that is not possible on Youtube (unless you're internal to Google).  Twitter also submits each takedown notice and counterclaim, de-identified as to the alleged infringer, to Chilling Effects, a clearinghouse of information on DMCA takedowns.

By capturing and publicizing not only the notices, but the discussion surrounding them, while at the same time improving the user experience, Twitter has demonstrated a commitment to preserving a system of rich discussion and sharing online and not simply the bare-minimum approach to compliance that large rightsholder groups designed the law to encourage.

Cough up the cash, Google? Not so fast.

Google News is facing pressure from Germany, France, and Brazil to start paying for linking to outside sources on its website.  Publishers feel that by having their content referenced and briefly summarized with other similar sources, that fewer people are visiting their sites.  No, seriously. They think that prominent exposure and easy access back to their content is having a negative impact on traffic.

Of Ransoms and Rounded Rectangles, part 1

One of the most difficult disputes playing out right now is the Samsung-Apple showdown.  It's interesting not so much for what it is as for the absolute entrenchment of people discussing it. While the merits are certainly worth looking at in this series, what I'm going to start with are some conceptual errors demonstrated by online advocates of both sides.

Apple tried to patent "rounded rectangles", which were invented thousands of years ago, so it's not valid and they've got nothing.

False.  The '677 patent most people reference in that dispute makes no such claim.  The patent in question is a design patent, which is an industrial design right.  Although it's called a patent, it has virtually nothing to do with utility patents.  In fact, in the majority of countries around the world, it's not even called a patent.  However, in the United States, design rights don't exist as an integrated concept, but instead are shoehorned into existing frameworks (the concepts of moral rights, droit d'auteur, and personal use--what some mistakenly lump into the US "Fair Use" exemption--are similar in that regard).    Protections for industrial designs therefore are sprinkled throughout our IP framework: copyrights protect the work of the design process and the marketing of the design, trademarks protect the branding (e.g., the Apple logo and iPhone name), trade dress protects the appearance of the product and packaging, and utility patents protect the functional inventions needed to make the design possible (e.g.,  welding or cutting technologies, integrating antennae into the body).