CNET Touches on Blogs and Copyright Issue

It’s extraordinary to me that, several years into the blogging-and-RSS phenomenon, we still have the issue of a lack of clarity around the permissible re-use of user-generated content, as reported by CNET’s Elinor Mills (“Please don’t steal this Web content“). Fair use is part of the answer; Creative Commons licenses are another part of the answer; social norms are part of the answer; but there’s a layer missing, on top of Creative Commons licenses, to allow for the paid re-use of user-generated content. (Previous posts on this topic linked from here.)  Mills points to Lorelle on WordPress for more.

Public aggregator of blogs for teachers

Another output of our NYSAIS workshop for teachers on using technology in the service of education: a Top10 list that we compiled together of Blogs for Teachers. Send suggestions and we can add them, too! Or create a better list of your own at Top10 Sources.

There’s also a member-created page, by an academic named Robert French, on Edublogs and Eduwikis, which is excellent. Mr. French, who teaches PR at Auburn University, himself keeps a terrific blog.

(Please see my disclosures page if you care to know about my personal involvement in Top10.)

Making a Market Emerge out of Digital Copyright Uncertainty

The digital copyright issue is one of the sidebars related to the Google/YouTube transaction that has merited a fair amount of digital ink.

(For a few examples: don’t miss Fred von Lohmann as interviewed by John Battelle. Declan McCullagh and Anne Broache have an extensive piece highlighting the continuing uncertainty in the digital copyright space and quoting experts like Jessica Litman. Steve Ballmer brings it up in his BusinessWeek interview on the deal, asking, “And what about the rights holders?” And the enormously clever Daniel Hausermann has an amusing take on his new blog.)

My view (in large measure reflected in the WSJ here, in a discussion with Prof. Stan Liebowitz) is that Google is taking on some, but not all that much, copyright risk in its acquisition of YouTube. Google has already proven its mettle in terms of offering services that bring with them a reasonably high appetite for copyright risk: witness the lawsuits filed by the likes of the publishing industry at large; the pornographer Perfect 10; and Agence France Presse. There’s no doubt that Google will have to respond to challenges on both secondary copyright liability and direct copyright liability as a result of this acquisition. If they are diligent and follow the advice of their (truly) brilliant legal team, I think Google should be able to withstand these challenges as a matter of law.

The issue that pops back out the other side of this flurry of interest in the broader question of the continued uncertainty with respect to digital copyright. Despite what I happen to consider a reasonably good case in Google’s favor on these particular facts (so far as I know them), there is an extraordinary amount of uncertainty as a general matter on digital copyright issues in general. Mark Cuban’s couple of posts on this topic are particularly worth reading; there are dozens of others.

Many business models in the Web 2.0 industry in particular hinge on the outcome of this uncertainty. A VC has long written about “the rights issues” at the core of many businesses that are built, or will be built, on what may be the sand — or what may turn out to be a sound foundation — of “micro-chunked” content. Lawrence Lessig has written the most definitive work on this topic, especially in the form of his book, Free Culture. The RSS-and-copyright debate is one additional angle on this topic. Creative Commons licenses can help to clarify the rights associated with micro-chunked works embedded in, or syndicated via, RSS feeds.

Part of the answer could come from the courts and the legislatures of the world. But I’m not holding my breath. A large number of lawsuits in the music and movies context has left us clearer in terms of our understanding of the rules around file-sharing, but not enough clarity such that the next generation of issues (including those to which YouTube and other web 2.0 applications give rise) is well-sorted.

Another part of the answer to this digital copyright issue might be provided by the market. One might imagine a process by which citizens who create user-generated content (think of a single YouTube video file or a syndicated vlog series, a podcast audio file or series of podcasts, a single online essay or a syndicated blog, a photo covering the perfectly captures a breaking news story or a series of evocative images, and so forth) might consistently adopt a default license (one of the CC licenses, or an “interoperable” license that enables another form of commercial distribution; I am persuaded that as much interoperability of licenses as possible is essential here) for all content that they create, with the ability also to adopt a separate license for an individual work that they may create in the future.

In addition to choosing this license (or these licenses) for their work, these users registered this work or these works, with licenses attached, in a central repository. Those who wished to reproduce these works would be on notice to check this repository, ideally through a very simple interface (possibly “machine-readable” as well as “human-readable” and “lawyer-readable,” to use the CC language), to determine the terms on which the creator is willing to enable the work to be reproduced (though not affecting in any way the fair use, implied license, or other grounds via which the works might otherwise be reproduced).

Some benefits of such a system:

– It would not affect the existing rights of copyright holders (or the public, for that matter, on the other side of the copyright bargain), but rather ride on top of that system (which might have the ancillary benefit of eventually permitting a global market to emerge, if licenses can be transposed effectively);

– It would allow those who wish to clarify the terms on which they are willing to have their works reproduced to do so in a default manner (i.e., “unless I say otherwise, it’s BY-SA”) but also to carve out some specific works for separate treatment (i.e., “… but for this picture, I am retaining all rights”);

– It might provide a mechanism, supplemental to CC licenses, for handshakes to take place online without lawyers involved;

– It might be coupled with a marketplace for automated licensing — and possibly clearance services — from creators to those who wish to reproduce the works;

– It could be adopted on top of (and in a complementary manner with respect to) other systems, not just the copyright system at large as well as worthy services/aggregators of web 2.0 content, ranging from YouTube, software providers like SixApart, FeedBurner, Federated Media, Brad Feld’s posse of VCs, and so forth; and,

– It would represent a community-oriented creation of a market, which ultimately could support the development of a global market for both sharing and selling of user-generated content.

This system would not have much bearing on the Google/YouTube situation, but it might serve a key role in the development of web 2.0, or of user-generated content in general, and to help avoid a copyright trainwreck.

Bloglines, RSS privacy problem

A call to action: the security infrastructure for RSS is not where it needs to be for the mainstreaming of this technology to work and to be adequately protective of user privacy.

I was resetting my Bloglines account this morning, adding some new feeds, taking out some that I don’t read, and so forth. I searched on a friend’s web moniker (“Whirlycott”) to find whatever feeds he might be offering. Up popped a feed related to a web-based invoicing service he uses entitled (“[His Name] Invoices”) to which I could subscribe in Bloglines. I am not sure what it would have rendered — I did not subscribe! — but I thought it worth mentioning to him. It turns out he has been mad about this privacy problem for months. His initial post, worth reading and reviving as an issue of public discussion, is here.

I credit the fact that this may not be (just) a “Bloglines issue” but rather an “RSS industry” issue. But it’s a real problem if we are to continue to express ourselves via these citizen-generated media tools that offer RSS feeds, and moreso if we move into the promising realm of using RSS feeds to support other productivity-type tools. The privacy problems that already exist in cyberspace are enough to tackle; we need to get in front of an RSS privacy problem before it grows into yet widespread issue. After this morning’s experience, it’s clear to me it’s already a problem.

(Following the thread a bit, there’s another post in the series, including, some months ago, a note from someone appearing to be with Bloglines saying that they know it’s a serious problem.  How can we fix it, gang?  If it’s not a Bloglines-only issue and it’s a community issue, what has to get done?)

What should Web 2.0 entrepreneurs do about software patents?

I should start off by saying that I am not a fan of the patent system as a means of establishing IP rights in software. My critique of the system is (at least) five-fold: 1) there is widespread evidence that the system of granting claims in the United States, at least, is deeply flawed (see the scholarship of Doug Lichtman, Mark Lemley and others, for empirical evidence and policy arguments related to it); 2) the process is prohibitively expensive for small firms and individuals to have a fair shake when compared to the patent-filing goliaths (witness not just the cost of prosecution of patents, but the $3 – 5 million price-tag of most patent litigation); 3) the extent to which these first two factors and others favor incumbents over newcomers — and potential innovators; 4) there are also special cases, such as the standards-setting processes for software, where these and other problems arise and are particularly acute (Lichtman’s piece on patent hold-outs is helpful here, too, and a bit counterintuitive); and 5) the patent system often works at cross-purposes with the goals of teaching and learning, in contexts including computer science, biotechnology, and so forth (we at the Berkman Center have an active research project on this topic, funded by the Revson Foundation). Others — Terry Fisher, Lawrence Lessig, Yochai Benkler (see pp. 437 – 439 of Wealth of Networks for a particularly strong form of the critique of software patents), Jamie Boyle, for instance — have made these critiques more forcefully and more convincingly than I have; this is not novel stuff. While of course I disagree on some fronts, often at the margins, with each of these scholars, I owe much to the line of thinking that they’ve blazed in all of what I do.

OK, enter the complicating factor: what if you are an entrepreneur who is devoted to creating a wonderful new generative (to use Jonathan Zittrain’s term) technology, say in the Web 2.0 space? One hard problem faces you early in the process. So, you get the part about being part of a development community, building your cool new platform, sharing it in various ways, making a market for your services, and generating a return for your investors. But what should you do about patenting? Say you, like me and others, are queasy about the current patent system (“yuck, I just don’t like them,” or “I don’t want to participate in that mess”), you don’t have much time or money, and you face an uphill battle in your crowded marketplace already. What’s a sensible, reasonably public-spirited, honest entrepreneur trying to make a living and a return for investors (if you’re lucky, or unlucky as the case may be, enough to have them) supposed to do?

Some investors I’ve heard speak or write on this topic — Joichi Ito, Brad Feld, A VC, and others — are opposed to software patents generally. As I noted above, I’m in the same camp. But most VCs do not share this view: IP rights are increasingly viewed as an asset, or as a defensive necessity, or both. Why? Well, some argue there’s a market emerging in patent rights (see Kenn Cukier’s long and provocative piece in The Economist on this score; but see the largely failed Ocean Tomo patent auction). Others believe that patents are necessary to create freedom of action in most fields of software.

This conundrum is real, and I’ve learned a great deal from finding myself caught in it. As with many people who teach, I have “outside activities” beyond my work at HLS and Berkman. Outside activities are good because they help pay the mortgage in the Boston area. They are also good because you learn things about the real world and keep you from becoming an ivory-tower-bound caricature of an academic; my teaching and research are plainly informed by outside work in the technology field. My outside activities have been primarily as an investor in RSS-related technologies and helping real entrepreneurs found companies in this space. Outside activities are a pain in the neck because I, anyway, constantly feel a tension between my academic identity (teacher and researcher of interesting Internet law topics) and my outside-activities identity (investor and participant in the marketplace). Much of this tension can be dealth with through disclosure — more on that in a moment. Nowhere is that tension more acute than in this patent space.

So, here’s the hard question: if you are an entrepreneur or investor who dislikes the patent system (either you want it scrapped altogether for software or you want it reformed), what do you do? Do you sink the money and time into participating, one-off, against the big guys and try to patent what you’ve done; do you sit it out and take your chances; do you license from someone the protective cover of some patents; or do you try to find some other solution? I do not know the answer, but I’m genuinely trying to puzzle it out. There probably is no right answer for every entrepreneur and every part of the software space (think of it as a variant of Terry Fisher’s disaggregation argument).

One other fact to be noted: large companies in the ICT space — IBM, Microsoft, HP, Sun, whomever — have massive-scale patenting operations. Some are newer to the patenting game but getting geared up, like Google. These companies have patent portfolios in the thousands or tens of thousands, with claims many times that many. IBM alone has over 31,000 patents and applies for thousands more each year. In the Web 2.0 space, Apple has begun to publish a series of applications. Google has applied for patents related to embedding ads in RSS feeds. No doubt the Intellectual Ventures team has thought about working in this space, or will soon. These entities are far from alone — patent applications related to RSS and other Web 2.0 technologies are coming out all the time. (Smaller companies, like Technorati, have applications pending as well.) As I’ve written before, there’s a difference between obtaining IP rights and enforcing them, so it’s not certain that this emerging thicket of patents will preclude innovation. Apple may never sue anyone at all for infringement of the many claims that may well be granted to it. But should an entrepreneur run that risk?

Here’s one idea. What about working with other small-scale entrepreneurs to do what the big guys do? What if you were to hold your nose and apply for patents that protect your work; share your patents with other little guys (and gals!); agree to reasonable cross-licensing terms for other entrepreneurs; and create a dual-licensing regime to allow highly favorable (no- or low-cost) licensing terms for .edus and .orgs (to solve problem number 5, above)? This is the idea that Jim Moore has been championing in the Web 2.0 space. He’s got a long and thoughtful post about it here. You may not agree with the strong form of his argument, but it’s very provocative. A company that we’ve both been working with, Newsilike Media Group, has applied for a series of Web 2.0 patents, which will soon begin to be published (as applications, to be clear, not as issued patents). Jim’s idea, which I support as an important experiment in this space, is to try to create freedom of action for start-ups and others in the Web 2.0 space by blazing a trail. While Jim and I disagree on some aspects of this matter — we have a genuine, long-standing, always-spirited conversation going on this score from which I’ve learned and continue to learn enormously — I have to say I welcome his efforts to bring innovative thinking to the space.

A key component of this strategy is to try to innovate in the area of no- or low-cost licensing for non-profits and educational institutions. Patent Commons, Science Commons, and others have been working on similar or related ideas. We should all be eager to learn more about this line of thinking. I think it’s brilliant. I very much hope that entrepreneurs will one day have an easy way to subscribe to a license — just like a Creative Commons license for copyrighted works — to give away some or all of the IP rights that you’ve obtained. Maybe it’s limited to certain classes of users (the .org and .edu idea), or fields of use, or the like, but allowing you to stand behind your beliefs while competing on reasonable terms in the marketplace. I’d love to see a way where the little guy doesn’t have to unilaterally disarm him or herself, but can do so in a way that lets him or herself sleep at night.

I am wondering what Yochai would say about this idea as a practical matter. In Wealth of Networks, he writes: “Even if the patent owner has a very open licensing policy — say, licensing the patent non-exclusively to anyone without discrimination for $10,000 — most free software developers will not be able to play.” He continues, “If working on a problem requires a patent license, and if any new development must not only write new source code, but also avoid replicating a broad scope patent or else pay a large fee, then the conditions for free software are thoroughly undermined.” (p. 438). So, if you buy this argument but you also live in a future in which large companies get broad claims via their Web 2.0 patents, what, absent reform that anti-patent people would support, should the entrepreneur do? To me, it’s a hugely vexing problem that requires innovative thinking, challenging the “yucky” feeling many of us have about software patents and honing in on short-, medium- and long-term solutions.

(One further, personal note: I’ve long had on my disclosures page my Personal Patent Profits Pledge: if I make money from any patent activity that is not consonant with my beliefs as to what is good public policy, I pledge to donate those profits to the Berkman Center or a similarly-situated institution that is working on the study and appropriate reform of the patent regime.)

There is much more to be said and learned on this topic. I welcome debate and critique; I think that the cyberlaw community, myself included, has been so focused on copyright that we haven’t delved as deeply into patent (and trademark and trade secret, perhaps, too) as we might. I look forward to participating actively in a pro-innovation, good-for-the-entrepreneur, good for society-at-large outcome. Is there a form of software patenting that can help drive innovation, not frustrate it?

* * *

Addendum, with thanks to Phil for a pointer, here is a bit of a terrific short essay from Paul Graham’s “Are Software Patents Evil?“, which covers much of the same ground:

“Do patents encourage or discourage innovation?

“This is a very hard question to answer in the general case. People write whole books on the topic. One of my main hobbies is the history of technology, and even though I’ve studied the subject for years, it would take me several weeks of research to be able to say whether patents have in general been a net win.

“One thing I can say is that 99.9% of the people who express opinions on the subject do it not based on such research, but out of a kind of religious conviction. At least, that’s the polite way of putting it; the colloquial version involves speech coming out of organs not designed for that purpose.

“Whether they encourage innovation or not, patents were at least intended to. You don’t get a patent for nothing. In return for the exclusive right to use an idea, you have to publish it, and it was largely to encourage such openness that patents were established.”

Worth reading in full.