Luis VillaRamblings on software, law, and the spaces in between.

Since Robert brought grokster up, and I’ve been reading the opinions and commentary on the opinions for about two hours now, I guess I’ll blog my simplified reading of what the case means. As pgo readers should know by now, IANAL, but that seems worth saying again since this will be the most pseudo-lawyerly thing I’ve ever written ;)

First, a meta-observation: compare and contrast the wall street journal’s roundtable with the more vibrant discussion at the Picker mobblog and the nuanced readings at SCOTUS blog. I’d think that the WSJ’s discussion would have been fairly vibrant as well (it features a great lineup) but so far has been sort of slow. I am curious as to whether this is a deliberate editorial choice, an artifact of the technology they chose to publish with, or just that the people involved are not as committed to the WSJ as they might be to a more public forum like SCOTUS blog or the Picker mobblog.

On the case itself: Grokster did lose 9-0, but the actual ruling is pretty sane, and the consensus seems to be in line with what Susan Crawford says here: ‘Today’s Grokster opinion is a victory for content AND for technology.’

The court LARTed Grokster for encouraging infringement, but made it fairly clear that producing potentially infringing technology was still OK- basically, upholding the Sony case, which held that VCRs were legal, because they had substantial non-copyright-infringing uses.

How did they manage to affirm both content producers and tech producers? The key quote from the decision itself:

Sony’s rule limits imputing culpable intent as a matter of law from the characteristics or uses of a distributed product. But nothing in Sony requires courts to ignore evidence of intent if there is such evidence…

In english: If you write software that allows copyright infringement, and then actively encourage people to use it for copyright infringement, you’re hosed. But merely shipping software that can be used to violate copyright is probably not enough.

The test for whether or not one is encouraging infringement (apparently borrowed from patent law?) appears to have three main parts: did you encourage people to violate copyright law? (The court seems to suggest that advertising is a key indicator of this, which suggests to me that we’ll never see anything like Apple’s ‘Rip, Mix, and Burn’ again, and suggests to someone else that P2P is going to become like ‘tobacco shops’ selling ‘pipes’.) Secondly, once you’ve encouraged infringement, if given the opportunity to change your software to reduce copyright violation, did you take the opportunity? Third, did you have a strong motive to encourage this violation? (aka, a profit motive.) The court found that Grokster had failed on all three motives, so down they go.

The upcoming battle is laid out in the concurrences, and is discussed in more depth here and here. The main decision said (more or less) ‘we aren’t going to analyze whether or not Grokster passes the Sony tests, because they were clearly encouraging infringements, which makes Sony irrelevant.’ However, three justices took it upon themselves to say in concurrences that ‘Grokster did pass the Sony tests’, and three took it upon themselves to ‘Grokster did not pass the Sony tests.’ The next round for this will be someone (like bittorrent) to come to the court with a technology that has not been marketed as an infringing tool, but which is mostly used for infringing purposes, and for the court to fight it out over whether or not they are liable.

The actual text of the decision (and the two concurrences) is available on bittorrent; the decision actually notes that the amicus briefs were available on Morpheus/Grokster.

[Later]Tim Armstrong, who can’t accuse me of kissing his ass, since I already have a grade from him ;), has an excellent, reasonably brief assessment of the decision, which makes some of the same points I have, but much more clearly. I’m particularly glad to see that he thinks that Apple is not necessarily in the clear with iTuns, as one early assessment (now taken down) had it. Tim is pretty darn smart for a KDE user ;) go read it.

Only one day left to vote in the LJ annual popularity contest aka ‘reader’s choice awards’. I’ve in the past said ‘I don’t care about these things’, but I finally came around when I realized that many newbies (including the media, sadly) look to these things for cues about the state of the software. Even if they know the polls are broken and manipulable, they trust it more than other cues. We want to influence these folks, and that we get tromped in online polls because we don’t care about appealing to hard-core geeks is a nuance we can’t/don’t communicate. So we need to do our best to go ahead and pursue these polls.

If that didn’t make sense, that’s a long-winded way of saying ‘go vote, today’, and spread the message in the next 24 hours by whatever means you have at your disposal- other planets, other communities, etc.

Fascinating how lucky Free Software got, in a lot of ways. We got fairly good before we got popular (so hard these days); and our rock stars were skilled creators of Free Software first and rock stars secondarily- for a long time they led mostly by example. Outside Gilberto Gil and Lessig (who despite being an author does not consider himself an artist), Creative Commons seems to lack creative stars who are creators who happen to use CC, and it seems that this is fairly problematic for them. Contrast with Hal Abelson (who I had a great conversation with last night) who has been with FSF since day one, or Stallman, who as author of emacs had a great deal of cred with other programmers (though arguably he has squandered it.) It is not coincidence, I think, that CC is ragingly successful in Brazil- Gil’s influence there must be huge in ways that can’t be understood in the US. [One wonders if BBC can become this going forward, though their licenses are not CC.]

Got luck in other ways too. AFAIK, GPL was originally intended to be US-only; by the time it was widely used it was global by accident and it was too late for the lawyers to ‘fix’ it by fragmenting it and making it regional. And now, 20 years later, it is in many ways the most global social contract ever- as someone said last night, many smaller governments would now actually consider ‘fixing’ their copyright law if GPL was problematic. And it has IBM and other heavy hitters are behind it. In contrast, the lawyers are trying to ‘fix’ CC (for fairly good reasons, even if you’re not a lawyer) before it has a chance to establish itself as a global social contract. [The GPL, in this sense, was an example of optimistic concurrency- and the lawyers are just not predisposed to be optimistic.]

Some other random thoughts that I want to write down:

• Because I am an idiot, it only finally struck me yesterday the correlation between the CC’s NC and the GPL’s dual-licensing trick, as practiced by QT, mysql, etc.
• CC’s ‘machine readable’ RDF-based license structure is more interesting/important than had struck me at first. It would be sort of interesting if every .c/.h file had machine-readable license data and the compiler verified that the linking/mixing process was legal. That of course would require a RDF-based description of whether or not licenses were mixable, which would be… well, politically charged if nothing else. *cough*OpenSSL*cough*
• GPL is a single, global, social contract- much more a social contract than a license, really. One voluntarily enters into it, subscribes to its terms by choice, and gains benefits as a result. Ideal social contract. It would sort of be a shame if CC became ‘just’ a legal license and lost that additional dimension.
• I’ve long been unhappy with our trademark situation, but when I realized that Creative Commons has nasty trademark issues too, I basically said ‘if they can’t figure it out, we probably can’t either.’ Turns out that they are going to try to fix it, which exites me no end, because if anyone is going to pull a legal rabbit out of their hat, it’ll be CC. It might be a while, though.

Today I’m at the summit for iCommons, the org for promoting/organizing Creative Commons at the international level. Very cool meeting so far; the energy is really quite spectacular and the international flavor is like GUADEC, except better funded (thanks to Soros) and better spoken (more lawyers, less geeks.)

They are having fun with flickr; there is a flickr account one can email to to get your picture added to the conference photo stream. Fun. As soon as we get a Free replacement for flickr, we should do something similar for GUADEC and summit :) Lots of people have done it on their own, though.

Probably more thoughts on GNOME and CC later.

Another great tidbit from today, very, very badly paraphrased from Charles Nesson:

The non-profit, in the basically rhetorical environment of the web, has a competitive advantage, because it has clarity of purpose and message, which means that the information it conveys is trusted and liked.

Still enjoying iLaw; pictures soon. This morning’s lectures are on software (copyright and patent). Jonathan Zittrain is speaking right ATM, and he captures the distinction between FSF and proprietary software fairly succintly:

So, you’re in a hallway at MIT, and you have a great idea. ‘Eureka!’ The instinct at MIT at the time was ‘Eureka! come and look!’, not ‘Eureka! Where are the lawyers?’

I’m going to have to learn to be a better note-taker if I ever want to go back to school; my notes are terrible.

I have decided that I believe in intelligent design.

Seb has packaged gtk 2.7.0 for Ubuntu; I’m happy, but waiting for others to package it for FC4 and SUSE 9.3 users.

A bunch of us locked ourselves in my living room yesterday and looked at Summer of Code proposals. We actually got Seth out of bed by 10am, and kept going until nearly 9pm. There were 460 of them to start, and many were good. Trimming them down was not fun. It’s not done yet; some good folks are still sacrificing themselves to make a final cut.

I, on the other hand, am not sacrificing; I am at Harvard Law, attending iLaw 2005. (Dom, please don’t hate me.) Dave once said that I like hanging out with smart people; he had me completely nailed. In most cases, iLaw lectures are not covering new ground for me, but the old grounds are brilliantly presented by very smart people, and that is always fun.

If you live in Alabama, Alaska, Hawaii, Iowa, Kansas, Kentucky, Maryland, Missouri, New Hampshire, New Mexico, North Dakota, Texas, Vermont, Washington, or Wisconsin, and you want to be able to record TV in the future at your own discretion (instead of the movie industry’s) run, don’t walk, to the EFF. They are trying to sneak the broadcast flag into a giant appropriations bill, and if you live in one of those states, you need to contact your senator tonight and tell them what a bad idea it is. Phone numbers, fax numbers, emails, etc. are all at that link.

Two quick announce-type-thingies for planet:

Evangelia Berdou, who has attended the past several GUADECs, and is generally cool, besides being a student at LSE :) posted an announce about her research to foundation-list. Looks like she’ll be emailing quite a few of us. If you get it, return it to her, please! I’ve been talking with her quite a bit, and have read some preliminary results, and getting good data will be very interesting, both for her and for us.

Also, the nutters from lugradio are having a lugradio live meetup this saturday. If any gnome people in the area would like to drop by and have a booth-y type thing showing off GNOME, email Matt (at) understated.co.uk.