Google seeks patent for new API

Google is seeking to patent what slashdot calls “exponential social spamming”. This consists of a set of APIs (Application Programming Interfaces) that Google has dubbed OpenSocial. These APIs will allow developers to just learn one API and then write applications for social network sites like Orkut, LinkedIn, MySpace and so on. As theodp on Slashdot points out, this means that the reach of any given promotional application has the potential to expand its reach exponentially by being usable across all the potential networks.

Regulating the internet: 19th century industrial policy rehashed?

A fairly recent article by James Delong in the AEI Journal provides an interesting perspective on the regulatory dilemmas of the internet age. As it turns out many of the issues faced by prospective regulators of electronic commerce have precedents in the industrial era. These commonalities are not entirely obvious but are quite compelling if examined. As Delong points out in his article, much of the infrastructure built up in the 19th century was characterized by a network/platform dynamic. The basic idea behind this network/platform concept is quite simple. A railroad faces very high fixed costs (the cost of construction) but once up and running the marginal cost of operating the railroad given sufficient use can be quite low. The railroad or network can use this cost structure to the detriment of network users who are dependent on it. A farmer along the railroad line is an example of a network/platform user. The individual farmer, a user dependent on the network, could potentially fall victim to the railroad which will seek to extract virtually all of the farmer’s surplus from the transaction. In the 19th century it was commonly observed that short-haul rates which lacked inter-railroad competition were exceedingly high. Another example offered by DeLong is that of a farmer who buys land near a railroad only to see his shipping costs skyrocket after the farmer has committed resources to the land in question.  Similarly in the internet age the advent of large networks (like Windows for example) which face high fixed costs but low marginal costs could put network users in a bind. Network users, like individual application creators for the iPhone, are dependent on the use of the network. As a result network owners could use this weakness to extract virtually all of the network’s users surplus in any given transaction.

19th Century approaches to regulation also offer insights into potential solutions to problems of a similar kind in our era. According to DeLong traditional antitrust law offers little hope of preventing the sort of problems arising out of a network and dependent user relationship because it focuses on competition between networks as opposed to the relationship between networks and network users . DeLong points to earlier common law which required equal treatment of dependent companies. This ensured that network owners could not price discriminate among various users to the detriment of dependents. Finally DeLong notes that efforts to prevent integration of network owners and users is filled with pitfalls because this prevents the formation of natural efficiencies. Antitrust law in particular appears to have sought to limit the integration of networks and network users.

As governments around the world are tasked with considering the regulation of electronic commerce characterized by a network/dependent dynamic they should keep the lessons discussed by DeLong in mind. An optimal regulatory strategy will need to address the exploitation of dependent companies while at the same time allowing for the development of valuable integration efficiencies . This balancing act will require a certain degree of pragmatism and levelheadedness. Unfortunately levelheadedness was not characteristic of 19th century regulation which appears to have been prompted by the political agitation of network users. Perhaps 21st century regulatory efforts will prove less tumultuous.

US Supreme Court split on parallel import ban

The US Supreme Court released their ruling on Omega v. Costco today, affirming the 9th Circuit ruling in favour of Omega. The case considered whether the first sale rule applied to copyrighted goods manufactured outside the United States (a previous case, Quality King, held that first sale applied to goods manufactured in the US, exported, and re-imported). The applicability of the first sale doctrine determines whether or not Costco can import grey market watches for sale in the US. The court was evenly split (the newest Justice took no part in the decision), therefore the ruling continues to be only binding in the 9th Circuit and was released without reasons.

“Don’t care about copyright? You should”

A recent article in the Globe and Mail, Barrie McKenna chronicles the many obstacles Canadian copyright reform has undergone in recent years.

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Google Search subject to EU anti-trust investigation

The European Union has announced that it has opened a formal investigation into allegations that Google favours its own properties over competing services in search results. When a user searches for something, hotels for example, Google displays prices and reviews from it’s own travel service as the first result while links to other travel sites are farther down the page. The EU is also investigating claims that Google is discriminating against competitors in advertising provided to third party websites.

RIM launches patent suit against Kik Interactive

As reported in the Globe and Mail, Research in Motion has launched a patent infringement lawsuit against Kik Interactive Ltd. RIM claims that Kik Messanger infringes on their patent for Blackberry Messenger. They claim that Kik’s CEO was previously employed at RIM and after leaving the company “he quickly went about starting his own instant messaging app”.  Kik has vowed to “vigorously defended” itself against the suit.

Which way to the Creative Commons?

Let’s begin with a hypothetical: you’re browsing around the web, looking at an e-book site, and you see a section on that site labeled “public domain.” You know that “public domain” means that the copyright has expired and so the book is free. You think “great!” and head over. Once there, however, you discover that there are some works listed on the site whose authors are very much alive and still writing—and whose works therefore should be protected by copyright.

But whatever–it’s free!–so you download the e-book and open it up. In the front matter, there’s some stuff about “creative commons” and being able to copy the book all you want, as long as you don’t sell it. “Fine,” you think, and start reading.

This anecdote is meant to illustrate a fundamental confusion many consumers of works licensed under the creative commons tend to have towards what this means. Free content means free content in most consumers’ minds, and because they simply want to read the book and be done—in other words, they have no plans to make a film adaptation or resell the work—nuances of difference don’t really matter. For creators, who have encountered the creative commons license via free downloads of other creators’ works, this may not be so. When they find such works listed on e-book sites under “public domain,” they may think “I might consider giving my book away for a while, but I don’t want to put it in the public domain and waive all my other rights to it!” They may admire those high-minded fellow writers they know, who have put works out under creative commons, but conclude that it’s not for them.

The real story is a little more complicated than that—more complicated, but also better, and more useful, at least for creators and consumers. This post aims to provide a brief primer of some key concepts and implications of creative commons licenses.

The creative commons, both as a tool and as a phenomenon, has wide-ranging implications, both for creators and for consumers. But, it is also worth noting that the term “creative commons” can refer to several different things.

The Idea.

By the late 1990s, the tension between the easy promulgation of perfect copies in digital media, and the increasingly extreme and restrictive laws against making use of these ripe-for-the-picking technologies was starting to emerge and grow clear. Lawrence Lessig, who has been an outspoken critic of the series of copyright reforms that have grown increasingly extensive and confining for users since the 1970s, along with Hal Abelson and Eric Eldred, came up with the idea of allowing those creators and researchers who felt constrained by the tight restrictions on their works, to have a little more flexibility up front, when they release their work for widespread consumption. The resulting licenses allow for creators to determine which facets of copyright they wish to retain and which they are willing to release, and to convey those wishes to consumers of their work–both in plain English and in legally enforceable language. The hope was that this would allow for more creative freedom and dialogue, as newer, more socially-relevant works became available for use by other creators.

As creators and innovators began putting their works out under these licenses, a new domain of intellectual property came into existence. Not quite public domain, as the creators were able to retain a number of different rights, this area was also less restrictive than the “all rights reserved” region of standard copyright. Meet the brave new world of “some rights reserved”: the creative commons.

The Organization.

The result of this brainchild was creativecommons.org, a not-for-profit organization founded by Lessig, Abelson and Eldred in 2001. The organization offers resources, in the form of licenses and other legal tools, case studies and information. These resources demonstrate the many ways in which the Creative Commons licenses can and are being used. It is also a resource for educating consumers, with plain English explanations of what kinds of uses they are allowed to make of works under the different licenses that are being offered.

The Licenses.

Creative commons licenses give creators an efficient and refined instrument, that has the additional benefit of being legally binding and enforceable, and that will allow them to determine which facets of their copyright they wish to retain and which facets they are willing to relinquish.

Though in many ways the creative commons is about resisting the restrictions of copyright, the legal instruments actually do derive their legal legitimacy from copyright law. Copyright law automatically confers a variety of rights upon creators–from the right to prevent others from copying the work without permission, to the right to prevent someone from creating derivative works and profiting from them, again without permission. Creative commons allow creators to choose which of these rights they’re willing to release and which they’d prefer to retain.

So, what are some of the available options?

Creative commons licenses generally release the right to copy the work, at least in its original form. The narrowest of the licenses stipulate that the work must be recreated in its original form, without alterations, and requires that attribution be given to the creator. But there are other options as well. Here’s a quick rundown of the key factors that the licenses and related instruments deal with:

• The right to copy–as mentioned, creative commons is generally about releasing the right to copy, allowing for the work to be reproduced at will, but usually with some combination of restrictions.
• Attribution–these licenses require attribution, as stipulated by the rightsholder, on any copies that are created. This simply means that any copies of a work that are redistributed must give credit to the rightsholder or creator.
• Derivatives–derivative works can range from film adaptations to works which make extensive use of the rights holder’s fabricated world and characters. A license that allows for derivatives means that anyone can adapt the works or create more works based on the original without seeking permission or providing the creator with compensation.
• Non-commercial derivatives–allows for derivative works, but only in a non-commercial context. Film students can adapt the creator’s book for a class project, for instance, but as soon as a distributor picks it up for commercial release, the creator of the derivative work would need to work something out with the creator.
• Share alike–an allusion to the old adage “share and share alike”, this stipulation requires that any derivative works must be released under the same license–the share alike–for others to make use of. The licenses also require that the derivative work be non-commercial.
• CC0–referred to as “CC Zero”, this particular legal instrument is for those who wish to release their creation into the public domain. Given the nature of copyright law in many jurisdictions, this isn’t as simple as it might seem. The legal formulation of CC0 is as close as it gets, at this point, and releases the widest range of the automatic rights that are automatically conferred under copyright.

For more details on the licenses–or to pick one out for your own latest creation–stop by creativecommons.org. If you’re in Canada, visit creativecommons.ca for Canadian versions of the licenses.

The Phenomenon.

The creativecommons.org estimates that as of 2009, there were over 350 million works that had been released using creative commons licenses and the related legal instruments that are available for creators to attach to their works. Wikipedia make use of their Attribution-Share-Alike license. The Human Genome Project is an adopter of their CC0 instrument. Michael Geist, Cory Doctorow and other cultural commentators are also users of the licenses.

It is the producers, the publishers and the other intermediary actors who are less likely to be fans of creative commons licenses. Those who have the money and the resources to shoulder risk, in the case of high-cost projects such as films, high-production-value sound recordings and speciality books, are unlikely to want to then release their considerable investments under creative commons licenses, which will cut into what can often end up being a break-even revenue stream–if that. Creative works in particular are high risk, and so film studios and other such producers often rely on a model in which one or two blockbusters will finance a variety of break-even or money-losing projects that don’t live up to the potential of the early pitches. In many cases, such risk-takers simply cannot afford to cut into their revenues in such a manner, because it would require shouldering even higher risks. Similarly, creators who have quit their day jobs and who rely upon the revenue streams that come directly from the sales of their works are less likely to issue their works under creative commons licenses because they cannot afford the potential loss of revenue.

And yet, even that scenario is more nuanced than it seems. Some publishers are agreeing to allow books in their catalogues to be released under creative commons licenses. Some established creators are placing their works in the creative commons–either because they still have day jobs, or because they have worked out other ways to earn revenue from their works, via concert tours, speaking engagements or other such opportunities.

Despite naysayers and limitations, the domain of  the creative commons is becoming more extensive with each passing day. It should, by now, be obvious that extrinsic motivations for creation are not necessarily limited to the desire profit, but can also include a desire on the parts of creators to share findings and creations with consumers, and to engage in academic, scientific, cultural or creative discourse with colleagues and fellow creators and innovators. And now, the land of the creative commons is becoming even more diverse as works that are the results of this creative exchange are also released, for sharing and further discourse–an exciting prospect indeed.

(note: the creative commons trademark, above, is being used in compliance with the trademark policy of creativecommons.org. The policy can be reviewed here. This post is released under an Attribution Non-Commercial 2.5 Canada Creative Commons License.)