The laws that protect the creation of content are manifold and complicated—even byzantine. America has copyright protection, which applies to concrete expressions of information, trademark protection, which protects distinctive symbols or verbiage associated with a legal entity, and patent protection, which protects “(1) processes, (2) machines, (3) manufactures or (4) compositions of matter” and is perhaps the least understood of all the various kinds of intellectual property protection (Guntersdorfer, 2003).

The explosion of the Internet in the late 20th and early 21st centuries has thrown into stark relief both the legal problems associated with protecting content in a digital age as well as the ethical issues inherent in the existing process for acquiring official intellectual property protection and the rights afforded involved parties in a redress of grievances. Copyright law specifically has come into public consciousness primarily due to the popularity of filesharing: for all intents and purposes, the advent of modern filesharing was the 1999 arrival of Napster, a program which allowed anyone to exchange digital copies of music online, for free. Legal problems eventually forced Napster to shut down (Ante, Brull, Herman , & France, 2000), but its legacy leaves not only alternative modes of filesharing, but a whole host of new web-based content creation engines that toe the lines of fair use.

The politics of copyright is, despite its complexity, relatively straightforward and beyond the purview of this writing. More relevant to the machinations of the world of business are patents, which tend to pertain to the inventions and processes that drive economic engines. While some companies, such as Coca-Cola, eschew the legal—albeit ephemeral—benefit of patents in favor of strict secrecy, the legal mechanism is still quite popular: the United States Patent Office grants between 175,000 and 195,000 patents every year (“U.S. Patent Statistics,” 2009).

Ideally, patent mechanisms act as a function of market efficiency: by protecting corporate or industrial investment in Research & Development, it promotes economic growth, protects ingenuity, and rewards success; most patent law even allows for the eventual “freeing” of the patent after set duration—now usually twenty years (Heisey, King, Rubenstein, & Shoemaker, 2006, pp. iii-v, 4-7). What has come to pass since the 1970s, however, is a new scope of invention—specifically, computer software—that the existing patent protection mechanism is ill-equipped to handle. The critical question this raises is such: to what extent can the granting of patents for software be considered ethical? Conversely, if this is not the case, to what degree is it unethical or antithetical to proposed ideas of market efficiency?

It is vital to illustrate the very important distinctions between copyright and patent when it comes to computer software. Programs consist of written code (called “source code”), usually in a high-level programming language, which is at least partially intelligible to a human reader: this code, like any other written work, is subject to copyright. When portions of the source code to Microsoft’s Windows® Operating System were stolen and distributed on the Internet (Lemos, 2004), the case was one of unauthorized distribution of copyrighted content, on par with selling bootlegged DVDs. All source code must eventually be “compiled” to create the usable form of software that can be run on personal computers; the compilation process turns source code into a series of 1′s and 0′s, which the computer uses to runs billions of mathematical operations per second. Abstractions aside, all computer programs are little more than large lists of math problems which produce a desired result. Software patents are, at heart, an attempt to gain a “monopoly” on this math (Guntersdorfer, 2003).

“Many politicians [...] don’t understand what software patents do. They often think patents are similar to copyright law [...], which is not the case,” writes noted open source software1 advocate Richard Stallman (2005). He proposes a hypothetical scenario wherein literary concepts can and are patented, and Victor Hugo is unable to write Les Misérables because some lucky entity has acquired a patent for “a communication process that represents, in the mind of a reader, the concept of a character who has been in jail for a long time and subsequently changes his name.” There exist, he insists, patents for such simple things as a progress bar, or accepting online payments via credit card.

To such opponents of software patents, the very nature of patents is inherently unethical in this area of creative content: rather than protect the ingenuity and effort of intellectual investors (so to speak), it rewards those who seek to manipulate the legal system in order to monopolize generic or overly-broad concepts.

In order to examine the ethical ramifications of patents, some working ethical precepts must be established. Specifically:

1. Economic efficiency is an ethical good insofar as it contributes broadly to the public welfare, within normative moral constraints (Schultz, 2001, pp. 12-14).
2. Intellectual investment, in the form of corporate research and development or personal ingenuity, can and should be rewarded with an as-yet unspecified right to profit from said effort. This, besides being an ethical good in and of itself, directly contributes to principle #1 (“Are Efforts”, 2001).
3. The right to personal property, including intellectual property within reasonable bounds, is unambiguous and unabridged.

In addition to the aforementioned points, several more may be offered which are relevant to the discussion of computer software:

4. The labor efficiency offered by computer software (as well as its attendant effect upon the overall economic good), may be assumed of equal importance to the economic good of content creators—i.e. interoperability, work efficiency, and accessibility of data is at least as important as the right of technologists to individually profit (Lenk, Hoppe, & Adorno, 2007, pp. 91-92).
5. The unencumbered public availability of processes or information previously under patent protection,whether by design (read: open source software or open specification) or expiration of patent), is considered an unambiguous public good (“Are Efforts”, 2001).
6. Patents which are overly broad—including those which infringe prior art—have an unnecessarily depressive effect upon both technological progress and the economy as a whole.

As Bessen and Meurer (2008) note, patent litigation has rapidly outpaced other business-related litigation since the 1980s, second only to copyright litigation, and that mostly due to more or less legitimate claims of filesharing-related infringement (p. 127).

Whether software patents are helpful or ethical at all is more to the point. Allison, Mann, & Dunn (2007) quote principal witnesses at a 1994 patent hearing: “Software should not be patented, not because it is difficult to do so, but because it is wrong to do so”; “[t]here is absolutely no evidence whatsoever, not a single iota, that software patents have promoted or will promote progress” (1581). The authors conclude that policy debate now shies away from the common idea that the patent system is broken and unfair: the hue and cry, especially from software companies who ostensibly rely on patents, is to require a technical contribution—that is, implementation aside from a theoretical business method (1621-22).

Early patent law recognized that software seemed inherently unpatentable because it was little more than structured math (Guntersdorfer, 2003; Klemens, 2006, p. 4); mathematical formulae, were they to be subject to such “protection,” would be prohibitive to innovation and damage the public good. Mathematics, fundamentally, isn’t subject to ownership any more than other means of describing reality, such as physics or chemistry. Because software patents can describe not simply a method for obtaining a result, but the very idea of obtaining that result—for instance, Stallman’s example of the patent for credit card payment, irrespective of the code used to construct the process—they have ceased to reward innovation and instead hamper technological progress, deny certain freedoms (to those, like Stallman, who aspire to such principles in software), and have a necessarily depressive effect upon economies and livelihoods, in contravention of principle #6.

Klemens (2006) points out that the very worst patents are often cited as an argument against the ethicality of all software patents: his favorite example is a patent granted in 2002 for three short lines of JavaScript code, a language available for use since 1995 (p. 2). It would be unfair, however, to judge all software patents, or the patentability of software, based upon a portfolio of errors by the United State Patent and Trademark Office. Is there any ethical good that may be derived from software patents broadly?

It is necessary at this point to consider principle #4, which weighs the ambiguous claim of programmers or businesses upon a technology or technological idea against the immeasurable claim of other businesses and the consuming public to interoperability. This piece is being written in a file format called Open Document Format (compare to Microsoft’s “OLE2″ format, used in its popular productivity suite, reflected in “.doc” and “xls” files), in a free program called OpenOffice.org. This program also has the ability to open, edit, or create documents in Microsoft’s proprietary format; were OpenOffice.org not under the protection of the large software vendor Sun Microsystems, it is likely that the developers of the program would be sued for patent infringement, since Microsoft has a number of patents which ostensibly pertain to the OLE2 document format.

The chilling effect that such a legal situation has upon development of third party programs which can interoperate with Microsoft’s file format is well-known in software development circles. It effectively means that Microsoft is remunerated twice: one stream of revenue comes from the sale of its productivity suite (the quality of which directly affected the ubiquity—and market force—of OLE2 files), and the other—due to patents upon the data structures of OLE2—from companies which choose to license the specification rather than risk legal battles.

There is little question that Microsoft deserves the first stream of revenue, which is related to a copyrighted product (a “physical” good) that it sells; that some portion of the sales may have to do with the ubiquity (read: business necessity) of its file format is aside from the point. The fact that the company’s patents effectively prohibit competition by making interoperability cost-inefficient is, while a net economic good for Microsoft, an ethical downfall for everyone else. Lawrence Lessig, a well-known proponent of more “open” practices pertaining to intellectual property, insists that although official case law has yet to demonstrate the validity of the previous statement as measured by favorable judgements, common sense and observation indicate that these kinds of patents primarily serve as a way to keep “early innovators” safe from later, third-party progress (Babcock, 2005).

Assuming some unquantified validity to Microsoft’s patents upon its OLE2 format, how does that compare to a public need for unfettered access to interact with that format? Rawls argues unequivocally that justice “does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many” (1999, p. 3). In the tradition of Omelas, so Rawl’s sense of justice is inflexible (or so he supposes) when it comes to the inalienable rights due every man. Interoperability and the public good, Rawls may argue, are important, but should never be sacrificed if the right of the programmer/inventor to profit from his intellectual labors is to be infringed.

The hypothetical dystopia described has no boundaries: it is essentially a view of a communistic system in which the right to personal property is negated in favor of public benefit from shared resources. Though a different argument entirely, such systems have failed to produce thriving communities achieving a critical mass in the lengths to which it will go to redistribute wealth. However, the argument against software patents is not, at heart, a call for intellectual property to be redistributed to bolster a common good. Even if the dense calculus of utilitarianism was shown to be unarguably true, no ethical principle mandating the forcible forfeiture of IP is likely to be justified by any mainstream ethicists. The argument against software patents is that they do not represent intellectual property at all, but rather a manipulation of the legal system to achieve particular economic ends; it is possible, since the criteria do not require implementation, to patent software which hasn’t been written (Klemens, 2006, pp. 3-5).

The question initially posed was the degree to which patents are ethical or unethical. Assuming that Rawls’ theory of justice as morally paramount—as embodied in principle #3—is significantly correct, and understanding the particular vagaries of software and its algorithmic nature, certain conclusions may be drawn.

First, existing copyright laws do well to cover a content creator’s claim to his or her labor; these laws cover—and are perfectly sufficient for—the assertion of ownership over computer programs, which are themselves physical expressions/implementations of content. In this way, the right to personal property, intellectual or otherwise, is unabridged.
Second, the application of this principle into software written under the auspices of business allows proper remuneration for investment, and contributes to overall economic efficiency and therefore a public, moral good.

Third, within this ecosystem of software, patents are extraneous, serving no apparent purpose other than artificially extending the existing copyright protection to cover content which has not been written, cannot be written, or can be written in different ways (and properly so).

Unambiguously, then, software patents are unethical, serving to abridge the rights of content creators to implement general principles in software code, to enter into competition with existing market constituents and improve the market, and to raise the overall quality of the software ecosystem—and, by extension, allow the public benefit from these improvements.

References

• Allison, J. R., Mann, R. J., & Dunn, A. (2007). Software Patents, Incumbents, and Entry [Electronic version]. Texas Law Review, 85(7), 1579-1625. From Business Source Elite (25978301).
• Ante, S. E., Brull, S. V., Herman, D. K., & France, M. (2000, August 14). Inside Napster. BusinessWeek, 112-120. Retrieved March 15, 2009, from Business Source Elite (3394425).
• Are Efforts to Extend Patent and Copyright Laws Good for Business or Good for Society? (2001, July 4). Retrieved March 17, 2009, http://knowledge.emory.edu/article.cfm?articleid=363
• Babcock, C. (2005, April 7). Stanford Law Professor Raps Patents As Barrier To Innovation. InformationWeek. Retrieved March 26, 2009, http://www.informationweek.com/news/software/showArticle.jhtml?articleID=160502321
• Bessen, J., & Meurer, M. J. (2008). Patent failure. Princeton: Princeton University Press.
• Guntersdorfer, M. (2003, March 21). Software Patent Law: United States and Europe Compared. Retrieved March 17, 2009, http://www.law.duke.edu/journals/dltr/articles/2003dltr0006.html
• Heisey, P. W., King, J. L., Rubenstein, K. D., & Shoemaker, R. (2006, March). Government Patenting and Technology Transfer. Retrieved April 13, 2009, http://www.ers.usda.gov/publications/err15/err15.pdf
• Klemens, B. (2006). Math you can’t use: patents, copyright, and software. Washington, DC: Brookings Institution Press.
• Lemos, R. (2004, February 12). Microsoft probes Windows code leak. Retrieved March 19, 2009, http://news.cnet.com/2100-7349_3-5158496.html
• Lenk, C., Hoppe, N., & Adorno, R. (2007). Ethics and law of intellectual property. Burlington: Ashgate.
• Patent Asserted Against JPEG Standard Rejected By Patent Office As Result Of PubPat Request: Public Interest Group’s Review Results in Broadest Claims of Forgent Networks Patent Being Ruled Invalid (2006, May 26). Retrieved March 16, 2009, http://www.pubpat.org/Chen672Rejected.htm
• Rawls, J. (1999). A theory of justice. Cambridge: Hardvard University Press.
• Schultz, W. J. (2001). The Moral Conditions of Economic Efficiency. Cambridge: Cambridge University Press.
• Stallman, R. (2005, June 20). Patent absurdity. The Guardian. Retrieved March 17, 2009, http://www.guardian.co.uk/technology/2005/jun/20/comment.comment
• U.S. Patent Statistics Chart Calendar Years 1963 – 2008 (2009, March 26). Retrieved March 27, 2009, http://www.uspto.gov/go/taf/us_stat.htm

The Fugitive Game: Online with Kevin Mitnick
by Jonathan Littman

As someone who spends a lot of time reading computer and security news, I’m no stranger to Kevin Metnick. I did an entire paper on social engineering, in fact, and you just know that I at least mentioned Mitnick. If that name has passed too far out of the cultural zeitgeist for you to know, you can do a bit of background reading before continuing this review. In short, Kevin Mitnick was a famous hacker in the mid-90s who was eventually caught by the FBI and served about five years in jail.

There is much myth about Kevin Mitnick, some of it still continuing today, although the public has by and large forgotten about him. There’s the old yarn about how, as a teenager, he hacked his way into NORAD, eventually inspiring the movie Wargames; this, needless to say, is spurious and false.

You may be familiar with another book about Mitnick’s capture; entitled Takedown, it was written by Tsutomu Shimomura and John Markoff. The former is a mysterious security researcher / hacker / spook who somehow assisted in Mitnick’s eventual capture; the latter is a journalist who claimed to know all about Mitnick—that is, in the form of junk articles for the New York Times that more often than not perpetuated Mitnick myths or regurgitated exaggerated government nonsense about the extent of his crimes.

Reading the previous paragraph, you may get the impression that I don’t think very highly of Markoff, and it’s true that from what I know of his Mitnick writings, he seems something of a hack. The Fugitive Game is a book written by another journalist involved in the Mitnick case, one Jonathan Littman, ostensibly to (1) set right some common misconceptions about Mitnick, (2) ask some damning questions about the role of Shimomura and Markoff in Mitnick’s capture, and the dubious legality of their involvement at all; finally, (3) Littman brings to light a new view of Mitnick, based on extensive phone interviews when Mitnick was in hiding. For reasons of which I dare not speculate, Mitnick formed a strange bond with Littman, and was at times surprisingly candid with him. The Mitnick that Littman paints is a relatively harmless nerd, not motivated by profit, and though certainly prolific in the number of systems he penetrated, almost never guilty of the monetary damages that he’s accused of.

I was initially skeptical of The Fugitive Game; the first section, which sets context, introduces a number of hacker personalities, and basically paints the FBI as regulation-skirting doofuses, reads like a bad detective novel. The characters seem exaggerated, almost stereotyped. I narrowly avoided giving up on it, but decided to wait until the promised Mitnick/Littman phone interviews took place. The good news is that the story gets better; the bad news is that the book still fails to be particularly interesting, especially more than a decade after the fact.

Perhaps I’m just too millennial: reading a book about über-l33t h4ck3rz using “high-speed” 14.4Kb modems makes me both giggle and cringe, knowing full well that the readers of 2018 will shake their heads in horror at the thought of a 6Mbps ADSL connection Most of the hacking here involves the phone companies: wiretapping, stolen cell phone serial numbers, ISP hacking, &tc.

What’s most interesting about Mitnick is that, as Littman seems to stress, he’s not particular concerned with coding. He’s not really a programmer; Mitnick was most famous for his social engineering: he plucked phone numbers and likely passwords out of corporate dumpsters. He gamed telephone operators into giving up information. He used available tools, like the Berkeley Packet Filter to exploit unpatched vulnerabilities in the Unix systems of corporations and ISPs.

The Fugitive Game likely isn’t as dramatic as Takedown; Littman doesn’t seem particularly concerned with hyping Mitnick’s case. He spends a lot more time trying to flesh out Mitnick qua human being, and exposing the gross exaggerations related to his story. I can’t say that the much-anticipated phone interviews with Mitnick were anything to write home about, but I at least credit Littman for writing about Mitnick in a way that fellow computer enthusiasts can appreciate.

First, it’s important to note that GPL and BSD are not necessarily compatible licenses. GPL requires that modifications to the source code be made available, and it also requires that any project which uses it must also be open source. BSD does not. Therefore, in theory, Broadcom—a very nasty vendor—could take said code from OpenBSD’s CVS server, under the auspices of a BSD license, and include it in their own closed source, proprietary driver for Windows. This is not something that Michael Buesch, one of the original reverse engineers and copyright colder of the bcm43xx code (the Linux kernel driver), wanted to see happen.

Here is an excerpt from Buesch’s original e-mail to Glocker, which he also CCed to a number of other parties.

I, Michael Buesch, am one of the maintainers of the GPL’d Linux wireless LAN driver for the Broadcom chip (bcm43xx). The Copyright holders of bcm43xx (which includes me) want to talk to you, OpenBSD bcw developers, about possible GPL license and therefore Copyright violations in your bcw driver.

We believe that you might have directly copied code out of bcm43xx (licensed under GPL v2), without our explicit permission, into bcw (licensed under BSD license). There are implementation details in bcm43xx that appear exactly the same in bcw. These implementation details clearly don’t come from the open specifications at bcm-specs.sipsolutions.net or bcm-v4.sipsolutions.net.

[...]

We’d like to have this issue resolved. In general we are not against having a free (and BSD licensed) driver in the BSD operating system. But you _have_ to cooperate with us if you’d like to take our code and relicense it under BSD license.

[...]

We’d like to offer you to start cooperating with us. We respect you and your Copyright. You should also do so on our work.

We would not be opposed to relicensing parts of our code under the BSD license on an explicit case-by-case base. So if you ask “May I use this and that function” and if I own the Copyright on that particular function, I will approve or deny your request. Other Copyright holders of the bcm43xx code might act the same way.

We’re not out for blood, just for a fair resolution. We’d like you to start contacting us to resolve the issue now.

Have a nice day.

In immediate response, OpenBSD’s founder and #1 bulldog, Theo De Raadt, launched a verbal assault on Buesch for what he (deRaadt) viewed not only as a big to-do over a piffling issue, but a breach of personal conduct as well. deRaadt is a strange one to be moralizing about social niceties, however, considering that the Theo—despite being a brilliant programmer—has all the social grace of a rabid animal. That was, in fact, part of the impetus behind his forming a separate BSD distribution. But that’s not the point.

The point is that to read the mailing lists, you’d think it was Buesch on trial here; in fact, no one is on trial. Here are the salient points.

Two Linux teams develop a Broadcom wireless driver under strict “Clean Room” standards. This driver includes features that aren’t present in the official Windows driver. This driver is then licensed under the GPL, meaning that further modifications and uses must be licensed under the GPL, as well.

Marcus Glocker very apparently copies code from this GPLed driver, which he uploads to a public CVS server under the auspices of a BSD license. This driver was only in development, meaning that it hadn’t been distributed as part of any release, but insofar as it was on a public CVS server, it could have been copied at any time—including by Broadcom—and used, however illegitimately—under a BSD license. This is the crux of Buesch’s complaint. It doesn’t matter if Glocker was only studying the code or not.

The issue has nothing to do with which is a better license. It also has nothing to do with the relative merits of Copyright. De Raadt and his camp immediately leaped upon Buesch for enforcing his self-described “Copyright,” which is almost a non-entity in the BSD world. In fact, asking that the GPL be respected is hardly an overbearing enforcement of Copyright. It’s downright liberal, in fact.

The BSD camp has ragged about GPL Nazis and such, blaming them for causing the complete removal of the driver from the BSD tree. I’ve heard some suggest that Glocker has now given up development of the driver. This is not Buesch’s fault: he asked that he and other bcw43xx copyright-holders be approached about relicensing, and that GPL-licensed code not sit in a public BSD tree–he never demanded that Glocker stop work on the driver. Glocker should not have uploaded GPL code to the public server: it should have stayed on his machine until he was done studying it, if in fact that’s what he was doing.

deRaadt has ragged Buesch extensively about making a “public spectacle” out of the issue, instead of simply contacting Glocker privately. That could have worked, yes, but open source is all about transparency–not just in code, but in development process, as well. Buesch was not out of line in making this public, likely because he didn’t expect there to be such a furious overreaction to a relatively simple matter. Buesch was perfectly reasonable in his demands, and perfectly civil in his tone. Where does the problem lie? Theo “Fuck Tha GPL” de Raadt and some very touchy OpenBSD proponents.

Here’s an excerpt from the blog post:

For my investigation, I wrote a very simple BitTorrent client. My client sent a request to the tracker, and generally acted like a normal Bittorrent client up to sharing files. The client refused to accept downloads of, or upload copyrighted content. It obeyed the law.

I placed this client on a number of torrent files that I suspected were monitored by BayTSP (For my own protection I don’t want to identify the torrents used for this research. I used the fact that NBC is a client of BayTSP to find trackers. If you want to check if BayTSP is monitoring a torrent, look for IPs coming from ranges in test.blocklist.org). Because the university’s information security office is very diligent about processing DMCA notices, I would be able to tell if the BayTSP folks sent notices based on this. With just this, completely legal, BitTorrent client, I was able to get notices from BayTSP.

Having gotten two completely baseless DCMA notices in the last few years, I’m even more angered now than I was before. Obviously, the **AA’s interpretation of the law is distinctly at odds with those of a sane person, and it misses the clue train once again: rather than leverage Bittorrent to its advantage, it seeks to ostracize BT users by reinforcing the all-too-common misconception that bittorrent = illegal p2p.

I use Comcast, which, despite some of its less-than-stellar qualities, doesn’t seem to care very much about this rubberstamped DCMA forms they get from Dan Glickman’s corpulent, Å“dematous empire.

Transcript here.

Boy Scouts in the Los Angeles area will now be able to earn a merit patch for learning about the evils of downloading pirated movies and music. [...]

The movie industry has developed the curriculum.

“Working with the Boy Scouts of Los Angeles, we have a real opportunity to educate a new generation about how movies are made, why they are valuable, and hopefully change attitudes about intellectual property theft,” Dan Glickman, chairman of the Motion Picture Association of America, said Friday.

…. Does this seem just a bit creepy to anyone else, or am I on my own here?

A few problems:

Allowing an industry to develop a curriculum is a recipe for disaster (or should I say “flop”?). I would no more allow the MPAA or RIAA to tell me about copyright than I would allow Exxon to tell me about alternative energy or Microsoft to tell me about “embrace and extend.” Remember, the MPAA’s the same organization that said you aren’t allowed to make backups of the DVDs you buy—if it gets damaged, you simply have to go out and buy another copy. Apparently, this sort of stricture is perfectly OK, but it strikes me as odd, given the Boy Scouts’ fear of homosexuals: apparently, getting fucked in the ass is only all right if it’s a litigious media conglomerate doing the mounting.

Glickman, ever stubbornly flogging the same dead horse, is right when he concludes that the attitude toward intellectual property theft needs to be changed—yes, by consumers, but just as much by the studios and the soulless abysses which represent them. I think people know the value of movies, and that is precisely the problem: certainly, they don’t seem to be worth buying anymore. At least, not when they suck, hard, and are available on digital media that was designed to give consumers the shaft.

The article goes on to that say that prospective badge-earners must also choose from a list of activities which include visiting a movie studio “to see how many people can be harmed by film piracy.” I love this, because I’m quite certain these children will be told that for every movie they download, some humble janitor or assistant to the assistant director will lose their job and return home, Bob Cratchit-like, to tell his starving family that there’ll be no Christmas presents this year—piracy has ruined the movie industry and it tireless, selfless constituents. No one will tell the Boy Scouts, of course, that the people who really care about piracy are executives whose salaries won’t be affected. The truth is that this tack by conglomerates to stem piracy with appeals to pathos is little more than people like Dan Glickman holding a pistol to some lowly worker’s temple and screaming that Dammit, if the piracy doesn’t stop, then Mr. Cratchit here gets it!

Dan Glickman is an asshole. And his merit badge isn’t worthy to wipe my ass with. Fín.

On May 24, lawyers for Viacom Inc.’s Paramount Pictures convinced a federal judge in San Francisco to issue a subpoena requiring YouTube to turn over details about a user who uploaded dialog from the movie studio’s “Twin Towers,” according to a copy of the document.

YouTube promptly handed over the data to Paramount, which on June 16 sued the creator of the 12-minute clip, New York City-based filmmaker Chris Moukarbel, for copyright infringement, in federal court in Washington.

That YouTube chose to turn over the data, rather than simply remove the offending video from its site — as it did Friday when it agreed to take down 30,000 videos at the request of a group of Japanese media companies — came as a surprise to copyright experts.

And now YouTube is safely(?) within the investment portfolio of Google, whose own video service failed to make even a dent in YouTube’s market share, as it were.

Here’s the rub: I’ve no doubt that Google will take considerably better care to hide user privacy than YouTube was in the above case. But, as Google’s concessions to China prove, they aren’t afraid to put their stock price above the quality or completeness of their service. I would not be surprised if Google did make every effort to remove videos which offend copyrights. It would also, then, not surprise me if YouTube’s traffic dried up like a puddle in the desert sun.

I don’t mean to make it sound as though YouTube is little more than a horde of lawless bandits, wickedly profiting from the theft of intellectual property, but that that whole point of the service—sharing videos—had little respect for the vagaries of copyright law. If User A thought last night’s Daily Show clip was hilarious and wants to show User B, he’s not going to care very much about whether or not he has “express written consent” to distribute it. We’re in an era where remixable and quickly distributable content is the norm, not an outlier—as much as it irks labels and studios, the old rules don’t apply. The **AA (MPAA and RIAA) likes to make YouTube users and movie downloaders out to be vicious, conniving, motherless bastards robbing the poverty-stricken organizations of their last pennies. Like just about everything that comes out of the **AA, this is crap.

But I digress. The MPAA is like the crotchety old man in everyone’s neighborhood who hobbles out onto his stoop to wave his newspaper threateningly at kids whose football rolled into his lawn. My point is that, like Napster, an organization under the watchful and stringent (not to mention myopic) eye of this incontinent, senile fool will never take off with users. Control tends to scare off originality. YouTube as we know it—the place for online video, the trendy go-to destination for all things audiovisual—will cease to exist, and will morph into one of two things.

1. It will become a place for media creators and media creators only—a little like DeviantArt, but for video. I see two problems with this: one, video quality is complete crap once it’s been processed into an FLV file. Like Google Video, though, future versions of YouTube may store a high-quality AVI for download as well. Even if YouTube does turn into a thriving community for video auteurs and filmmakers in training, it won’t have anything in common with the near-complete compendium of broadcasted material that YouTube is today, and thus will enjoy only a limited traffic stream, and consequently a limited revenue stream, as well.
2. It will become little more than Google’s search engine for copylefted and public domain video—with maybe a smattering of ‘illegal’ works up there as well. In that case, it would require a significant effort to properly name and tag these videos (as good as Google’s search is, it can’t search full motion videos, AFAIK), which wouldn’t be done by a community, because it wouldn’t exist anymore.

In either case, the users find somewhere else to engage in their “piracy” and Google’s left with the problem of monetizing a service with little desirable content and nobody to look at it. Hell, YouTube has a hard enough time monetizing their current setup, and they’re one of the most popular sites on the internet!

Personally, I don’t think the YouTube saga can ever end well. It’s one more casualty in the swath of **AA’s scythe, doomed by its own publicity, and the zeal of stupid, stupid media companies.

The panel’s members agreed at the time that the report would undergo only minor copy editing and “wordsmithing” between then and when it was formally presented to Education Secretary Margaret Spellings later this month.

That agreement was nearly imperiled last weekend, though. Gerri Elliott, corporate vice president at Microsoft’s Worldwide Public Sector division, sent an e-mail message to fellow commissioners Friday evening saying that she “vigorously” objected to a paragraph in which the panel embraced and encouraged the development of open source software and open content projects in higher education.

Is anybody surprised? I desire to blockquote the whole article, but I won’t for obvious reasons. Read it and come back to me; I’ll wait. Done? OK, good. Briefly:

1. One could argue that there is no better tool for universities than open-source software, because it allows global collaboration, and provides good experience for students in computer science programs without hurting the university’s bottom line. With the right instructors, for instance, you could run an entire 4-year CS program with nothing but open-source tools and Creative Commons teaching materials. Even if the university taught using MS tools like VisualStudio, the value of shared content is still obvious.
2. That being said, it should come as no surprise—even to Elliott—that the panel would endorse such methods. It’s not mere chaff that got thrown in the report because the panel was stocked with penguin-huggers; rather, open-source is genuinely healthy for schools, and examples like uPortal or OpenCourseWare bolster this claim.
3. Elliott’s reaction, then, both to the original wording and to the later revision that endorsed both commercial and open-source methods, strikes me as the hysterical reaction of a true corporate floozy. Is Microsoft so scared of open source that they have to flail around like this? Importantly Microsoft has to-date portrayed its own proprietary products as not only better quality, but also of infinitely more utility. If it can no longer stand upon the demonstrable superiority of the closed-source model, but rather must instead actively lobby against any paradigm which contains the word “open,” what does that say about the future of the company?
4. Elliott says that open-source is “a method of coding software, and one of several available, period.” She makes it sound as though it’s a stylistic preference, like indentation, rather than a means of sharing information. She is wrong, and her objection flimsy.
5. She also say that open content is “a term which can mean different things and enter us into some copyright debate.” Except that the very nature of open content means that copyright isn’t an issue. This is why the Creative Commons was established—MIT’s OpenCourseWare, for instance, is licensed in just such a fashion. Poor Ms. Elliott can’t seem to wrap her head around the idea of free information exchange, and thinks that Higher Ed. can’t either. She is wrong, and her company flimsy.

In case you’ve missed the recent furor over proprietary modules in GNU/Linux distributions, here’s the deal: because of the rise of popular titles available for Linux gaming, and because of the availability of hardware-accelerated desktop graphics like Xgl+Compiz or AIGLX, getting the vendor-supplied drivers for ATI or nVidia graphics card is almost unavoidable. The problem is that unlike Intel, which recently opened the source for its modern graphics chipsets, the hardcore graphics card makers only provide binary blobs—closed-source modules whose very nature means they can’t be shipped with most distributions. Similar problems arise when discussing mp3 or Windows Media playback on Linux system, which require installing more binary files or open-source programs that exist in a legal grey area in countries that let software monopolies rape and pillage to their hearts’ content (read: America. Thanks, USPTO!).

This presents a problem for a number of reasons: one, the security and quality of the program itself is not up to package maintainers, but rather to the third parties that provide the binary blobs—until today, for instance, nVidia didn’t provide a driver set that would support X.org 7.1, which was released in May. But more important, binary blobs violate the spirit of the Open Source movement (e.g., users can’t edit the source or freely redistribute the program), and make life difficult for projects like Debian, which claim 100% compatibility with Open Source guidelines.

So, the furor is: to what extent to binary blobs like video card drivers get official sanction, and to what extent should development cater to the availability of these proprietary modules?

Well, enter in Eric S. Raymond, famed proponent of Open Source in general, saying some pretty strange things.

As an open-source ambassador, he’s prepared to push some uncomfortable notions. “We need to be prepared to go to the rights holders for these proprietary codecs and say, we’ll give you money, give us a license,” he said. “This is something that the Linux community has a huge antipathy to doing because we’ve got all this idealism about open source. And in the long run, I think that’s true, I view comprising with the proprietary codec vendors as a tactical move designed to get us larger end user market shares, so that in the end we can push more things to the open.”

He makes idealism sound like some sort of kinky hangup instead of a laudable quality. Mind you, I don’t doubt ESR’s sincerity—he’s been passionate about open source software for a long time, but I think he’s maybe missing the point. First of all, he suggests giving rights-holders money for licenses to, say, patented codecs. Who’s going to fork over this money? FOSS is by-and-large a volunteer movement—Novell and Redhat aside, there are no cashcows who are going to pay exorbitant licensing fees for a patent that should never have been granted. This is a problem with patent law, not the FOSS movement. Second of all, ESR seems to see this compromise as a means to an end, but he should know better (or am I too cynical?). If GNU/Linux makes compromises now—accepts binary blob graphics drivers as canonical, for instance, or starts shelling out licensing fees on a per-distribution basis for out-of-the-box WM[A/V] support—and somehow makes enormous gains in the desktop market, does he really think that’s going to give them bargaining power? If, a few years from now, GNU/Linux is a major player in the market, and has accepted into its philosophy the “mostly-open, but some proprietary” stance, what clout will it really have to turn proprietary providers into good, line-toeing GPL-followers? None. If GNU/Linux accepts proprietary now, I don’t think there will ever be a point at which the movement can stop and say, “OK, we’ve had enough of closed-source modules now. Let’s flex our muscles and make them open-source their drivers!” Vendors can merely point to the movement’s hypothetical history of tolerating closed-source code and insist that if proprietary code and licensing fees have worked for them ever since ESR advocated it, there’s no reason to stop that lucrative (for the vendors) deal now!

I hate the term “slippery slope,” but I think in this case, we really are looking at one: I understand that the end-user makes compromises in terms of the FOSS philosophy—hell, I’ve got ATI’s binary blobs running right now on my Ubuntu 6.06 installation—but I think that compromise needs to be left to the end user. Once the distributions start doing it, all bets are off—from there, you’ll see X server releases tailored to meet the whims of video card manufacturers. You’ll see wifi support bend over backwards to accomodate a legion of different vendors. You’ll see format wars—clusterfuck, thy name is Codec—until there’s no choice but to permanently taint everything out-of-the-box with the stink of proprietary code, meaning that you marginalize developers without the money or clout for licensing, and forever knock off-course the upward trend of free software.

I’d expect such blathering from John Dvorak, but Eric S. Raymond should goddamn well know better.

For all the sins of the Catholic Church, I will at least give them credit for consistency in many regards: when they say they are pro-life, by George, they mean they are against abortion and against capital punishment. Protestants, though sensible in many more regards, have a bloodthirsty streak that is discomfiting. They are of course against abortion like most Christians, but are statistically more likely to support the death penalty. Why is killing fetuses an incredible offense but killing grownup fetuses not?

I’ve previously pointed out some of the absurdities inherent in capital punishment—at one point, I had a long and detailed workup about a case somewhat similar to the one in the previous entry, but it has been lost to the ages. Essentially, a man on death row for murder acquired and died from a debilitating neurological disease that slowly and painfully killed him over a period of many months. Afterwards, the victim’s brother had the gall to tell reporters he was disappointed that justice hadn’t been served.

The impulse to exact revenge is deliciously tempting—and it’s easy to rationalize, if you subscribe to a theory of “an eye for an eye”—but not even Jesus advocated such a system: you have to look at Old Testament, wrath-of-God stuff to find it advocated. When you’re young, and your brother punches you, your mother tells you not to punch back, but instead to come and tell her. Analogously, killing a human being is a moral wrong: “killing them back” isn’t any less wrong. It’s easier to do, however, when the killing is being done by an abstracted entity like The State: the disembodied arm of ‘justice’ has connotations of infallibility and the divine. So when Red State conservatives propose the death penalty as administered by the Establishment while concomitantly lambasting the government for incompetence, there’s a noticeable conflict of interest.

It seems to me that there are a number of liberties which ought to be preserved from the government: some, like the freedom to free speech—yes even and especially against the government—are explicitly preserved in the Bill of Rights. But the government still has the power to kill, and that strikes me as a faculty I wouldn’t entrust to anyone.

But I digress. The question at hand today is “Is it more Christian to be pro- or anti-capital punishment?” I gave credit to the Catholic Church for their consistency on this issue, and I think such a conclusion is inescapable: the killing of another human being outside of his/her agency, despite the circumstances of age or behavior, is either entirely acceptable, or entirely unacceptable. The desire to be rid of a being—be s/he a murderer or a fetus—is one made arbitrarily acceptable apparently by popular vote.

It seems to me that the killing of a nation’s less desirable elements is a wholly barbarous thing, even if it may seem easier to simply eradicate the troublemakers than isolate them. Of the 2’148 people executed in 2005, 94% of them were executed in our own little “coalition of the willing”: the US, of course, but also China, Saudi Arabia, and Iran, those flourishing democracies of the Middle and Far East. Personally, I think we’re hanging with the wrong crowd.