ARTS & FARCES internet

Creativity requires free resources—including a commons—in order to flourish. The question is not whether government or the market should control these resources, but rather whether the resources should be controlled at all. So argues Lawrence Lessig in The Future of Ideas: The Fate of the Commons in a Connected World.

(Lessig’s publisher, Random House, certainly doesn’t have a clue: the downloadable electronic edition of The Future of Ideas actually costs more than the hardcover edition, even though the cost of production for the electronic edition approaches zero while the cost of production for the hardcover edition is not insignificant. But that’s a topic for another essay.)

Clearly, some resources must be controlled if they are to be sustained, but Lessig’s point is that the default condition should be free, with control imposed when necessary for sustainability.

Free resources must be kept widely available especially in the case of resources that are nonrivalrous. Lessig uses the example of Einstein’s theory of relativity to illustrate a nonrivalrous resource. I can use it as much as I like, and there’s still just as much of it as there ever was available for your use. My consumption does not rival yours in this case. Public streets, on the other hand, are a rivalrous resource. If everyone decided to use a road at the same time, then your use rivals mine and we have a mess of a traffic jam.

Here’s Richard Koman’s great interview with Lawrence Lessig about intellectual property law and innovation.

As originally designed, the Internet remained simple, by pushing innovation to the edges of the network and without regard to threats posed to the mainstream entertainment and content industries. Lessig points out that new developments (both legal and technical) have served to undermine this innovation, making it easier for copyright hoarders to control information and experiences.

Well worth the read.

Publish software and go to jail. That’s the lesson learned by Russian cryptography expert Dmitry Sklyarov earlier this week in Las Vegas. As reported by Planet eBook, who broke the story, Sklyarov had just made a presentation at the Def Con conference when he was arrested by the FBI for violating the U.S. Digital Millennium Copyright Act (DMCA). Never mind that what the cryptography expert did—publish software that breaks the encryption used by Adobe in its eBook file format and discuss his research—is legal everywhere else in the world. In fact, Dmitry’s activities used to be legal in the United States until 1998 when the DCMA was signed into law by Bill Clinton.

If he’s convicted, Sklyarov faces up to five years in prison and a US$500,000 fine. Sklyarov remains in jail, held without bail.

Sklyarov’s software—Advanced eBook Processor—removes the Adobe eBook encryption, converting the document to the Adobe .pdf format. While potentially useful for violating copyright, Sklyarov’s company—Moscow-based ElcomSoft—stresses that the program merely allows users to exercise their fair-use rights. Or at least what used to be fair-use rights prior to the DMCA. Such application of fair-use rights—specifically, the ability to backup software and electronic documents—is required by Russian law.

I guess this week’s U.S. Supreme Court decision in New York Times Co. v Tasini answers the age-old conundrum of when a tree falls in the forest, does anyone hear? The trees fell, and we all heard. But they didn’t, so does it matter?

In a surprising decision, the Supremes ruled 7 - 2 that newspaper and magazine publishers infringed the copyrights of freelance writers when the writers’ articles were published in electronic databases without permission after print publication. While no remedy for the copyright infringement was outlined in the decision, publishers face the likelihood of paying significant damages to the thousands of freelance writers whose work was used without permission.

Imagine if the U.S. government could magically attach its own cross-references at will to every book, magazine, and other document published in this country as well as every other country. And did. The citizenry would rightfully revolt; it simply wouldn’t be tolerated. But when a large, multi-national corporation proposes the same thing, there’s a deafening roar of “tsk, tsk” but little more.

Here’s the bad news for Microsoft: their SmartTags technology, applied to the web would likely be illegal in most countries outside of the United States.

Here’s the bad news for us: Microsoft’s SmartTags would likely be completely legal inside the United States, when applied to content that originates within the country’s borders.

Why? Something called moral rights. Most civilized countries recognize them; but the United States doesn’t.