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).

IPilogue

Thursday, Apr 2, 2009 10:26 pm
William Barnes

IPilogue is Osgoode Hall Law School’s student run IP blog. They run a short article on a topic in IP almost every day. A few weeks ago, I noticed a posting on the website calling for editors. I saw that the job description didn’t specifically say “You must be an Osgoode student”, so I sent an email asking if they would accept an application from me. Turns out they would. Then it turned out that they accepted me as an editor. Pretty cool.

I had my very first meeting today. I was rather nervous at the beginning, being the only non-Osgoode student. But after that wore off, it went pretty well. After I introduced myself as being a first year from UofT, two of the people who came after introduced themselves as being from Osgoode. I don’t know whether to read anything into that. Everybody seems very nice. I wish I could have stayed a bit longer to meet some of the people who stayed behind, but I had to run to start my three hour journey home. Next time I have to go to Osgoode, I drive.

In related news: what kind of a word is “cybercrime”? It sounds like what RoboCop would fight. Or some kind of scary title for a Dateline episode: “You could be a victim of Cybercrime.” Computer crime has too many syllables. I suppose cybercrime is catchy, but something about the word just makes me feel uncomfortable. Maybe it’s a geek thing. I’m too used to cringing whenever a non-tech tries to talk about computers or the internet. And I’ve just come to associate the prefix “cyber” with non-techies. Wow. I learned something about myself. Justice McLachlin (as she then was) was right: expression can be a tool for self-realization.