Twisted logic

October 22, 2008

From the stranger than fiction department:

  • Microsoft decides that the middle of a financial melt-down is a good time to punish Chinese users of unlicensed copies of Windows by turning on some really annoying spy-ware.
  • The folks who use the unlicensed software react virulently to Redmond’s latest (and long-predicted) move in their Quixotic crusade against piracy.

I hope some Linux evangelist somewhere is capitalizing on this opportunity.

I was working on a short article this morning that looks at some of the recent global governance conflicts over Access to Knowledge when I realized that it’s been a while since I’ve heard of new developments in the Anti-Counterfeiting Trade Agreement (ACTA) negotiations.

Ever since Senators Pat Leahy (D, VT) and Arlen Specter (R, PA) voiced their concerns to the USTR and the Australian Department of Foreign Affairs and Trade let on that the future of the agreement might be at risk, my RSS feeds and email lists appear to have gone silent on the issue.

Even the USTR has not had anything to say since this October 10 statement (pdf) issued immediately following the Civil Enforcement negotiations meeting.

The best theory I can come up with (absent any evidence whatsoever) is that the trade representatives and negotiators have been a little busy lately dealing with the trade-related complications of the global financial crisis.

Anybody out there know what the USTR’s been up to these days or have new information about ACTA?

Okay, so I´m only six or seven months behind on this one…

it´s still funny

(hat tip: Sérgio Amadeu)

Andrea Foster filed a story with The Chronicle of Higher Education that should send a chill down students’ spines everywhere.

As if the recent spike in bogus copyright infringement lawsuits gushing out of the RIAA and MPAA wasn’t enough, it looks like these organizations are taking their fight to state legislators. Here’s the story’s lede:

Higher-education officials say that the entertainment industry is pushing for state laws that would force colleges to police their networks for illegal trading of music and video files and to buy software to stem the problem.

Lawmakers in Tennessee and Illinois recently considered such legislation, and a similar bill may be brewing in California, according to officials who spoke at a technology-policy conference here on Thursday.

To be honest, I’m kind of surprised they haven’t tried something like this in California already – after all, the RIAA and MPAA practically own L.A….

Foster continues:

There is no legislation in California to deter file sharing on college campuses. But Kent Wada, director of information-technology strategic policy at the University of California at Los Angeles, told the technology officials at the conference Thursday that there was an “informational hearing” in the State Capitol in March to discuss the issue. Among those speaking at the meeting was Mitch Glazier, senior vice president of government relations and industry relations for the RIAA

My favorite quote comes from an earlier story in The Chronicle for Higher Ed., in which Foster interviews Cary Sherman, president of the RIAA, about the recent jump in aggressive lawsuits filed by his organization against alleged copyright infringers. Check out this gem:

“There’s just no connection to anything that’s happening in Congress, in the courts, or anything else,” Mr. Sherman said. He added that the increase in notifications did not mean that there had been a sudden rise in campus piracy. “We’re constantly asking our vendor to improve performance,” of its software that scans for copyright violations online, Mr. Sherman said. “They just completed work on an upgrade and, poof, it just happened.”

Did he actually say that with a straight face? Does anyone believe this joker?

If anybody else out there has a stake in a California educational institution, this might be a good time to contact your local administrators, legislators, etc. California has better things to do with its time and (empty) state coffers than play toy cop for the culture industry.

In the case of UC Berkeley, the University’s Chief Information Officer is Shel Waggener. Shel is quite a brilliant guy who is almost certainly already aware of this issue and probably already working on it. I think I might send him a quick email, though, just to be sure…

Illegally reproduced DVD\'s (photo by Huong-Lan via flickr CC-BY)

William Patry had an engaging (albeit esoteric) post a couple of days ago in which he examines a recent federal appeals court ruling about pirated DVD sales.

From what I understand, it looks like the court (circuitously) ruled against the idea that the “relevant retail value” of an unlicensed copy corresponds to the value on any market – including a black market. Patry argues that the logic of the decision is kind of tortured and long-winded given that the court eventually agreed with the earlier decision that had penalized the defendant on the basis of the manufacturer’s retail value of the goods (not the black market wholesale price he actually sold them for).

All the legalese aside, the text of the decision raises a really interesting question that usually flies under the radar of policy debates on unlicensed reproductions of copyrighted works.

In light of the fact that copyright grants licensors the ability to hold a temporary monopoly over informational goods, what constitutes a reasonable price for non-rival goods?

I suspect that courts and politicians accept manufacturer’s suggested retail prices for a whole host of reasons (simplicity, kickbacks, convenience, etc.), but it seems like there’s a case to be made for an alternative calculation based on aggregate market prices (including informal, or “black” markets).

In my experience, informal market prices (especially for things like software and DVD’s) often provide a more accurate picture of what people can and are actually willing to pay for informational goods.

The real pirates?

April 27, 2008

Today’s Guardian has an interesting piece on Somali pirates (the ones that use boats and guns). Although the story gets off to a slightly melodramatic start, it eventually reveals a fascinating bit of legal reality that makes the actions of the “pirates” slightly less nefarious: turns out, they are providing an unauthorized policing service to their country:

as bizarre as it sounds, there is some truth in the pirates’ claim that they are acting as a coastguard. Under international law, a country’s ‘exclusive economic zone’ – where it has sole rights over marine and mineral resources – extends 200 nautical miles out to sea. Foreign ships are allowed to pass through these waters, but not to fish without a permit.

Yet at any one time there are up to 500 foreign-registered boats fishing in Somalia’s rich waters, according to the Seafarers’ Assistance Programme. European boats catch tuna or shrimp; vessels from the Far East catch sharks for their fins. Almost all are fishing illegally. Often, pirate attacks are not even reported to maritime authorities: the ransoms paid are regarded as legitimate fines, both by the pirates and the ship-owners.

Sure these guys use unjustifiably violent means to extract rents from their targets/victims, but it’s still important to recognize that their actions are not inherently “evil” or beyond the law. In the absence of an effective state infrastructure of legal enforcement, you might think of the “pirates” as a somewhat undesirable variety of entrepreneur. Like the author says, all of the parties involved regard the fines as legitimate.

On a related note, it never ceases to amaze me that trademark, copyright, and patent owners have managed to convince much of the world that unauthorized copying of informational goods is equivalent to material forms of piracy, such as those practiced by these folks in Somalia. The metaphor is deeply flawed for a number of reasons, but most importantly because informational or intangible goods posses fundamental differences from tangible goods.

It is one of the tragedies of recent political and industrial history that many countries have been stuck with legal systems that do not recognize this difference. As a result, private companies and government officials have begun to treat unauthorized information reproduction as just another form of theft. The beauty of informational goods is that they make sharing possible on a global scale.
Thus, they provide a great opportunity to re-think the legal, economic and moral institutions that have structured modern commerce and industry. If nobody pushes back against the vision currently promoted by many trademark, copyright, and patent-dependent firms, we’ll lose this chance.