Like everyone else, I received my copy of the first discussion draft of GPL v3 some hours ago. Jesus, I must say. It is too early to go into the details but just look at these numbers:
GPLv2 has 2965 words and is generally considered to include ambiguous language. GPLv3 (this draft) has 4569 words meaning over 50% increase in length. To compare, Microsoft Community License has just 561 words and that license is in my humble opinion the clearest copyleft license ever.
While the draft tries to clear old ambiguities, it also succeeds in introducing new unclear concepts and language (in the middle of few odd typos). For example, “propagate” seems to replace “use” but a quick reading makes me feel like it means something more. Further, the old license used rather consistently term “Program” but this one adds “covered work” in the mix. Then there is a new concept called “subunit” – in addition to the old “components” and “parts”. Why must they use so many terms? And – unfortunately reminding me of the Artistic license – in the section titled “compatibility” the draft gives 5 new additional options anyone can add for a “compatible” license distributed within a GPL package… (clear? – not. legal risks? – yes)
I didn’t go into the basic language yet, which seems to favor the use of exceptions and negations…. take this passage as an example: “DRM is fundamentally incompatible with the purpose of the GPL, which is to protect users’ freedom; therefore, the GPL ensures that the software it covers will neither be subject to, nor subject other works to, digital restrictions from which escape is forbidden.” – The beginning of that sentence looks understandable but what the hell are they meaning with the rest. What is DRM that allows “escape” to begin with (since that seems to be ok)?
In short, the draft looks like a GPLv2 mixed with GPL-FAQ. It tries to give something to everyone without being clear, short and consistent. It’s not the good old statement written by Stallman. This one is a messy open source hack in need of serious revisions – starting from the language.
I started to first think about the theory of group polarization. According to Lessig, a victory for copyright owners would be “the biggest landgrab in the history of the Internet” and “chill a wide range of innovation”. According to book authors and publishers, Google engages in “massive copyright infringement” which results in “napsterization” of the publishing industry. They fear a win for Google would give an unintended sign for Internet-companies with “who knows what result in the future”. And so on…
Both lines of argument are of course worth to think through. They are, however, based on unfitting analogies and special-interest politics (copyright owners v. copyright users) gone into extremes.
Thus, I propose a more analytical approach. I’d ask, for example, the following questions:
1. Does copyright cover format? From “right maximizer” perspective it would appear so. Author’s guild and prior mp3.com case basically say that if you are a business user, you are not allowed to rip books or CDs to your database. Reason: copying to other than private use. Thus for example Gramex (collecting society for record labels) in Finland wants money from DJs who play music from iPods instead of CDs or LPs. Just 30 CDs meaning c. 300 tracks costs 200 eur / year… I think this is economically unsound (no effect to markets) and is based on formal legal reading of the law. If Google’s case will be decided on this ground – which I think is indeed highly probable – the whole affair will have no impact whatsoever to anything. The public policy sucks but what can you do.
2. Does fair use / citation right cover a case where a firm advertises with “fair” clips on the Internet? Now the question is not about users who take citations from books themselves (traditional meaning of a “citation”). This is about a company advertising a product with a random “clip-right”. Well… I think an economically justified fair use right should cover reasonable ad citations. Good clips only increase sales so it’s a win-win for everyone. However, some time ago was it Danish supreme court which decided 30 sec clips on an Internet music retailer’s website are not fair use. In Finland, Gramex seems to sell licenses to such purposes. Max length being 30 sec 100 discs (10000 tracks) would cost you 10000 eur / every 3 months. Quite a lot. And the same thing to Teosto (collecting society for composers) I suppose. So again Google’s position is economically sound but legally somewhat in the gray area…
3. Does copyright cover a case where a firm builds a huge database of copyrighted content and then makes business by giving Internet users clips of that stuff – with a careful reading of the limits of fair use rights? From policy perspective this one comes close to Grokster – which, by the way, I think was a good decision from economic perspective. If you think Grokster from bottom up sure it sounded “ok”. They don’t control the network, they just make the tech, etc. But the big thing was that there was a company profiting from a gray area in copyright law. Now I’m not against Google as a company. But in this particular case I think a Gokster-analogy is perhaps the real public policy nail in their coffin. Google Print must fail and my only hope is that the decisive argument will be this one.
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Overall, I think the real problem in Google Print is copyright’s term. Fair use has nothing to do with copyright’s term. We have an enormous back catalogue of all kinds of out-of-print works with no publisher interest to republishing. It makes sound economic policy to allow Google and others to put that stuff in the pipeline right now. However, at the same time when we would legalize abandonware, Google and others should not have any right to scan every new bestseller without a contract (or blanket license) to benefit their business. It simply makes no sense unless you fundamentally denounce the economic logic of copyright law.
Ok, my 5 cents to the ongoing Sony bashing. It is found that their “rootkit” crap not only fucks your system up but also infringes copyright. Unless the developers have been bought out, which I suspect is impossible, someone should advice the class-action-sharks in the US law firms to add statutory copyright infringement claims in their cases. Of course Sony can surrender the sources and thus fix any possible “irreparable harm” but I don’t think they can avoid basic infringement payments since they have already profited from a product based on the copyright of others. Meanwhile, the only viable option seems to be this russian retailer if you need quality music files without DRM-insults.
I wrote today a critical opinion piece to a local intellectual property lawyers magazine about the academic IP studies in Finland. The Finnish Academy funded seven university projects during 2001-2004. Yesterday the academy held a seminar where every project gave a presentation about what they had achieved. Practising lawyers – from a legislation drafter to patent attorney and corporate counsel – gave comments.
What I sensed was confusing. Just one of the projects wasn’t clearly politically hostile towards IPRs. Others had a bunch of critical views. Every argument type was used from economic theory (IPRs are inefficient) and developing nations (they need to free-ride) to human rights (freedom of speech etc.) and competition policy (IPRs are anti-competitive, of course).
Those practising the art didn’t buy the arguments at all. Many gave extremely critical comments. Are your policy recommendations just academic day-dreams, which can’t be implemented ever? Are you guys just following some fashionable international scholarly trends? Why don’t see the picture from corporate perspective? (Well, here is one possible answer)
I had to agree with those who delivered the critique. The researchers are wrong if they don’t answer to the needs of the Finnish industry and economy at large.
As a former “activist” of sorts I understand that it is relevant to bring dissending opinions into public policy discussions. Five years ago there didn’t really exist IPR policy discussion in Finland. But today the picture is different. We just had a 200-300 people demonstrating against the recent copyright law amendment. In this situation, I don’t think that every IP scholar in Finland should study IPRs from normative perspective. They have nothing to add. Moreover, there are many philosophers, social scientists etc. who are now studying IPRs as well and can perhaps bring some new insights into the public policy stuff. No one could do that yesterday.
I think IP scholars should start cooperating with the Finnish technology and media companies to bring their research agendas and goals more in line with the needs of the Finnish economy. I’ve been doing just that for over five years now. Forget repeating Lessig and his pals, they’re being heard everywhere by now. Go figure something original and useful.
Ok, something else in the mid of all that running crap.
First, the next morning we’ll meet Helsinki city’s IT chief. On the table is the idea that the city would support / fund a municipal wifi initiative. I’ve heard the guys here are not that supportive to the idea but we’ll see… I hope there will be at least some sort of study of wifi’s possibilities.
Second, I noticed that the local TV news finally found out that the EU is proposing that car registration taxes should be zero. As someone who has imported two cars with crazy 100-150% import taxes I really love the idea. Finnish tax policy has been in this regard unsound, based on the 1970s principles of local transport industry protection without taking into account neither the EU economic policy (free movement of goods & people) or environmental policy for that matter. Maybe I should try to publish some sort of critical primer for the Finnish “tax professionals” about the whole tragedy.