Archive for the ‘Intellectual Property’ Category

I’ve mentioned before in my blog, the copyright law that was meant to come into force in my home country, and the relevance it had for international copyright protection efforts. Just as a brief reminder – the law was supposedly going to make it harder for people to breach copyright, but in the process it went against some fundamental justice principles (like innocent til proven guilty) and made parties like ISPs effectively responsible for something they shouldn’t have been responsible for. The “black-out” campaign bought international attention to the issue and the consequences it might have for the future of copyright law and internet use.

So I am pleased to be able to provide this link to the latest news that the offending section has been removed. I will watch what replaces it and continue putting up any relevant and interesting updates.

Thank you to everyone who supported the black-out campaign 🙂

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blacked-outThis post is directly related to the one below it, but going a step further to try to raise awareness of the wider implications of this badly constructed law which effects New Zealander’s at this point in time, but could easily become a wider adopted policy that could hurt you directly too. Please help us. Join us in the Black-Out, save the Internet. Click the links below. Thanks.

The Black-Out Campaign

The Lights are going out all over Twitter


Edit: Most recent news item about the protest and the offending Bill: “Copyright Protesters say Law ‘Stripping Rights'”

Cartoon: Pirating the Justice Sytem

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I’ve only recently come across a blog entry about a law that is meant to come into force here very soon – one that makes ISPs cut off Internet access once a customer has infringed copyright more than once, via their Internet service. It’s seen as a highly controversial move, mostly turning on the issue of proof of the infringement. The infringements (as the Bill currently stands) do not have to be proven in a court of law.

This is just one more effort to counter the intellectual property issues plaguing the Internet – the sort of issues that Second Life residents face every day. In my personal opinion this is a misguided approach to the issue that causes more problems than it will solve. A previous blog post of mine talked about the bad laws that often get implemented to try to cover new technology, and I think here we have a prime example of that typically haphazard and unprincipled approach. Part of the extended debate on this particular issue is whether other countries will follow our “bold lead”… one can only hope not.

This is an issue I intend to return to in more depth soon since the law is due to come into force at the end of this month, I will keep an eye on it’s progress and reception. I will also take a more in-depth look at the rest of the Act since it is entirely about “New Technologies” and copyright. If you’d like to have a look at the original Government press release about the Act, you’ll find it here.

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I’m going to come at this discussion from a legal philosophy point-of-view (because that’s how my mind works). One of the lines of debate about whether the suit of defamation (suing someone because they defame you / hurt your reputation) should exist or not, turns on the fact that you are trying to protect something in other people’s minds. Let me try to clarify that a bit: When you try to protect property you are protecting a real entity – it can be held, valued, transferred. But reputation is in other people’s heads – you cannot own what other people think and have no right to control what other people think. So why should you be able to sue when someone damages your reputation? You do not own or control your reputation, it is not “yours” in any meaningful sense of that word. Which brings me directly to what I want to write about here: Popularity, in a more general sense than just a reputation with a potential monetary value attached.

If you hear me calling someone popular, be careful to not assume that I think they are well liked. I readily use the term in two senses: The more common use of “well liked by a large number of people”, as well as the less qualitative sense of “known of by a large number of people”.

In either use of the term my point will be the same: In the same way pointed out at the start of this piece that you are not “owed” your reputation, neither are you owed your popularity. Even if you put a lot of effort into creating it, building it up, grooming all the right people to know (and maybe like) you, it is still an image other people have of you only in their heads and thereby you do not own it. If you want to get technical and say “aha, but what about trade marks and other intellectual property!” I would take this chance to remind you that those things exist in some concrete form – visual, written, software etc – and so are not strictly analogous. If I was going to be a pain in the arse I’d get started on the debate as to whether intellectual property should exist as an extension of this discussion but then I’d end up writing a thesis and nobody wants that.

The tricky thing is that popularity and reputation are very powerful beasts: They allow you to influence and at times even control those around you – whether through kindnesses or threats based in the popularity you wield. And for that reason they can be quite dangerous as well. In turn it is also very fickle – it can be gained over-night through relationships or events, and can be lost just as quickly. Such a powerful thing that can be gained and lost that easily, makes it an interesting and important subject.

The people who crave it the most and try to sleaze their way to the top – through using or hurting people as suits their desire, getting their claws into other popular people (which is under the heading of user more often than not), or creating controversy just for the attention – can go quite far but will usually end up in my second categorization: They are well known but unlikely to be widely liked, will have to consistently work in these ways just to maintain their popularity, and these people will simply never be as powerful as people in the “truly” popular group: The widely loved ones, who people defend even if it risks their own status and uses up their own resources. More often than not the truly popular are aware of the power and position they hold but will be smart enough to not take it for granted or particularly flaunt it. People really don’t like being used, and don’t like being thought of as just a pillar for someone else’s temple, they’ll put up with it often until it is waved in their faces or taken for granted. Because that is the nature of popularity: The power is in the heads of the numbers of people who listen to and like you, and the moment you forget that and act like you’re entitled to it, watch it start to slip away.

Popularity built on skills and kindness are the sorts to last the longest – skills create items that people can value independent of the person creating it, and kindness is remembered and treasured by the effected individuals, long after the act is done. These are what I would call “deserved popularity”. There are also some people who just ooze charisma (I love that word) out every pore, and you find yourself drawn to them in ways you can’t explain. There’s just “something” about them which makes you want to be near and liked by them. Throw that factor in with skills and kindness and you have a pretty damn powerful combo on your hands. It’s rare but you do find these people at points in your life and they make you think that their popularity is somehow carved in stone. But it’s not, no one’s is.

In Second Life, just like in first life, people still clamour to be popular – to have that powerful beast under their control. Whether it’s because they want to be noticed or think it’s easy money or just desperately want to be liked by the masses, whatever the the motivation, becoming popular is a very popular pursuit. And it is an intensely ugly trait in my eyes when people actively go after it – not grown from skills they have or kindnesses they’ve done, and not thrown upon them because they have that “wow” factor, but they nevertheless relentlessly chase it. I suppose we all hunger for slightly different things in our lives, but to chase popularity as an end-point is something I’ve never liked in people, and I will purposefully and consciously avoid doing anything personally to help them achieve it, because that feels an awful lot like being used to me.

There is more I could and should write on this topic: The responsibility that arguably comes with popularity in particular. But the point I wanted to make in this post is just this: You are not owed popularity, it is something that exists within other people’s minds, disrespect those people – use them, treat them like nothing, abuse the power you have over them – and you’ll come to realise that in short measure. Your popularity might last for a while, existing on the insubstantial grounds of controversy and my second sense of popularity, but it will not last long and when it’s gone, don’t expect to have a lot of people there to catch your fall. But nurture the the people who have put you on that pedestal – give them time and love and respect – and there is no limit to where that popularity could take you.

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When I was doing my law degree I unfortunately chose not to do the course on Law & Technology (it had too much internal assessment required and a lot of it had to be done online – I didn’t have regular Internet access so that was a no-goer). I did however inevitably get exposed to bits and pieces of the theory behind it through my other courses – like Evidence and Intellectual Property. One of the technology-and-law related things that I got shown intrigued me and stuck with me, and I think it’s incredibly relevant to Second Life. And I’m going to share it with you, you lucky wee things.

When new technology emerges it is essentially unregulated. Some law will exist that can be stretched or interpreted to cover it – such as trying to apply classic copyright law to digital images. This is often awkward though, and applied in an inconsistent way. A body of law will slowly build up through the court system and there will come a point when the government steps in to regulate “properly” – through new express statutes that either clarify how current law applies to the new technology or (and more likely) creates entirely new law to cover it. The government usually steps in under pressure from lobby groups, and they sometimes even listen to the legal fraternity (shock horror).

The pressure groups should be familiar to you, they say things like “but think of the children!” and “zomg, no, people have freedom!”. And don’t lose sight of the effect of regulation that is of most interest to the government: tax revenue *nahm nahm nahm*.

Now that I’ve told you the theory (and it does seem to hold true in my observations), I’m going to tell you what I think of it and where I think things go wrong in the regulation.

Law should be based on core unchanging principles that can be applied to any new situation. Figuring out how it applies can take a while, but it does not require entire new swags of law to deal with it: Law that comes out of the nothingness like that often ends up contradicting other areas of the law and being counter-intuitive. You often get a flood of new law coming out to fix the new technology, and it tends to whittle down to something more sensible and concise over time, but you still seem to end up with a bunch of silly over-complicated laws trying to cover discrete situations instead of being based on the application of core principles. Intellectual law in the virtual environment seems to be going through this process right now.

You’ll always get a bunch of anarchists saying “leave my new technology alone, man, this is the way of the future, we don’t need no laws” (throw in a few extra “dudes” too). I sympathise with this to a point: I agree that freedom is awesome and society is way over regulated, but there is good law and bad law – don’t throw the baby out with the bath water. For a while this view is very popular, and it was true of the Internet too. It was quite popular for people to state that the Internet was the great unregulated world of the future and that law should never touch it. It was quite popular. These days people who hold that opinion are slowly but surely becoming the minority and people are becoming more aware of the trend I’ve told you about: That with new technology will eventually come regulation and law – it appears to be an inevitable process of progress.

Each side ends up accusing the other side of being stuck in the past: The anarchists think the law-lovers are not realising the “true nature of the Internet”, while the other side think the anarchists need to realise that law doesn’t magically stop existing just because some new technology was discovered – that it is rather the anarchists who are stuck in the past in thinking the and not realising that the Internet (for instance)  is part of the world and people’s real lives too. Both sides thinking they see the “true nature of the Internet” and trying to convince the other of who’s right.

Don’t forget too that new technology will evolve to be able to control the new technology that was at issue. Let me make that clearer: The Internet supposedly gave people anonymity and the ability to get away with all sorts of things that would have been illegal in the real world. But the ability to trace people and their behaviour, to lock down their identities and thereby hold them accountable, has similarly evolved. Does anyone still think they are completely anonymous just because they’re behind a computer screen? It definitely used to be the popular opinion. In turn governments find ways and permissions to trace your money as it moves around the Internet so they can tax you “properly”.

All of this applies directly to Second Life of course. I’ve already mentioned here the issues of intellectual property and tax, but don’t forget what happened to gambling there too. And I have no doubt you can think of more Second Life specific examples. The application of intellectual property to Second Life needs a heck of a lot of work – there is a lot of clarification and cleaning up required here, in fact I believe it is the unpleasant and confusing mix of over-regulated and under-enforced. Gambling should have never gone from Second Life, the plonkers – it was fun and I miss it. Remember how everyone was saying Second Life would die when gambling went..? I’d love to see what actually happened to their user numbers and profit when it went.Gambling is of course tied up with taxes *shudders*and morality. Taxes and morality are huge discussion areas that require whole blogs to themselves, I’ll tackle those separately some other time.

I’ve followed this pattern of behaviour for new technology and the internet at a local level too – particularly in regards to a New Zealand website called http://www.trademe.co.nz, it’s essentially our version of E-Bay. It is apparently the most used New Zealand site. It started off a free haven with very few restrictions but the restricted and immoral items (porn and alchohol for instance) got cracked down on, and soon enough the government started rubbing its hands together with it realised how many household wives were making money off selling their old books and children toys to other household wives *shock horror*. There are lots of people making real money off it too of course but lots of small timers were suddenly having to calculate their earnings and decide if they were selling for profit etc as the tax collectors made their rumblings and settled in for evermore. I’m sure you have some local examples and experiences too, feel free to share them.

So where does that put us now? The great thing is we have the chance to effect and direct this process since it’s ongoing. The regulation and application of law will happen, let’s accept that right now. Instead focus on what we want it to look like; there is good law and there is bad law, the trick is trying to make it the good kind.

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Not that long ago I was complaining about unsolicited spam via Second Life residents… well it seemed very topical and apt that I just came across this story about people receiving a hefty fine for email spamming, under New Zealand law: http://www.scoop.co.nz/stories/PO0812/S00291.htm .

What I’d like to know is how much they actually made from the spamming – and whether the money was made from people paying them to spam, or from people replying to the spam with money (or a mixture of both). I came across a far too cryptic sentence in one of the 4 or so news reports I encountered that said: “Trading under the name “Sancash”, the men are accused of sending more then 2 million unsolicited messages in a three month period last year. In that time, $1.6 million was paid to Lance Atkinson.  He then paid affiliates.” Taken from this version: http://www.3news.co.nz/News/NZ-spammer-hit-with-100000-penalty/tabid/423/articleID/85305/Default.aspx?_cobr=MSN . I’m not sure how to read that, but either way you’re looking at a lot of profit, right?

I will follow the story as it progresses – which it will do considering the other parties who have chosen to take it to court – and will report on it as I hear about it here, because I know I’m not the only one who has had enough of the spam-merchants.

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A while ago I said I would be posting about Intellectual Property as it applies to Second Life, drawing from both my Philosophical and Legal background, as well as my experiences. Numerous fun things like my Twilight Gallery showing and my wisdom teeth being yanked have managed to postpone the series, but it has been a constant thought in the back of my mind and this is the first proper return to my intentions.

I want to start off where I think a lot of arguments get lost. You’ll find a lot of people talking about “this is the way of the future, no more property restrictions!” or “only the big companies are being harmed so no foul” or “if you can get away with it, you should”.  When these justifications / excuses / explanations for breaches of intellectual property rights are made, you have to realise where such people are coming from, otherwise you will end up both talking completely past each other, with neither party making any headway towards persuading or altering the behaviour of the other. So I want to start slowly with the foundations of Intellectual Property, which will help untangle such messes.

As remedial and annoying as it may sound, you have to know why you have Intellectual Property laws in the first place. Is it your opinion that they are rules merely to protect the interests of the ruling class as all laws are (such as the Critical Legal Studies movement will espouse)? Are they laws without any basis in reality – able to be changed at the law makers whim, reflecting nothing more meaningful than driving on the left instead of the right hand side of the road? Are they economic rules, aimed at protecting commercial transactions? Perhaps they are purely consequentialist rules in your opinion, only useful and justifiable if following them leads to a better life for the majority of people?

The problem is, most people don’t think from the starting point, and if you don’t know what the starting point is, then how can you mount a coherent and meaningful discussion when people from those sorts of backgrounds I’ve just listed above, come to your table with such statements? You are unarmed, and they will win on emotion and rhetoric. As it’s put in some far too oft read philosophy texts “Is morality merely banging on the table?” – is it just a matter of saying louder than the person next to you that this matters and you want to protect it?

Well it is more than that. Intellectual Property is more than table-banging, it is more than about fat cats getting fatter. It is about the foundations of a functioning society, it is about humanity living within a scheme of coherent and meaningful laws that protect the efforts of their bodies and minds. And if you like, you can turn that into a consequentialist discussion about what sort of world we would live in without such rules – for me it will effectively come down to the same conclusion. But the route I choose to tread is to do with the philosophical underpinnings of property, and that is my next intended post on this topic. This has just been an introductory set-up to my next piece, to help you understand the importance and differences between the origins for our reasoning. I will be working up to some quite specific Second Life topics based in Intellectual Property that bug the hell outta me very regularly. But I would be a hypocrite if I didn’t start at the beginning, the way that I wish more people would.

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