Posted on April 30, 2008 in microsoft, OLPC, XO by Brian RoweComments Off

At LinuxFest NW 2008, this last weekend, our OLPC was by far the most popular thing at the FFIP table (second was the bad Vista stickers from FSF). We could have easily sold 10 OLPC’s at Linuxfest if they were available. At the same time we were showing off OLPC, Mircosoft and Negroponte were announcing that they are working together.

“It would be hard for OLPC to say it was ‘open’ and then be closed to Microsoft. Open means open,” Negroponte said.

This statement perplexes me, this is like saying “It is hard for Culture to be ‘Free’ without DRM.” The only way this would be a good ideas is if the Microsoft OLPC version of XP is open source. Open does not mean closed source the last thing developing nations need is a Vista style debacle on OLPC’s.

Posted on April 30, 2008 in CC, copyright, FOSS, IP, linuxfest NW 2008 by Brian RoweComments Off

Feel free to use or remix them.

Posted on April 28, 2008 in copyright, copysouth, IP, spanish by Brian RoweComments Off

Boletín de prensa 28 abril de 2008
Problemas económicos, politicos e ideológicos del copyright
(derechos de autor) en el Sur global Investigado y publicado por el Grupo de Investigación Copia Sur Mayo 2006
ISBN: 978-0-9553140-1-8 (de la 1ª edición impresa en inglés)
No restringido por el copyright

We are told that we live in the ‘digital revolution’ era and that we can communicate across the globe as we never could before. In fact, restrictive copyright laws still act as a serious barrier to sharing and learning from each other. This is particularly true in countries of the South where three quarters of the population live.

PS my favorite image from the site is the instructor mug shot:

Posted on April 26, 2008 in Fossology, HP, IP by Brian RoweComments Off

How FOSSology can help untangle the open source software licensing mess and more!

Fossology is the study of open source licensing and FOSS. The FOSSology project started out as an internal development effort at Hewlett Packard. HP is partnering with the Linux Foundation to provide an online tool and data repository for tracking and analyzing open source software and associated licenses.

Dan’s presentation explained the basics of how the FOSSology tool works. Most of the questions from the audience were focused on the legal ramification of the tool. This could be a powerful tool for assisting in litigation of license violation.

A new bill on orphan works is about to be introduced in the Senate Judiciary Committee. Following please find a press release on the bill; a statement from Sen. Leahy, who is sponsoring the bill along with Sens. Berman and Hatch; and a summary of the bill. The actual text of the bill should be available on THOMAS very soon. Hat tip to Dr. Meredith Patterson for her sleuthwork in getting this info!

Judiciary Leaders Introduce Bipartisan, Bicameral Orphan Works Legislation

Leahy, Hatch, Berman, Smith Introduce IP Legislation

WASHINGTON (Thursday, April 24, 2008) – Leading members of the Senate and House Judiciary Committees today introduced bipartisan, bicameral legislation to preserve so-called “orphan works” – works that may be protected by copyright, but whose owners cannot be found. Potential users of orphan works often fail to display or use such works out of concern that they may be found liable for statutory damages, amounting to as much as $150,000.

Legislation to address those concerns was introduced today in the Senate by Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Sen. Orrin Hatch (R-Utah), a senior member and former chairman of the panel, and in the House by Rep. Howard Berman (D-Calif.), chairman of the House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property and Rep. Lamar Smith (R-Texas), ranking member of the House Judiciary Committee. The bill is co-sponsored in the House by Judiciary Committee Chairman John Conyers (D-Mich.) and Rep. Howard Coble (R-N.C.) The legislation would enable users to exhibit orphan works if, after a thorough, documented search, the copyright owners are unable to be located. The legislation outlines the criteria for such a search, and provides for court review to determine if a search has been adequate and done in good faith. If the copyright owner later emerges, the user must pay reasonable compensation to the owner. The bill also includes provisions to further protect owners of these orphaned copyrights, should any user exhibit bad faith.

“This legislation will help bring together potential users and owners of orphan works,” said Leahy. “But also as important, it will allow the public to view works that may remain orphaned. A Vermonter can restore a family photograph from three generations ago, even when the original photographer is no longer available to give permission. With this bill, we can preserve important parts of our personal and national heritage, without giving a free license to infringe on established copyright protections.”

“There are thousands of artistic creations around the country that are effectively locked away and unavailable for the general public to enjoy because the owner of the work is unknown. Identifying the owner of a copyrighted work is difficult in many cases and represents a huge liability to those who would bring the work into the public domain without permission,” Hatch said. “This bill represents a commitment from Congress to unlock orphan works so the general public may once again enjoy them.”

“Too many valuable works are unused because their creators are unknown, and potential users fear excessive liability,” said Berman. “We must act to lower the legal barriers that keep these works from the public.”

“Millions of copyrighted works are effectively ‘locked up’ and unable to be enjoyed by the public due to our current copyright system,” said Smith. “As a result, investments in new works and expositions by libraries, museums and others are frequently not undertaken due to the possibility of lawsuits and large statutory damage awards. By placing reasonable limitations on liability, while ensuring that owners receive compensation for the use of their works, the bills introduced today will help reduce uncertainty and encourage creativity.”

Leahy, Hatch, Berman and Smith have longstanding interests in intellectual property issues, and have introduced copyright legislation in the 110th Congress, including a bipartisan, bicameral bill to reform the patent system.

Statement of Senator Patrick Leahy

On Introduction of the Shawn Bentley Orphan Works Act of 2008

April 24, 2008

Today, I join once again with Senator Hatch to introduce a bill that will have a significant and positive impact on our cultural heritage. Hundreds of thousands of so-called “orphan works” – works that may be protected by copyright, but whose owners cannot be indentified or located – are collecting dust. Despite tremendous interest in using these orphan works in new collections and new creations, they often languish unseen, because those who would like to bring them to light, and to the attention of the world, fear the prospect of prohibitively expensive statutory damages. In other instances, the copyright in an orphan work may have expired, but potential users lack the information to be certain of the propriety of going forward with its use.

The Shawn Bentley Orphan Works Act of 2008 will remedy this situation. It will help potential users of orphan works find the owners of those works, and it will help the owners to receive compensation. The works will no longer be orphans; their owners will reap the financial benefits of their use, while the public reaps the creative benefits. More creative works will be used, contributing to our cultural and artistic heritage, and more creators will receive compensation for use of their work.

Our legislation permits the use of an orphan work only if the potential user performs and documents a good faith search for the copyright owner. If users cannot locate and contact copyright owners, they may use the orphan work. But if copyright owners later make themselves known, and if users have performed a search that qualifies under this legislation, owners are entitled to reasonable compensation. The user will not be liable for full statutory damages in those circumstances, but if a user does not perform that good faith search, the user will face up to $150,000 in statutory damages.

In practical terms, then, what does this mean? It means that a woman in Vermont can restore a wedding photograph of her grandparents, even if she cannot locate the photographer to get permission to do so. It means that a library can display letters of American soldiers wrote during World War II, even if the library cannot contact the soldiers or their descendents. It means that museums can exhibit Depression-era photographs, even if they cannot determine the name of the photographer.

What this bill does not do is create a “license to infringe.” In any of the above instances, if the users do not conduct a good faith search for the copyright owner, those users are in the same boat they are in now when it comes to infringement. This bill does not change the basic premise of copyright law: If you use the copyrighted works of others, you must compensate them for it. As an avid photographer, I understand what it means to devote oneself to creative expression, and I applaud anyone with the talent and commitment to make a living doing so. Orphan works are too important to our families, our communities, and our culture to go left unseen and unused.

I thank Senator Hatch for his help in developing this legislation, and I look forward to working with him to ensure that this bill becomes law. I am especially pleased to name this bill for Shawn Bentley. Several years ago, Shawn died, tragically young, but he left behind a legacy of affection and regard for all of us who knew him. He served Senator Hatch as a counsel for intellectual property, and it was he who first inspired this effort on orphan works. Naming this bill for him is a testament to his dedication to the issue, and his value to the Judiciary Committee.

I ask unanimous consent that the full bill text be included in the Record.



For Background


Sec. 1. Short Title. Cited as the “Shawn Bentley Orphan Works Act of 2008”.

Section 2. Limitation on Remedies in Cases Involving Orphan Works.

In general.—The Act creates a new section 514 of title 17, which provides a limitation on remedies in certain instances of copyright infringement in which the user of the work is unable to locate the owner of the work despite having conducted a diligent search.

Conditions on eligibility. To qualify for this section, a user must (1) perform and document a good faith – but ultimately unsuccessful – search for the owner of the copyright in the work being used prior to such use; (2) provide attribution if the identity, but not location, of the owner is known; and (3) include with the use of the infringing work a symbol, indicating the author was not located, in a manner the Copyright Office will prescribe.

Pre-litigation requirements. If the owner later emerges and provides notice of infringement to the user, the user must negotiate reasonable compensation in good faith and render any such compensation agreed upon in a timely fashion.

Requirements in litigation. If the owner files an action for infringement, the user must assert the right to a limitation on remedies under this section in its initial pleading; consent to, or be held to be subject to, the jurisdiction of the court; and provide documentation of the qualifying search to the owner at the time of the initial discovery disclosures.

Qualifying searches. A court, in determining whether a search is diligent, shall consider factors including whether (1) actions taken in a search are reasonable and appropriate in a given situation, (2) the infringer employed the applicable best practices maintained by the Copyright Office, and (3) the search took place immediately prior to use. The fact that a work lacks identifying information pertaining to the owner is not sufficient to meet this standard.

The Copyright Office is charged with maintaining publicly available statements of best practices. The statements of best practices may include using Copyright Office records, private registries, industry practices and guidelines, technology tools, and electronic databases, which may require a charge or subscription fee.

Limitation on remedies. If the user qualifies for a limitation on remedies under this section, but the user and owner do not agree on reasonable compensation, a court may determine and award reasonable compensation, defined as the amount to which a willing buyer and a willing seller would have agreed immediately prior to use.

No award of damages may be made if the user is a nonprofit educational institution, museum, library, archive, or a public broadcasting entity and such user can demonstrate that the infringement was not performed for direct commercial advantage; the infringement was primarily educational, religious or charitable in nature; and, the user promptly ceased infringement after receiving notice. Proceeds directly attributable to the use may be awarded to the owner.

A court may impose injunctive relief except in the case of a work that has been recast or integrated with a significant amount of the infringer’s original expression.

The limitations on remedies under this section are not available if the infringer asserts it is not subject to the courts of the United States for an award of damages and refuses to pay reasonable compensation.

Preservation of other rights, limitations and defenses. This section clarifies that other rights, limitations and defenses, such as fair use, are preserved and ensures that if a statutory license is applicable to the use, that provision applies instead of this section.

Derivative works and compilations. This section clarifies that a user who qualifies under this section shall not be denied copyright protection in a compilation or derivative work based on the orphan work contained in the compilation or derivative work.

Section 3. Database of Pictorial, Graphic, and Sculptural Works. The Copyright Office must create and undertake a certification process for the establishment of electronic databases of visual works. Certain requirements for any such registry are prescribed. The Copyright Office will post a list of all certified registries on the Internet.

Section 4. Effective Date. The Act has a staggered effective date. For pictorial, graphic, and sculptural works, the effective date will be the earlier date of (a) the date on which the Copyright Office certifies at least 2 separate registries under Section 3, or (b) January 1, 2011. For all other works, the effective date will be January 1, 2009.

Section 5. Report to Congress. The Register of Copyrights must report to the House and Senate Judiciary Committees on the implementation of the Act by December 12, 2014.

Section 6. Study on Remedies for Small Copyright Claims. The Register of Copyrights must conduct a study to determine the feasibility of instituting a small claims procedure for instances of infringement involving smaller amounts of monetary relief. The Register shall present a report on the study, including any legislative suggestions, not later than 2 years after the date of enactment.

Section 7. Study on Copyright Deposits. The Comptroller General must conduct a study examining the function of the deposit requirement in the copyright registration system and report to Congress within 2 years after the date of enactment, making any administrative, regulatory or legislative recommendations.

Posted on April 23, 2008 in FOSS, IP by Sarah DaviesView Comments

“You can touch my boobs,” she said to all of us in the hallway. “It’s no big deal.”

Livejournal is in a rage today over this post and this clarification.

Apparently there was a mixed-gender group of people at ConFusion and then later PenguinCon who put forth the idea that people who support open content and open software might be amenable to consensual open sexuality, specifically getting felt up.

As I have two X chromosomes and I’m attending LinuxFest Northwest this weekend, I feel obliged to comment.

There is definitely a lack of diversity within the American open source community, particularly gender diversity. There is certainly awkwardness and avoidance around the topic of sexuality. I don’t think either of those things are healthy. Humanity is diverse and sexual. The open source community would do well to accept this fact and attempt to rectify some of it’s shortcomings.

I think that many women agree with open source principles, if only because women tend to be more liberal and idealistic than men. And what is open source if not liberal and idealistic? Women do not, however, feel (generally) that their time is best spent debugging code for hours on end. What the open source community has failed to emphasize is the plethora of non-coding work that needs to be done. We need graphic designers, god help us. We need people to manage projects, to come up with new features, to do usability testing.

I have known very few other women who code. I have known many women, however, who enjoy spending their volunteer time building community tools. We, as the open source community, must reach out to these women and invite them into our projects and our conventions.

As far as sexuality is concerned, I think this problem is not specific to the open source community. This is a problem with America in general. We focus on sexuality as the pinnacle of self-worth, and the bottomless pit of sin. The open source community is built of smart people, and my hope is that they will outpace the general public in ridding themselves of these perceptions, but I think diversity of gender and sexual orientation must be a precursor to that exorcism.

Posted on April 23, 2008 in ESP, FSF, in re Bilski, Patent, WSPLA by Brian RoweComments Off

Myriad amicus briefs (read 30 and counting) have now been filed regarding Bilksi. On the two extremes of this debate are patent lawyers and the Free Software Foundation.

Washington State Patent Law Association (WSPLA) filed a brief defending Bilski and asking for the CAFA to reaffirm and rewrite State Street Bank to be consistent with recent SC rulings. This brief is aimed at merely expanding subject matter under Section 101.

A “process” entails an act or a series of acts performed upon a subject matter, or a mode of treatment of certain materials to produce a given result. When considered as a whole, a process must be new and useful in that it must be manmade and not exist in nature, and it must be practically useful. Such a process does not have to result in a physical transformation or be tied to a machine, although such provisions are indicator of patent eligibility. -WSPLA Summary of Argument

This wide reading of patent law ensures that lawyers can patent any “use” process, but does not provide any balance for the public interest. Additionally the WSPLA wants to extend Diamond v. Dieher to provide support for patenting mathematical formulas:

the use of the Arrhenius equation in the claim was not an unapplied mathematical formula; rather, it was part of an application to cure rubber. Second, even though a computer wasn’t needed in the process of curing natural or synthetic rubber, if the use of the computer incorporated in the claimed process significantly lessened the possibility of overcuring or undercuring, the process as a whole did not become unpatentable subject matter. Diehr, 450. WSPLA Brief at 8.

Misreadings of cases including Diamond v. Diehr have expanded the scope of patent law to include mathematical formulas when they are used with computers. If we can not use mathematical formulas with computers, or calculators which is what computers are essentially, then where can we use them? The idea patenting mathematical formulas by simply adding a step that runs the formula on a computer is ridiculous at best.

End Software Patents
On the other side of the patent debate, Free Software Foundation’s End software patents campaign filed a brief arguing that Bilski is the perfect opportunity for the CAFC to examine software patents:

The conclusion of Diamond v. Diehr, 450 U.S. 175 (1981)
directly reiterated the above, while on the other hand
acknowledging that bona fide patent-eligible inventions may
include a software component. It is well worth reprinting the
bulk of the conclusion:
. . . . A mathematical formula as such is not accorded
the protection of our patent laws, Gottschalk v. Benson, 409
U.S. 63 (1972), and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular
technological environment. Parker v. Flook, 437 U.S. 584
(1978). Similarly, insignificant postsolution activity will not
transform an unpatentable principle into a patentable
process. Ibid. To hold otherwise would allow a competent
draftsman to evade the recognized limitations on the type of
subject matter eligible for patent protection. On the other
hand, when a claim containing a mathematical formula
implements or applies that formula in a structure or process
which, when considered as a whole, is performing a function
which the patent laws were designed to protect (e. g.,
transforming or reducing an article to a different state or
thing), then the claim satisfies the requirements of § 101. . .
Id. at 191-92 (notes omitted, emphasis added).
In all cases, the Court expressed disdain for allowing
patents on software loaded onto a standard computer, repeatedly
referring to it as an “insignificant,” “conventional or obvious”
modification of the base formula.
ESP Bried at 6. (emphasis added)

I agree with FSF’s reading of Diamond v. Deihr which severely limits all software patents. Running a mathematical formula on a computer is obvious. Computers do calculations better than people. I hope to see the Supreme Court take up this issue along with the State Street Bank precedence, ruling that if a mathematical formula or process is not patentable without a computer then merely adding a computer to do the same thing more efficiently does not create patentable subject matter or overcome the obviousness requirement.

Related links:

Washington State Patent Law Blog on the Washington Patent Lawyers Brief

Patently-O’s list of 30 In re Bilski briefs

End Software Patents Brief

Washington State Patent Lawyers Association Brief

Posted on April 19, 2008 in copyright, IP, linuxfest NW 2008 by Brian RoweComments Off

Copyright 101Title: Copyright 101 for Coders

Date: Sunday, April 27th

Time:10:00 AM

Location: Haskell-111, Bellingham Linuxfest Northwest

Abstract: What is copyright? Where did it come from? How long is it? How do I use it or opt out? This presentation will focus on the basics of copyright and how it applies to code. Topics will include: a short history copyright, the current opt out system, DMCA 101, first sale doctrine, basics of licensing, EULA’s, public domain, share alike provisions, and attribution. Feel free to ask questions at any point.

Oregon SealOregon does not want people to copy or distribute the law!? Do they not want people to actually find or read the law or even make the law accessible to people with disabilities?

Oregon, represented by legislative council Dexter A. Johnson, has sent out DMCA takedown requests to free services that provide copies of the Oregon Revised Statutes online.

Oregon is claiming that they have made the code avalible through their own website and have the right to sell the law to other for distribution.

There are several problems with this:

    • The Oregon state website is terrible. The site does not meet the core basic requirements of the HTML standards, it has no meta data, poor search features and weak display options.
    • The Oregon website is not accessible to people with disabilities. It fails to meet Section 508 accessibility requirements.
    • There is a strong fair use argument for anyone that republished the law adding to the public welfare, especially if they are not charging for access.
    • The law is not copyrightable:

      “No one can obtain the exclusive right to publish the laws of a state in a book prepared by him. This general proposition cannot be doubted. And it may also be said that any person desiring to publish the statutes of a state may use any copy of such statutes to be found in any printed book, whether such book be the property of the state or the property of an individual”
      Howell v. Miller, 91 F. 129 (1898)

      I hope that Oregon sees the error in their ways and starts helping people that are working to make the law usable and accessible instead of wasting time on frivolous copyright claims that only harm the people. Copyright was created to encourage people to create new works, not to hide the the law from the people.

      Related documents

      Takedown letter:

      Carl Malamud of has written a great letter back to Oregon explaining why the takedown request is not valid and contray to public policy:

      Read this doc on Scribd: The Honorable Dexter A. Johnson

      If you would like to contact Oregon directly to let them know what you think of thier copyright claim please contact [email protected]

      Legislative Counsel
      900 Court St NE Rm S101
      Salem OR 97301