The art of the single sentence paragraph

Wednesday, Jun 9, 2010 1:46 pm
William Barnes

Sometimes you’re reading a case, feeling weighed down by some section, and then you hit a beautiful, understated single sentence paragraph that just makes you burst out laughing. I think that the single sentence paragraph doesn’t get enough attention. People love the Denning style openers, but they’re often so contrived that you feel awkward for the rest of the judgement. If nothing else, the Denning opener sets you up for a let down because no matter how funny the first few sentences are, at some point you have to back to work. One sentence paragraphs, on the other hand, are uplifting. The relieve the stress of the preceding paragraphs. Consider the example below. Feel the weight of the numbers and then the relaxation of the beautiful understatement at the end (and don’t peek). That is how to write a judgement.

2 The case is an example of what is best described as ‘mega-litigation’. By that expression, I mean civil litigation, usually involving multiple and separately represented parties, that consumes many months of court time and generates vast quantities of documentation in paper or electronic form. An invariable characteristic of mega-litigation is that it imposes a very large burden, not only on the parties, but on the court system and, through that system, the community.

3 Before briefly explaining the issues in the case and the outcome, I wish to record some of the features of this particular example of mega-litigation.

4 The trial lasted for 120 hearing days and took place in an electronic courtroom. Electronic trials have many advantages, but reducing the amount of documentation produced or relied on by the parties is not one of them. The outcome of the processes of discovery and production of documents in this case was an electronic database containing 85,653 documents, comprising 589,392 pages. Ultimately, 12,849 ‘documents’, comprising 115,586 pages, were admitted into evidence. The Exhibit List would have been very much longer had I not rejected the tender of substantial categories of documents that the parties, particularly Seven, wished to have in evidence.

5 Quite apart from the evidence, the volume of written submissions filed by the parties was truly astonishing. Seven produced 1,556 pages of written Closing Submissions in Chief and 812 pages of Reply Submissions (not counting confidential portions of certain chapters and one electronic attachment containing spreadsheets which apparently runs for 8,900 or so pages). The Respondents managed to generate some 2,594 pages of written Closing Submissions between them. The parties’ Closing Submissions were supplemented by yet further outlines, notes and summaries.

6 In addition, the pleadings amounted to 1,028 pages. The statements of lay witnesses that were admitted into evidence run to 1,613 pages. The expert reports in evidence totalled 2,041 pages of text, plus many hundred pages of appendices, calculations and the like. The transcript of the trial is 9,530 pages in length.

7 I have not been idle these past nine months.

If you didn’t laugh, I probably built it up too much. Part of the trick to a proper single sentence paragraph is that its unexpected. Next time you run across one, though, you should savour it.

Spying on student laptops: Teachers just can’t win

Friday, Feb 26, 2010 11:50 am
William Barnes

So there is this school in Philadelphia that has a laptop program. Unfortunately, it turned out that the laptops had monitoring software on them and, even worse, the school was using the software to check in on kids at home. This led to Blake Robbins getting disciplined for eating Mike & Ikes candy in his bedroom (granted, it does look like some sort of crazy futuristic hallucinogenic pill). This post has nothing to do with that school.

Instead, I want to talk about New York City Intermediate School 339 (they ran out of war heroes and presidents, I guess). This school also has a laptop program. Instituted by the new principal Jason Levy in 2005, the laptop program seems to have saved the school. In 2005, 9% of students performed at grade level in math. Through 2009, the school saw year-over-year improvements to a current 62% of students performing at grade level. Kids are learning how to use word processors and spreadsheets; they’re blogging; they’re engaging in environmental and political activism.

It all sounds great, I think, but Cory Doctorow disagrees with me. Well, not with me… Technically, I disagree with him… Quiet you, this is my blog. He disagrees with me.

In light of the Philadelphia scandal, Cory posted a link to the PBS story with a comment about how it must suck being a kid today and one teacher’s comments he (well, the source) finds particular horrible. To quote from the quote that Cory quoted:

A few weeks ago, Frontline premiered a documentary called “Digital Nation”. In one segment, the vice-principle of Intermediate School 339, Bronx, NY, Dan Ackerman, demonstrates how he “remotely monitors” the students’ laptops for “inappropriate use”. (his demonstration begins at 4:36)

He says “They don’t even realize we are watching,” “I always like to mess with them and take a picture,” and “9 times out of 10, THEY DUCK OUT OF THE WAY.

He says the students “use it like it’s a mirror” and he watches. He says 6th and 7th graders have their cameras activated. It looks like the same software used by the Pennsylvania school that is being investigated for covertly spying on students through their webcams.

It does sound pretty bad when you put it that way. But it is taken entirely out of context. First, it’s important to note that the laptops are for in-class use only (the kids aren’t taking them home and from the looks of it they might not even use the same one each day). Second, in the segment in question, he demonstrates how they can connect to a computer and view the desktop. They happen to connect to a computer where the student is running Photo Booth to fix her hair instead of working. He explains what Photo Booth is and that the kids use it like a mirror. Then he clicks the “Take Picture” button in Photo Booth. Important to note: he doesn’t take a picture on his computer, he causes Photo Booth to take one. If you’ve ever used Photo Booth, you’ll know this means the screen darkens, a count down appears (3…2…1…), and the screen flashes bright white for half a second. He has a little chuckle, the kid shuts down Photo Booth and goes back to work.

This seems like exactly the attitude I want a teacher to have. It shows he has a sense of humour. But people try to make him sound like a creep. Why is it that every time a teacher demonstrates a sense of humour or creativity, somebody has to give them bad press? Just last week, there were the two teachers who did a reverse (girl sitting, guy dancing) lap dance during a pep rally in Winnipeg. The teachers have been suspended for their innappropriate behaviour. Here, we have a teacher who plays a harmless joke on a student to get her to go back to work and people are twisting him into some sort of pervert or criminal. I read Boing Boing every day. It’s great, but it really can be as reactionary and shallow as Fox News. Getting attacked from the right and the left, no wonder teachers are so cranky all of the time.

Plenty of people aren’t just against the “taking pictures” but rather the very fact that monitoring is happening in the first place. I think it’s completely appropriate for elementary school officials to monitor laptop use in class (particularly on school-owned laptops being used for assigned computer-based work). It’s the equivalent of a teacher walking up and down the aisles and checking that students are working. Who hasn’t had a teacher walk up behind them when they’re passing notes and clear their throat or confiscate their paper fortune teller? Granted, it’d be a bit nicer if students got a little popup when the teacher connected, but I don’t think that is entirely necessary.

Context matters when you’re talking about privacy. When you’re in class, your expectations are different than when you’re at home. The laptops are given (ie: free) for a specific purpose in a specific place. The school can set what conditions it wants on their use.

Asper Panel: Bills C-46 & C-47, Overdue Update or Big Brother?

Thursday, Feb 25, 2010 7:30 pm
William Barnes

The David Asper Centre for Constitutional Rights held a panel today on bills C-46 and C-47, which were introduced into the House of Commons in the last session and would have made it easier for police to get access to ISP subscriber data. The panelists were Prof. David Murakami Wood (Queens), Prof. Lisa Austin (UofT), and Robert Hubbard (Crown Law Office – Criminal). The panel was moderated by Graeme Norton (CCLA).

Graeme Norton began with a quick overview of the relevant changes in the two bills. Bill C-46 would grant three powers to the police: an order requiring an ISP to preserve data (including usage and location where applicable) on a subscriber; an order requiring the ISP to turn over the data; access to real time usage data. It is important that the first two orders would be available on reasonable suspicion rather than the higher standard of reasonable and probable grounds. Bill C-47 would allow the police to obtain subscriber information (including name, phone number, address, IP address, mobile phone identifiers) from a telecommunications provider without a warrant.

David Wood views the bills as part of a larger movement to expand the definition of lawful access and determine who has control over data about individuals. We should think about the effect of our policy choices on other jurisdictions (where one country goes, others follow). He then considered regimes being put in place in other countries, placing particular emphasis where these measures were forced through despite significant opposition.

In the EU, the European Parliament is considering mandating that telecommunications companies retain traffic data (source, destination, date, duration, type) for all subscribers. The measure is being defended as necessary for security, but was raised as a commercial regulation issue. In the EU, security bills must be passed unanimously while commercial regulation bills need only a simple majority. The bill is opposed by Germany and Sweden. In Sweden itself, the police have warrantless access to international phone calls, faxes, and emails. Contrary to Swedish practice (bills are worked until there is consensus) this bill was pushed through on a slight majority (141-138, I beleive). In the UK, the government already has access to a large amount of data on its citizens. It is currently promoting a bill that will grant police access to social networking and online gaming data (at significant costs). 40% of UK citizens consulted were totally opposed (more were moderately or slightly opposed). Brazil has placed monitoring provisions inside omnibus bills intending to combat child pornography, cyber warfare, and cyber crime.

In Canada, the government points to all these developments as support for its policies. It says the measures are needed to comply with international obligations and to compete globally. Norton concluded by stating that this will lead to a chilling effect (citizens will be nervous about legal activities online) and there is a fine line between that and overt censorship. Lawful access silences debate and turns the Internet into just another broadcast channel like television.

Robert Hubbard disagreed with Norton. The legislation is no different from any other criminal legislation that touches on the privacy interest. With only one exception, the legislation requires a warrant. This is the approach taken by all other similar laws. Further, the trends globally are relevant because s. 1 of the Charter requires us to have regard to other free and democratic societies. Canada is actually far behind the curve in tackling this issue. The US and Australia, for example, have had lawful access legislation for over a decade. The United States has spent 15 years requiring telecommunications companies to create the infrastructure to provide access. Canadian companies usually follow the same procedures and use the same technology as American companies and now have all the infrastructure necessary. Canada is just recognizing that fact. Canada is out of step with international expectations, modern technology, and modern society. This legislation fixes that and all it says is go to a judge and get an order for the information.

Lisa Austin took a middle ground between the above positions. Austin said the issue is justification. The Privacy Commissioner has stated that nobody has even attempted to demonstrate that the current system does not meet the needs of law enforcement. There is no need for the increased powers, but this type of legislation keeps getting introduced, why? It used to be about terrorism, then about child pornography, but it is far too broad to really be about addressing these extraordinary crimes. What bothers Austin is the increasing collaboration between public and private actors to track citizens. So much of our daily activities are mediated by these communications companies, they have the ability to track our every move. The legislation is justified in part by the fact that courts already allow the police access to much of this information. However, the reasoning is problematic. The current trend is to justify it based on user agreements which contain provisions allowing the service providers to turn over the information. This is not right: nobody reads those agreements and the terms are non-negotiable. The options to stay offline and not have a telephone are not real options. Should our constitutional rights really be trumped by provisions inserted into contracts by commercial entities looking to avoid liability?

I largely agree with Professor Austin (and not just because she will be grading my essays). I do think that some legislation is necessary. There is a slight inconsistency in arguing that the legislation is not necessary under current law and also that the current law is wrong (though the two points may not actually be connected in Austin’s argument). I have serious misgivings about the contractual argument that is being used to justify handing over this information. Like every Canadian who has ever signed a cell phone contract, I know the terrible frustration and powerlessness one feels when presented with these contracts. The Charter should not be overcome merely by a corporation inserting a provision allowing the government to violate it. But at the same time, the police do need access in these cases. There merely needs to be limits, oversight, and accountability.

People have fought against national ID cards and mandatory fingerprinting for years. This is no different. Absolutely everything you do online has your IP address or email attached to it, but you can be anonymous because it is generally difficult to connect an individual to those piece of information. Any one of the pieces of subscriber information (name, phone, email, IP, etc) is not very revealing, but the fact that they all represent a single person is extremely revealing. It’s not too much to ask that in the majority of cases where time is not an issue the police should have to go to court to get this information (and then leave a loophole for emergencies).

Loss of jurisdiction is the remedy for delay in privacy cases?

Friday, Feb 5, 2010 12:16 pm
William Barnes

Alberta Teachers’ Association v. Alberta (Information and Privacy Commissioner) continues to bug me. It is a recent decision of the Alberta Court of Appeal that held that if an investigation was not completed within 90 days, the Privacy Commissioner would lose jurisdiction over the case. I can’t help but think that the remedy is inappropriate and that in a different case, the court would have made a completely different decision on the law.

The complainants had alleged the ATA breached their privacy. After a lengthy investigation with numerous delays, the Privacy Commissioner found that the complainants’ privacy had been violated. The ATA applied for judicial review. The Privacy Commissioner’s decision was quashed because he did not comply with s. 50(5) of the Personal Information Protection Act:

50(5) An inquiry into a matter that is the subject of a written request referred to in section 47 must be completed within 90 days from the day that the written request was received by the Commissioner unless the Commissioner
(a) notifies the person who made the written request, the organization concerned and any other person given a copy of the written request that the Commissioner is extending that period, and
(b) provides an anticipated date for the completion of the review [emphasis added]

The Court of Appeal agreed. They held that this provision was intended to “promote inquiry efficiency and the expeditious resolution of privacy claims”. But I don’t think that loss of jurisdiction flows naturally from the provision.

In fact, I think that a completely different legal decision might have been reached under different facts. Let’s imagine a slightly different situation: 18 months have passed and the Commissioner has not conducted an investigation. If the complainant asked for an order compelling the Commissioner to conduct an investigation, would the court have come to the same conclusion regarding jurisdiction? I don’t think so. They probably would have said that the provision protects the complainant’s right to a speedy determination of the case and ordered the Commissioner to investigate in a timely manner.

Section 50(5) can be read as protecting either party—both have an interest in speedy resolution of the matter—but there is nothing in the majority judgment about balancing the interests of the complainants and investigatee in this situation. It was treated as an adjudication of the interests of the Commissioner versus the ATA. In the dissent, Berger J. writes: “Judicial review should not have proceeded without proper notice to the complainants who were denied an opportunity to tender evidence and advance argument.” There were three sides to the matter; only two were heard; and the result is a lack of balance.

Maybe Rupert has a point

Sunday, Nov 29, 2009 12:46 pm
William Barnes

Everybody thinks Rupert Murdoch is crazy for wanting to hide his web properties from Google, but I’ve been thinking: maybe he has a point. Bloggers and podcasters say that Rupert doesn’t understand the Internet; I think they’re probably right but I also think the bloggers and podcasters are too understanding of the Internet. They (we?) put out content for free and whenever something comes along that makes an old media guy like Rupert uncomfortable they just brush it off and laugh: “That’s the Internet for ya.”

Don’t get me wrong, I like Google and I mostly trust Google, but I can see how what they do might be called unfair. When they index websites, they make a copy. Somewhere hidden in an abandoned missile silo (I assume) they have a vast array of computers mirroring the Web. When you search, Google searches these computers and presents you with a link and a little snippet of text from the site. Everybody generally agrees that the little snippet is fair use. But what about that underground data centre? It’s a huge asset for Google and it is made up of content they copied from other people. Think about it this way: if you go to the library, look up a definition for a word and quote it in an essay, that is fair use; but if you go to the library, photocopy the entire dictionary and take it home so you can look stuff up later, what is that? Google takes home the entire library. It’s not the display that is the problem, it’s the process before the display.

But, people say, Google is providing a service. True, but they’re also capitalizing on other people’s work without paying. Further, Google’s copy of a particular website is a valuable asset whether or not Google ever sends traffic to that site. But, they continue, if you want to exclude them, you can just put a robots.txt file on your site. Also true, but if you do that then your site may as well not exist. Google won’t offer to pay to get a single site into their search engine. But, the conclude, this is the way the Internet works now, search engines index and don’t pay to do so. True again, but does it have to work this way? Why shouldn’t search engines pay sites that they index? (I can actually think of a number of extremely practical reasons but for present purposes I’ll pretend I can’t) Just because something works one way now, doesn’t mean we all just have to accept it.

[Added Mon, Nov 30, 2009] My first website went online in 1997. For 12 years, I’ve been ecstatic every time somebody read something I posted. I imagine many bloggers feel the same way. It leads us to disregard a property right that we have. When Rupert comes along with his old media view, he’s shocked. We’re all just giving Google our content; Google is making money from it and giving us nothing in return. Back in his day, people wouldn’t have stood for it and he’s not going to stand for it now. Google provides a commercial service on the back of what may be massive copyright infringement, it’s something worth thinking about.

In trying to figure out where the value comes from, ask yourself this question: who would last longer, Google without content, or content without Google?

Ownership in the digital world

Friday, Oct 9, 2009 1:07 pm
William Barnes

My latest IP Osgoode post is up. In it I discuss the difference between what consumers expect when they buy digital content or a network connected device and reality. This post expands and clarifies that article.

Most people, I believe, think of all their physical possessions similarly. There is no difference between a couch and a novel as far as ownership goes. The incidents of ownership are the same: you possess the object; nobody can take it from you without permission; you can dispose of it as you please. There is, however, one significant difference between the two: the novel is a copy of a work in which the author retains rights. But physics isolates the consumer from this fact. They have a single copy and will probably never have more than a single copy. If they sell that copy, then they lose it at the very instant another person gains it. As long as the consumer treats the book as an ordinary possession, they will never have to think about IP rights. For most practical purposes, therefore, all physical possessions can be treated the same.

With digital content, however, all this changes. Rather than being given a physical object, consumers are granted a license to use the work in certain ways. This license will, at the very least, allow the consumer to possess and access copies of the work for personal enjoyment. Note that I said copies in plural. With a physical object, the owner has a single copy. The fact that they own a copy of Cryptonomicon (great book) does not give them the right to possess just any copy; it has to be that specific one. With digital content, however, you can have as many copies of the work as you want. In fact, if you buy a song from iTunes you will be told that it is your responsibility to make copies. And it shouldn’t matter where your copy comes from. If Alice and Bob both buy a song from iTunes and Bob’s hard drive crashes, then Bob should be able to just obtain a copy from Alice (at least in theory). In a real life example, if a user deletes a book from an Amazon Kindle (or lose the device), Amazon will let them download a new copy for free. This doesn’t happen with hardcover books; Bob can’t photocopy Alice’s copy of Cryptonomicon and Chapters won’t give him a new copy for less than the cover price.

In this fashion, licensing sounds pretty good. But it can give rise to strange circumstances that dealing in the physical world would not lead one to expect. Last month, Amazon remotely deleted two books from Kindle e-book readers when they learned that they did not have the right to sell the book. It sounds weird but consumers who purchased the book from Amazon didn’t purchase anything and Amazon did not take anything from them when they deleted the book; Amazon can’t give what they don’t have. Nobody would expect an employee from Chapters to come to their house and take back a hardcover book if it turned out to be counterfeit. There’s the practical difficulties, of course, but there’s also a physical item which the consumer owns. The consumer would be well within their rights to refuse to hand it over. In the case of an e-book, however, there is no interest in anything other than the license. The consumer may have other causes to complain, but they cannot claim that they had any right to keep their copy of the e-book.

The Amazon issue leads us away from ownership of digital content and into a related (and even more problematic) issue: ownership of network-connected devices. Unlike an MP3 or an e-book, the Kindle is an actual physical thing. Traditionally, consumers don’t expect manufacturers to interfere with their physical possessions after sale. Connected devices, however, routinely phone home for updates and content. This is very valuable behaviour but it isn’t always used to enhance the device. It can be used, for example, to remove the ability to skip commercials from a PVR; to block websites on a smartphone; or delete books from a Kindle. What this means is that, for better or for worse, the device someone buys is not in their own control. Why would a company want to downgrade a device? I think the best reason is to avoid liability. They have sold a device (or, in Amazon’s case, content) that has a defect of some kind and don’t want to be sued. The problem with this is that it shifts the burden of the company’s mistakes onto its customers. Amazon could have refused to delete the books but they would have been sued. Instead, they saved themselves by depriving others—although they did refund the purchase price.

That said, I don’t think that forbidding such practices is the way to go. It could very easily end up banning a lot that is useful about network-connected devices. I also think that over time an etiquette will develop over when such action is permissible and what compensation is required. Partially this will be regulatory, but the market will help define what people are willing to put up with. And I actually think that in Amazon’s case, it is defensible. If Alice sells Bob a stolen car, Bob can’t reasonably expect to keep it. Likewise with the example I used in my article of a defective reclining chair. It’s better to lose a function than a leg. Maybe companies should have to offer to buy back devices that they downgrade or offer a reasonable monetary payment.

I don’t think that we should try to force new forms of property into awkward physical molds (the music industry tried that with DRM and look where it got them). A balance has to be struck between the surety of the old ways and the flexibility of the new.

In defense of the white pages

Sunday, Sep 27, 2009 9:05 pm
William Barnes

I apologize if this is hopelessly I-just-read-CCH of me. No doubt it’s all been said before, but when has that stopped me?

Copyright only protects “original works”. But original work, it turns out, is a tricky concept to define. On the one hand, you might say that original simply means “not copied”. This would give rights to anybody who puts effort into creating something. On the other hand, you could require a little bit of novelty or creativity. In CCH, the Supreme Court of Canada set out a (possibly) different originality standard that required more than mere effort, but not actual creativity. This standard requires that a work be the product of “skill and judgement”. A lot has been said about that judgement, but I think that I have discovered the truth behind it: people don’t like phonebooks.

Whenever a person talks about the difference between the sweat-of-the-brow (effort/UK) standard and the creativity (US) standard, they always boil it down to that one thing—the UK standard protects phonebooks. And when originality is discussed in class, students always include the disclaimer “of course, I don’t believe phonebooks should be copyrightable”. Why all this hostility? There must have been a wave of heavy-phonebook-fell-on-my-toe incidents in the pasts of most lawyers. Their first tort.

Seriously, though, why is it that people are so sure that phonebooks shouldn’t be copyrightable? They provide valuable information. They might even take quite a bit of effort to put together. Should someone be able to just photocopy the thing and sell it? OK, I admit that phonebooks are free, but imagine another completely non-creative collection of facts that someone would be willing to pay for. There’s no incentive to create such a thing if you have no rights at all and that is what all this talk of originality seems to say. I’m just not sure it makes sense to deny copyright at the point of originality—except on the broadest definition of the term. There must be some way that the phonebook author can have the bare minimum protection. This would prevent him from being so directly undercut and ensure that any copier would produce a slightly different phonebook. In this scenario, the public would even have two different versions to choose from. Everybody wins.

I’m still working this out in my mind, but I think there are other concepts in copyright that can do the work that originality does in North America.

Software Patents ~= Literary Patents?

Sunday, Sep 13, 2009 9:00 am
William Barnes

Stuart Freen posted a reply on IPilogue to a Cato Institute article claiming that software patents are analogous to literary patents. I thought I agreed with Stu, but I’m not so sure.

A story has words, literary devices and a plot. A computer program has variables, control structures and algorithms. Literary devices/control structures manipulate words/variables in accordance with the plot/algorithm. There are multiple ways of expressing any plot or algorithm. So you have two things of value: the expression and… I’m having trouble thinking of a good word. Function is too slanted towards programming. But there is something purposive shared by programs and stories. Just like you (probably) wouldn’t run a program that does nothing, you (probably) wouldn’t read a story where nothing happened.

What does the plot of a story do? It holds the readers interest. I may be a weird case, but I seldom appreciate the writing in a book. People tell me how they love the descriptiveness in a certain author’s writing, but when I read it I never notice. I tend to skim the adjectives because I want to know what happens. I don’t care how beautifully George R. R. Martin describes the landscapes of Westeros, I just want to know what happens to Neddard. I would probably find a much more poorly written book that hit all the same plot points to be just as satisfying.

So the argument goes: if you allow a programmer to patent a certain algorithm that solves a computer problem (e.g., compressing a video file) why not allow a writer to patent a certain plot that solves a—the—literary problem (e.g., making the story compelling). I’m characterizing the problem solved by a particular combination of plot points by their effect on the reader. So I imagine the purpose of a literary patent to be a method of sustaining reader interest rather than, for example, a method for explaining how the thief got into the locked room. Stu separates the literary value as being about expression while the computer is about function, but I accidentally convinced myself that both kinds of value are present in either medium.

This doesn’t mean that I don’t agree with his conclusion. The fact that we don’t allow literary patents does not mean we have to disallow software patents for consistency’s sake (I’m stating the Cato article’s point much more plainly than I think the author does). We could just accept it as inconsistency and say that we just don’t want to patent stories. Sorry authors, you’ll just have to live with copyright. But let’s say we do want to entertain the notion of a literary patent analogous to a software patent. The software patent is easy: you express an algorithm in abstract terms and say what it does—find out if a number is odd by dividing by two and seeing if you get a fraction. Somebody could follow that abstract and create a function of equal value (though expressed in different form perhaps). But what would the abstract terms in a literary patent look like? It couldn’t be anything as general as “two star-crossed lovers meet and get secretly married and then commit suicide”. That description wouldn’t allow another person to write a story that has the same effect on the reader as Romeo and Juliet. For that, we would need a description of incredible detail. And if a story infringes at that level of detail, I think copyright would be comfortable handling it (I’ll have to ask my IP prof on Tuesday). And I’m not even getting into a discussion of obviousness or prior art. Therefore, I think we can safely say either that we don’t want literary patents for some reason of cultural values or because they would be impractical and useless.

I hope all that made sense. It was somewhat stream of consciousness (hey, that’s a literary device). I need to start editing these blog posts. By the way, none of this is to say that I’m completely in favour of software patents. It’s one thing to patent a compression algorithm and another to patent a user interface element or simple method (Amazon 1-Click comes to mind).

Annoying Domain Dispute

Sunday, Aug 2, 2009 4:10 pm
William Barnes

I really don’t like the outcome of this (old) case: Freddy Adu v. Frank Fushille. The complainant is some kind of soccer player or something. The respondent is a fan. The respondent registered a domain with the intent of starting a fan site. At some point, he contacted the soccer player’s manager and said he was making a fan site and was wondering if it could be the official site (presumably, the soccer player didn’t have an official site at that time). The manager sent back an offer to buy the domain. The guy didn’t want to just sell the domain though, he wanted to run the site. So they got into a discussion over that. Apparently, the respondent got carried away during negotiations and they fell through. The manager then files to have the domain transferred, using the negotiations as evidence of bad faith registration.

That’s just wrong.

Everybody has a price. If I were running an unofficial fansite for a celebrity and the celebrity offered me a million dollars for the domain I would probably take it. The celebrity should not be able to then turn around and say: ‘Aha! Bad faith!’. Negotiations initiated by the complainant shouldn’t be evidence of registration for the purpose of sale.

The Commons

Friday, Jul 17, 2009 7:51 am
William Barnes

I just wanted to add something to my recent post on copyright on 200 year old paintings. The reasoning behind copyright is that giving a time-limited monopoly encourages people to create new things. And why do we care that people create things? Because after the time limit is up those creations enter the commons and become the property of everybody (and I ignore the contentiousness of that phrase). People understand the monopoly bit, but rarely the commons bit.

What bothers me is that museums are given works of art for safekeeping. They control access to the physical items and (in the interests of preventing damage perhaps) restrict the ability of people to take copies (flash photographs, for example). Eventually, these items are supposed to pass into the commons. But what good is a work in the commons if nobody can get a copy of it?

It’s really difficult to work out what’s right and wrong here in any general way. I don’t think we want to impose a duty to provide the public with copies of work in the commons. And I’m not sure we want to take away economic incentives to reproduce such works. It can be very expensive to restore and reproduce art. Maybe laws need to be made that address the reproduction of privately held commons works. Then again, the practical difficulties of providing copyright protection to copies of commons materials could be prohibitive. Eventually, those digital copies will themselves enter the commons. Does the first person to copy them at that point receive a copyright interest? And how do we manage the fact that dozens of people may own copyright in what is essentially the same thing?

In the case of museums it’s simpler than with private owners. Museums exist for the purpose of protecting and sharing cultural knowledge. They receive public funding, tax benefits, and physical possession of the works based on this. They should not be removing works from the commons. I’m not saying the museums are evil. They are, of course, constrained by financial considerations. They are underfunded and need to take advantage of everything they have. I’m just saying that something is wrong and needs to be fixed.