Open Source--The Unauthorized White Papers Chapter 14, Intellectual Property

Open Source: The Unauthorized White Papers

Chapter 14

Intellectual Property

The first chapter of this book began with a broad look at the origins of the Open Source software movement and its position in the operating system wars; this last chapter will look at its position in the broad context of the intellectual property (IP) wars whose first battles are already being fought, and whose outcome may have important consequences for Open Source and businesses based upon it. Presently, pragmatic Open Source and the ideologically-motivated Free Software are disturbers of the proprietary software status quo; it is not at all certain whether, as some believe, Open Source will one day be the only kind of software around because users wonít want anything else. What is more certain is that, faced with the growing restrictions in the IP world and their capacity to stifle software innovation, Open Source will be their deadliest enemy.

Community Power

Although not well organized, the Open Source Community can bring its weight to bear upon problems it believes to be sufficiently threatening. In 1994 an opportunist filed for a trademark on the word "Linux," and after obtaining it a year later began to send letters to various Linux companies demanding 10 percent of their revenues for the use of the trademark. The trademark apparently held good, for after bringing suit, a coalition of Linux plaintiffs who had called for its cancellation acquired it in a private settlement on undisclosed terms; they subsequently put it in the hands of Linus Torvalds. The danger was averted, but the Community was upset by the close call.

They consequently descended with all the wrath of public opinion on a set of individuals who presumed in 1998 to set up a "Linux Standards Association" without any discussion of it within the Linux Community. The surprise was followed by rumors that the association was a catís paw of large computer industry companies plotting to hijack Linux. The association proposed (like many standards bodies) that only fee-paying members could vote on the standards, and that the two companies who sponsored the association would be the final arbiters of those standards. The promoters withdrew from public view under withering scorn, and no small part of the outrage was the idea that the perpetrators might give a watching world a picture of a disorganized Community at a time when it was trying very hard for public acceptance. The Community-based Linux Standard Base (LSB) found itself strengthened by the episode as at least one independent-minded Linux company decided to give it more support as a means of filling what was obviously a dangerous vacuum.

Businesses venturing into Open Source waters can draw two lessons from these incidents: first, that it is important to deal carefully with the Community when doing something other than straightforward business under Open Source licenses (some companies appoint ambassadors to the Community, a variation on the Apple use of evangelists to drum up interest and support from developers); and second, that the Community can find resources to use to serve its ends. In the case of the Linux trademark, the Community summoned up the necessary effort, funding, and the pro bono services of attorneys. Sun software has begun experimenting with more open licensing in the face of scornful Community opinion, perhaps aided by pressure from IBM, which wants Java, to which IBM has contributed so much code, finally made an Open Source product. The osmotic and networked nature of the Community mean that efforts do not necessarily have to be planned or coordinated to be effective.

The Coming IP Struggle

The crusader aspects of Open Source, first seen by the public as David versus Microsoft, have not gone away; this time the Children of Light will be fighting the dark forces of IP lockdown. If modern digital technology has given users unlimited powers to filch copyrighted material (particularly popular music), the holders of copyrights are learning to use digital technology along with legislatures to enlarge their IP rights at the expense of users. Not directly connected, but sharing the same goals, the litigious proprietors of software patents are also spreading their domain.

Each side of the contest has its extreme positions. Although the GNU GPL and the Open Source movement rest on copyright as a means of ensuring the freedoms they seek, there are elements on this side of the struggle that believe that once information is digitized it is free for everyone. A Free Music movement, for instance, regards itself as justified on moral, if not legal grounds, to take and freely disseminate any copyrighted form of digitized music. The other side of the struggle has no such fundamental split; it sees digitized IP as uniquely able to be portioned out for payment, and intends to capitalize on this windfall. Extended IP rights will make fair use (loaning or giving your copy of a book to a friend, or selling it to a second-hand shop) disappear, along with making a tape of your copy of a CD to take on a picnic. Instead books and music will be tied to particular devices, and transfers among them will be difficult if licensed or impossible if not provided for.

The polarity between the two sides reflects the natural division between business and the Internet culture. Businesses continually seek to erect barriers to entry to protect themselves and their markets from competition; the best barrier is a government-granted and -enforced monopoly, which is what copyright and patent law confer. Open Source, on the other hand, is partly a product of university research laboratories that are publicly funded and that freely publish the results of research to open those results to question or improvement by others; consequently, Open Source supporters believe that only excellence in execution constitutes a real barrier to entry. They believe this not only as a principle, but as a practical truth: a project that fails to serve its constituency will either fail or be forked.

IP and Scientific Journals

As an example of how widely the open versus IP contest has spread, one of the battles between research and business is the growing consolidation of scientific journals in the hands of IP conglomerates. Professors win tenure and promotion by publication in the leading journals of their fields, which are edited by the senior figures in their field, who are in turn paid for their editorial duties by the journalsí publishers. The publishers charge special high prices to university libraries (as opposed to individual subscribers), which have increasing trouble affording them as these prices rise. Faculty insist that the libraries continue to purchase the expensive journals. Articles can take from one to three years to appear in these publications, which can be said to embalm rather than to further scientific knowledge.

In many cases the publishers forbid the authors to put copies of their articles on their own Web sites. Researchers have long had the practice of mailing each other photocopies of articles they were working on, even after these articles were accepted for (eventual) publication by the journals. The Internet was founded in part to speed such dissemination of research, and saves the mailing and photocopying costs and delays. Thus a parallel, open method of furthering scientific inquiry has grown up, and the latest controversy is about (free) electronic journals to publish these findings. The established journals can fight these electronic upstarts by refusing to accept material that has already appeared in them, and the senior faculty, who enjoy income and prestige from the journals, can point out that the articles in the electronic journals are not "refereed," that is, published under the authority and scrutiny of the senior professors in the field, and thus of little consequence to tenure and promotion.

In the days before electronic dissemination, journal publication remained a guild matter, but once digitization became possible, the consolidation of the journals and the hiking of their prices by such pioneering figures as Robert Maxwell became part of a wider pattern and a cause for more public concern. The total effect is that elements of the public-funded research community ally with businesses to hinder the spread of scientific research that the Internet was funded to promote. It is true that researchers who know each other can send private e-mail containing their research to each other (at least, so far), but this practice neglects a wider forum that could be reached cheaply and effectively by electronic publication.

The Open Source movement, only just now coming into public view, feels that the innovation and spread of knowledge that were originally supposed to be promoted by the limited monopolies of the patent and copyright systems are now becoming victims of broad extensions of these two IP protections. This community, the Open Source community, finds itself trying to defend software users, readers, and music fans by providing arguments and technology to be used against IP conglomerates such as Walt Disney and Time Warner and their trade associations, such as the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA). Unfortunately, the Open Source community finds its efforts blunted by laws that the IP industry has persuaded the federal government to pass, and is currently pressing upon the several states.

Intellectual property law is a hot high-growth area in high technology; the excitement and high pay are attracting young people in droves. Besides the demand brought on by the new extensions of patents and copyright, it has strong connections to on-line issues in free speech, encryption, and privacy. Silicon Valley is a hotbed of law firms and law schools specializing in these issues, and recently Pamela Samuelson, a law professor at the University of California at Berkeley and an authority on these matters, put her weight on the open side of IP issues by donating with her husband $2 million to found a law clinic to deal with all these issues from the consumerís side of the fence. The founding and funding of the clinic is another demonstration that Open Source is finding the means to put its views forward.

Coming IP Issues to Look For

The review that follows can hardly cover the legal subtleties of the issues, or begin to list the pending law cases in the issues involved. The subtleties will increase as courts in different jurisdictions continue to render different decisions, and the number of law cases can only grow. The main issues are the Digital Millennium Copyright Act (DMCA) and its extensions to the scope of copyright, even to extinguishing Fair Use as it has been understood up to now; the Uniform Computer Information Transactions Act (UCITA), a change to the Uniform Commercial Code (UCC) now attempting to cover the country by engaging state legislatures one by one; and the extensions to patent law that recognize the patenting of computer algorithms and business processes.

The Digital Millennium Copyright Act of 1998 (DMCA)

The Act originated in a 1994 white paper prepared in the U.S. Department of Commerce and entitled "Intellectual Property and the National Information Infrastructure" (http://www.uspto.gov/web/offices/com/doc/ipnii/). Because Congress refused to pass an administration bill incorporating features of the white paper, the Commerce Department proposed features of it to the World Intellectual Property Organization (WIPO) during the negotiations leading to the 1996 Copyright Treaty, apparently with the thought that an international treaty, if ratified, would bring Congress to pass confirming legislation. The WIPO rejected the U.S. proposals, and so the administration set to work again in Congress and eventually was able to pass the DMCA (http://frwebgate.access.gpo.gov/cgi-bin/useftp.cgi?IPaddress=wais.access.gpo.gov&filename=publ304.105&directory=/diskb/wais/data/105_cong_public_laws). As a result, IP in the United States enjoys restrictions on fair use of copyrighted material unknown elsewhere in the world.

The mechanism for implementing these restrictions is technology, such as encryption, which will prevent the average user from copying copyrighted material or even accessing it. It is specifically against the DMCA to circumvent this protection, even if the fair use clauses in the DMCA allow it (!). It is likewise illegal to make and to distribute any device for the defeat of the protection devices for copyrighted matter. The practical result is that the user cannot make a copy, even if fair use allows it (to make a copy would require defeating the copy-protection system for the purpose of copying, a crime); the analysis allowed resembles the "look, donít touch" licenses that call themselves Open Source but deny the user its fruits ó except that even viewing the material can be blocked by the protection mechanisms.

A detailed critique of the Act ("Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised" at http://www.sims.berkeley.edu/~pam/papers/Samuelson_IP_dig_eco_htm.htm) takes up many of the problems for users that the DMCA will cause. In this chapter we have only space to talk a little about its special protection of copyright-protection technology. The public has already noticed that copyrights now typically extend beyond a century, shutting out many early twentieth-century works that would otherwise have passed into the public domain and found their way onto the Web. And thanks to recent law cases the public is slowly becoming aware of the problems that the copyright protection technology is causing.

Many software users are able to remember the days when software publishers, fearing their works would be circulated for free, installed copy protection schemes on the distribution disks. Some hindered all copying, some hindered making more than a couple of copies, and some products required the insertion of a special "key disk" every time the program was run. Users objected to the copy protection, and found ways to get around it. Products were even sold for the purpose, and the law allowed them because the purchasers of the software had a fair-use right to make a few copies for their own purposes, such as backup on other disks and even on spare machines. The fact that the licenses might forbid these practices did not matter, for the courts regarded the shrink-wrap licenses as having no power against the usual rules covering buyers and sellers in a mass market. The early phonograph records had tried printing licenses on the record sleeves forbidding their resale, for instance, and these had likewise failed.

DVDs, CSS and DeCSS, and VCRs

The use of a tool to defeat copyright-protection technology will not become illegal until two years after the passage of the DMCA, but the making of such a tool is already illegal. The IP conglomerates have begun to test the waters by using existing laws, and beginning to use the DMCA. The DVD format is currently used for putting films on compact disks; a DVD is protected against access or copying by lightweight software called the Content Scrambling System (CSS). Now Open Source fans respect copyright (it is the basis of Open Source licensing), but they also believe in fair use. So when users who had purchased DVD movies wanted to play them on their Linux systems, they were unhappy to discover that there were no drivers available. Mac and Windows users, however, had no problems. To study how to write a Linux driver, it was necessary to defeat the CSS (fair use of reverse engineering for compatibility), and playing your own DVDs on your Linux system is also fair use. But both are violations of the DMCA because they require defeating the CSS. A piece of software to enable DVDs to run (to be viewed) on a Linux system is a device to defeat the protection technology, and likewise prohibited. When a fifteen-year old Norwegian posted such software to the Web ó the DeCSS ó the fight was on.

The movie industry began its attack in the courts for example in California as a suit by the DVD Copy Control Association (http://www.dvdcca.org/) against persons posting the DeCSS on their Web sites; the software violated the trade secrets of the CSS. A suit was brought in Connecticut against an ISP who had such Web sites on its system. The general complaint of the suits was that the only purpose of DeCSS was to break copy protection and thus enable theft of the movies; any site posting the software or tolerating its posting was an accessory to the crime of copyright violation. Norwegian police rounded up the young Norwegian poster of DeCSS following the request of a U.S. court.

The movie industry is prosecuting even sites that do not post the DeCSS, but which only point to sites where it may be found; are these sites exercising free speech, or are they no better than touts for a speakeasy? There is another free speech question regarding the source code for DeCSS: since at least one court has recognized software code as an expression deserving the protections of free speech, shouldnít the posting of DeCSS source code be protected? Linux fans were outraged to see the prosecution of sites posting not the tool itself (the compiled binary) but the source code, which Linux fans are used to circulating and compiling on their own systems for themselves.

Under the DMCA, any protection scheme that serves to prevent copying will enjoy legal immunity against efforts to defeat it, even though it is put to uses that are not covered in the DMCA. For instance, the CSS technology divides the world into zones: a DVD from one zone cannot play on a device (player) from another zone. This prevents your buying a DVD in India or Africa, where they are (like tickets to American movies) cheaper than they are in the U.S. Yes, there is an obscure software feature that enables you to turn your North American device into a device for another zone, but it can be flipped back and forth only a few times before it becomes unavailable. You cannot build a DVD player without a license from the CSS authorities, and we can expect that someday music will be on DVDs, that CD players will no longer be made, and that CSS will prevent CDs from being played on DVD players, so that CD owners will have to buy their music all over gain, this time in DVD format. Present DVD owners have already noticed that they cannot fast-forward through the commercials placed on DVDs; the degree of control over access may one day extend to authorizing only a limited number of plays per disk.

The oddest thing about the DVD suits is that Macrovision (http://www.macrovision.com/index.html), which supplies the copy protection for the DVD format, seems to agree with the DeCSS users that they are only defeating the encryption system on the disks to play the contents. In the first place, the encryption technology is a means of compressing the content, which when decrypted is about twice as large as the disk will hold; it canít be copied to a blank DVD, which in any event costs more in its blank recordable state than it would if sold with a preinstalled licensed movie on it. Because the decrypted movie is 5 Ė 9 GB in size, it canít be written to any readily-transferable medium, and transmission over the Internet would take many hours: all the decrypter can do is play the decrypted movie on his or her own machine. In addition, the Macrovision copy-protection technology is unaffected by this process, and if an attempt were made to transfer the content to an analog VCR, internal checks in the content would foil the attempt.

Although digital convergence (the reduction to digital form of music, movies, and voice and written communications) called forth the DMCA, its hand gladly reaches back into the analog age. One delayed provision of the Act, just now taking effect eighteen months after its passage, is that all VCRs sold in the U.S. will have to incorporate anticopying technology conforming to a prescribed standard. This technology will take its place among the copyright-protection devices that the DMCA forbids anyone, including fair users, to defeat.

Cyber Patrol, cphack, and the GNU GPL

Another recent case demonstrated the growing power of IP holders over fair use and particularly over free speech and public discourse; the case involves Mattel, Inc.ís "nanny" product (one that governs the Web behavior of juveniles, or of adults treated as such), Cyber Patrol. Nanny products are hotly debated by parties that want the schools and libraries to install them, and by parties that regard them as censorship, particularly when installed in libraries. One point of criticism is that they inaccurately block harmless sites; another is that there is no list of the sites blocked (said to number 50,000) so that innocent sites cannot be restored to visibility.

To prove these arguments, opponents of Cyber Patrol hacked their way into its interior and found listed not only what they judged to be innocent sites, inadvertently blocked, but strong political biases at work in the blocking of other sites. They noted that sites criticizing nanny software were blocked, thus suppressing discussion of free speech matters. They then published their findings on the Web along with the tool for use in examining the interior of Cyber Patrol, calling the package cphack.

Mattel responded with lawsuits against anyone who posted the material, alleging copyright infringement and trade secret protection (other nanny software packages might crib from their list). It then added the cphack site to Cyber Patrolís blocked sites and for good measure used the courts to demand that ISPs around the world reveal identities of persons who had downloaded cphack. The issue as presented by Mattel was not free speech, but theft of their intellectual property.

The resolution of the cphack case was particularly unsatisfactory for the Open Source community. Cphack was distributed under the GNU GPL, probably with the intention of making it as unstoppable as possible. Although the young authors were in Canada, they felt enough pressure to settle the case on Mattelís terms. Mattel compelled them to surrender the copyright to cphack, and then used ownership of the copyright to revoke distribution under the GNU GPL (because they did not assign the copyright to the Free Software Foundation, the FSF has no standing in the case). At the moment, it does not look as if Open Source advocates will have a chance to test the validity of Mattelís revocation because cphack, as a tool designed to circumvent copyright protection, is contraband anyway. The courts are not really finished with any of these cases yet, and we can look forward to more like them.

Give me music, music, music, music, music

The cases that involve the largest numbers of people and make the most noise are particularly dear to the IP conglomerates, because they involve masses of people in a lucrative market ó popular music. While the entertainment industry likes to talk publicly about DeCSS users as "thieves," thereby confusing the public about the issues involved, it is a good bet that the majority of the people who are involved with exchanging music via Napster are indeed copyright violators.

The MP3 format originated as a newer and more advanced compression technology, enabling easier transmission and storage of music. Under fair use, users "ripped" tunes from their CDs and built selected playlists for their computers, and stored them on their hard drives. They also sent their favorite tunes to their friends. Soon devices appeared that acted like portable CD players, except that they stored and played back MP3 files. The enormous (and generally infringing) traffic in MP3 music attracted the attention of the music industry; the technologies that the DMCA supports are the result. MP3 is too fungible a format to please the industry, and so the newer standards (like DVD) are intended to end the free music party.

The biggest boost to MP3 swapping has been a piece of software called Napster (http://napster.com/), distributed (like so many music tools) free over the Internet. Napster, Inc. does not believe in copyright infringement, and has said it will drop users from the system if they are identified as violators (the Metallica suit names 355,000 users who are distributing the bandís music via Napster). But Napster makes it so easy. You install the free client, specify (if you wish) a subdirectory on your computer that will contain the tunes you are willing to share, and then ask Napster what music in your favorite categories is available from fellow fans. Napster gives you access to the shared-music subdirectories of your fellow fans, and makes downloading as easy as clicking. The facts that the offerings by fans contain much for which they have not paid, and that their promiscuous offering of it amounts to unlicensed publication, have rightly outraged the RIAA, which has also brought suit against the firm. Napster Inc.ís position that they are a "communications system," and thus exempt under the DMCA for what passes over their lines, may be their only hope to escape punishment. The music-finding aspect of that "communications system," however, might well make them accessories to copyright infringement.

So far several colleges faced with Metallica lawsuits have forced Napster off their systems, and some ISPs are telling their customers they will be booted if they use it. In both cases, the presumption is that the material being passed is infringing, and the threat of lawsuits acts as a "prior restraint" on legitimate activity as well.

Wrapster

If Napster was only good for one thing ó transferring MP3 files ó and a good share of them likely to be illegal, it might be regarded as a piece of criminal equipment. Enter Wrapster (http://wrapster.homestead.com/), an add-on that allows any sort of file to be transferred via Napster, which it tricks into believing they are MP3 files. Wrapster transforms Napster from suspicious software to general purpose software, like FTP. But its inventors, in that self-mocking way of hackers, have included in the Wrapster documentation a guide on to how to transfer a file; the file just happens to be called Windows 2000. Obviously, like the rest of the Internet, Wrapster is one more tool for uncontrollable subversion of the old order.

Gnutella

Napster and Wrapster cannot be blamed upon the Linux Community, since they are Windows products. With Gnutella (http://gnutella.wego.com/) we have one more improvement in Internet file sharing, but in the form of a cross-platform Open Source project (Windows, Linux/UNIX, Mac, Java and others).

Gnutella originated in a little company called Nullsoft, which put out the first popular MP3 player, Winamp. AOL acquired the company, and so people were a little surprised to see, coming from within AOL, a notice of an offer of the new Gnutella file-sharing tool by a start-up called Gnullsoft. AOL acted within hours to shut the site down, but a programmer reverse engineered the protocol and began an Open Source Gnutella project. As a result, Gnutella lives on in multiple embodiments (the address given here is simply one of the projects).

Gnutellaís inventors specifically designed it to overcome the shortcomings of Napster, particularly as revealed in its persecution on college campuses. Besides making it a universal file transporter, they decentralized its design so that there is no central server to block or serve papers on. It will work even if one end of the connection is behind a firewall, and it employs bandwidth-shaping to make sure that hosting networks are not overloaded; such overloading was an excuse offered by some colleges for evicting Napster. Gnutella is harder to find and block because it enables the user to select different ports to listen on, and it can limit an internal networkís connection to the Internet to a single point.

Once you have installed Gnutella, when your request for a file encounters another Gnutella, it contrives to visit every Gnutella visited by the other Gnutella. The connections formed can be one-to-one or many-to-many, ad hoc networks that are constantly shifting as Gnutellas encounter each other or go on- or offline. All of the files on all of the connected Gnutellas are available to each other.

The Free Network Project (Freenet)

The fecundity of the Internet is such that Napster is not the only product of its type; it has at least two competitors, though they are not so famous. Gnutella is not alone either. The Free Network Project (http://freenet.sourceforge.net/) works without any permanent IP addresses or domain names and ensures anonymity for persons who transfer information over it. Like Gnutella, it is a distributed network, and one that handles not just requests to send files, but also one that initiates file transfers to build mirror sites of demanded information near locations where that information is frequently demanded. Like Gnutella, it offers no central server as a weak point, and claims to be more efficient and scalable than Gnutella.

The ability to choose to move information from site to site around the Web, rather than waiting for requests, enables efficient service and, most importantly, assurance that a file, once put on the Free Network, cannot be completely removed, nor is it possible to tell exactly where a file is stored.

Internet culture and intellectual property

The entertainment industry is bothered by emerging technology and particularly by the properties of the Internet that can eliminate or circumvent intermediaries. While the wealth of these companies consists in their "content," or intellectual property, they are only the middlemen, the distributors of entertainment from the artists to the audience. Modern electronics makes it possible for artists to publish their own work on the net, including high-quality audio files. There are a number who publish on their own Web sites rather than approach the record companies, and occasionally a pop group, although signed to a record company, will put a piece of their work on the Web for their fans.

Rather than regarding such gestures as building a community around a Web site (as other merchants are trying to do on the Web), record companies tend to see such incidents as lost revenue. After watching the MP3s fly around the Internet, the companies have decided to embrace modern technology to better control their products. Where Nero could only wish the Roman people had just one neck, the IP conglomerates see digitization as the perfect choke point in the media distribution channel. Product segmentation starts here.

But like Microsoft trying to take control of the Internet with proprietary protocols, the IP conglomerates (who happen to include Bill Gatesís media holdings) on their march to control user rights are encountering the same barrier to lockdown: the original spirit of the Internet. The Internet was designed to move information freely, and designed to be uninterruptible, even by atomic war. It was designed to promote cooperation and innovation and a free spirit of inquiry. It was not intended to cause such incidents as Stephen Kingís being unable to read his own newly-downloaded e-work, Riding the Bullet, because it wouldnít run on his Macintosh and he didnít have the authorization to make it run there.

Note

American Libraries, published by the American Library Association, reports in its May 2000 issue that Simon & Schuster refused to sell libraries the e-book novella by Stephen King, Riding the Bullet. Doing so would violate their policy of one copy per user, the publishers explained.

Copyright did not formerly cause problems on the Internet. Researchers who used to photocopy materials and rearrange them with scissors and rubber cement were now able to quickly and easily assemble fair use research libraries of material from the Web, and to search the material even more efficiently by computer. When they published, they observed the rules for quotation and attribution, and avoided plagiarism. They did not publish someone elseís copyrighted work on their own Web sites; they linked to the work on its publisherís site. The publisher posted his or her material on the Web in HTML, knowing it enjoyed the usual protections of copyright, even in cyberspace.

Now researchers face a dawning world in which Web-based information will be so tightly controlled that they will be permitted to observe information, but not to manipulate it; unable to access it with anything but their gaze they will be reduced to the state of cavemen, staring at paintings on the walls. A picture of a page of text is not nearly so useful or informative as the electronic text itself.

The spirit and freedom of innovation expressed in Open Source are trying to continue their life on the Internet. But restrictions are growing. Under fair use, there should be no objection to a userís possessing a RealAudio or RealVideo file, but RealNetworks technology prevents your saving them to disk. Streambox (http://www.streambox.com/) offered technology to capture such streams until hit by a lawsuit from RealNetworks. The LiViD Project (http://linuxvideo.org/) for Linux video and DVD appears to be pressing ahead, although it is the object of a DVD Copy Control Association lawsuit. One of its innovative projects was said to be a system of searching a DVD for a line of dialog.

All of these innovators are called thieves by the IP conglomerates, and there is worse name-calling ahead. The distributed computing technologies described previously are not really about teenagers trading pop music. They are capable of keeping Falun Gong alive in China, or exchanging information among repressed factions anywhere. To the authorities and those who have their ear, however, these networks will look more like tools of Kinderporn, one of the sticks used to beat the Internet (does the category include Princetonís collection of Lewis Carrollís nude photographic studies of nine-year old girls?). It is true, of course, that pornography has been a technology leader for some time now, playing a role in the rapid spread of VCRs, CDs, and AOL. Wired and the Wall Street Journal alike have marvelled at the enormous and smoothly running server farms of the porn kings (who happen to prefer BSD). But pornography is simply part of a larger and more important picture.

The extraordinary freedom of the Internet is exhilarating to some and horrifying to others. It exerts a fatal attraction on the repressive mind, who, rather than wanting to share in its marvelous powers, seeks to arrogate them to itself.

Open Source is capable of bringing together some curious allies. The Chinese government has expressed a great interest in Linux based on national defense needs: the code is available, and can be inspected for bugs, viruses, and other traps; the Linux-using nation cannot be held hostage by a proprietary firm on the other side of the world. The EC has adopted a policy of seeking Open Source software to use in its operations, and the U.S. Governmentís Los Alamos laboratories has funded the Software Carpentry Project (http://www.software-carpentry.com) with nearly a million dollars, including prize money, to encourage the building of a new generation of Open Source software tools; the first-round winners have just been chosen.

The Uniform Computer Information Transactions Act (UCITA)

The proposed legislation now known as UCITA was originally proposed as Article 2B to be added to the Uniform Commercial Code (UCC), a joint project of the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws (NCCUSL). The ALI believed the proposal needed much more work, and refused to approve it, whereupon the NCCUSL changed the name from 2B to UCITA and decided to carry on alone.

UCITA is now seeking passage, state by state. Without the backing it needed to become an official UCC model for uniform adoption, however, each state now feels freer to tinker with the admittedly dodgy contents. Some states will do more than others, and even if UCITA eventually passes in all the states (rather than in just some of them), it will still create a national patchwork of laws governing computer transactions.

Perhaps because the law is represented as a magnet to attract high-tech companies eager to flourish under its protection, that aggressively high-tech Commonwealth, Virginia, was the first to pass it, followed by Maryland, who was perhaps wary of any advantage accruing to its first-moving neighbor. Iowa is now the third, perhaps also for reasons of high-tech ambition.

Because the laws vary as they are passed by the several states, it will do to mention only generally some of the provisions of UCITA. On the whole, the law substitutes software licensing for the usual buyer/seller commercial relationship that used to govern buying a box of software; the net effect is to put buyers at a disadvantage. While Open Source fans can be happy that their licenses will now be taken more seriously, so will every other shrink-wrap license that comes in a box. You may be forbidden to pass along (or sell) your copy of the software, for instance, and to be sure of just what the shrink-wrap license says, you will have to read every one of them carefully.

Among the privileges UCITA now allows software vendors is the right to plant a software bomb in their product, just in case you donít live up to the license. In general the vendor is not liable for any damage done by this "self-help," not even if it goes off accidentally, and not even if a visiting cracker decides to activate it. A law like this could be good for Open Source if it stampedes users into buying Open Source so they can check it for self-help code.

Supposedly the law aids the buyer because "mass-market" transactions are supposed to carry a warranty; a look at the Maryland version reveals a definition of "mass-market" so restrictive that few will actually be covered by this warranty. Open Source software, of course, comes with no warranty, and should be able to find a way of disclaiming any, although this will vary state by state. In the meantime, the software business continues as usual: both Open Source and shrink-wrap licenses warn the user to expect nothing.

One interesting feature of the law is that it claims to apply the laws of the adopting state to customers who are out of the state; in Iowa this provision was altered to state that any party in another UCITA state attempting to apply its laws to a transaction with an Iowan will be subject to the laws of Iowa.

Finally, UCITA bans reverse engineering of software.

Patents

Patent infringement is the monster hiding under every software developerís bed, whether Open Source or not. As Open Source software grows in power, it grows (in theory at least) increasingly likely to infringe some lurking patent.

Up until fewer than ten years ago, business processes and software algorithms could not be patented. Ever since the courts recognized patents in these areas, however, there has been an arms race among software vendors to accumulate as many patents as possible. While everyone protests that these patent arsenals are purely defense, every now and then somebody sets off a missile: Jeff Bezos of Amazon.com shocked online merchants when he used a patent to force BarnesandNoble.com to quit offering one-click ordering; B&N had to add an extra click to the process. Amazonís recent patent on affiliate relationships (having links on your site that send people to do business on your partnersí sites) has people wondering when the next litigation will begin: the affiliate practice is common enough on the Internet.

Even the public has begun to notice how absurd the situation has become. Besides the new power to grant patents on business processes and software algorithms, the Patent Office seems to have weakened powers to refuse patents. The shortage of personnel to do thorough research on prior art and the strong possibility that a rejected applicant will simply sue and be granted the patent by court order combine to make sure that most patents do get approved ó even those like US 5443036 Method of exercising a cat (http://www.patents.ibm.com/details?&pn=US05443036__) by means of a laser pointer. To a patent attorney such patents hold no interest, because they will obviously never be used against anyone. This one, in fact, might be an office joke, since the inventors have addresses in Virginia suburbs not very far from the Patent Office.

There have been some attempts to adjust to a patent-dominated world in the Open Source area, but not many. The Mozilla Public License (MozPL) says that any contributor suing another for patent infringement on the basis of a contribution will lose the right to exercise any license held from that contributor; the IBM Public License increases the penalty by having the plaintiff lose the patent license for the defendant contributorís software, and in the entire program, if the contributor alleges patent infringement against the program itself.

Weíre All Geeks Now

In the first centuries of our national existence everyday life involved knowledge of agriculture and mechanics, for the people were largely farmers and artisans and often both. This way of life involved its own politics and political decisions. For the past two centuries technology has grown increasingly important to the way we live and work, and over the past hundred years Americans have grown increasingly knowledgeable about such topics as automobiles and business practices, and the politics and decisions that surround these fields in turn.

Computers are growing in importance in all of our lives, not just because they are nearly universal in the workplace, or because they are increasingly coming into our homes. The PC is only part of the question. Around the world, peopleís first experience on the Internet will more likely to be through a device than through a PC. The issue is not that Linux wants to be on these devices, or that geeks are struggling over a pecking order. The IP issues we have touched on in this chapter will affect every user, and every reader of books, newspapers, and magazines, every TV and video viewer, every music listener, and every researcher or library user because our lives will increasingly be pulled into these Internet and computing devices.

These issues are already political, and the proprietary software vendors and IP conglomerates have already structured their own political answers ó the DMCA and UCITA ó to questions that most citizens scarcely realize exist. For the moment it is the Open Source community that is facing them, but it is time for everyone to become better informed and more deeply involved, whatever opinions they may form on the subject. You may even find yourself joining the Open Source community.

Table of Contents

Copyright © 2000 by IDG Books Worldwide, Inc. Published under IDG Books Worldwide, Inc. Open Content License.