Microsoft Helps Get A Computer Recycler Sentenced To 15 Months In Prison For Offering Unapproved Recovery Disks

from the thanks-for-making-the-world-a-better-place-you-thief dept

To ensure no good deed goes unpunished, Microsoft is trying to get a computer recycler tossed in prison because he almost provided Windows recovery disks to users who needed them. Eric Lundgren, who's made heroic efforts to prevent dangerous computer parts from filling landfills, is facing a 15-month sentence and a $50,000 fine for manufacturing 28,000 recovery disks. His sentence is based on two charges: conspiracy and copyright infringement.

Tom Jackman has the whole story at the Washington Post and it's half-tragedy, half-farce. Lundgren runs a company that prevents tens of millions of pounds of harmful chemicals and metals from ending up in landfills. In return for doing more than his part to save the planet, he'll gets a chance to spend a year in jail and hand Microsoft $50,000 in compensation for sales it never "lost" from recovery discs he never got a chance to distribute. (h/t Techdirt reader Tom Sparks)

Lundgren said he thought electronics companies wanted the reuse of computers to be difficult so that consumers would buy new ones. “I started learning what planned obsolescence was,” he said, “and I realized companies make laptops that only lasted as long as the insurance would last. It infuriated me. That’s not what a healthy society should have.”

He thought that producing and selling restore discs to computer refurbishers — saving them the hassle of downloading the software and burning new discs — would encourage more users to restore their computers instead of discarding them. In his view, the new owners were entitled to the software, and this just made it easier.

The government, and Microsoft, did not see it that way. Federal prosecutors in Florida obtained a 21-count indictment against Lundgren and his business partner, and Microsoft filed a letter seeking $420,000 in restitution for lost sales. Lundgren claims that the assistant U.S. attorney on the case told him, “Microsoft wants your head on a platter and I’m going to give it to them.”

Fortunately, Lundgren has judges in a couple of courts on his side, at least for the time being. US District Judge Daniel T.K. Hurley pointed out to the prosecution that Lundgren hadn't sold any of the recovery discs he had produced. Because of that, he departed downward from federal sentencing guidelines, giving Lundgren less than half of the 36-to-47 months called for.

Judge Hurley appears to feel locking Lundgren up for a few years would be a net loss for society, if not the environment.

“This case is especially difficult,” Hurley told Lundgren at his sentencing last May, “because of who you are today and in terms of who you have become.” The judge received evidence of Lundgren’s recycling company, IT Asset Partners, his projects to clean up e-waste in Ghana and China and a 2016 initiative in which Lundgren’s company repaired and donated more than 14,000 cellphones and $100,000 to “Cellphones for Soldiers” to benefit U.S. soldiers deployed overseas.

The other court on his side -- at least for the moment -- is the 11th Circuit Court of Appeals. Lundgren appealed his sentence and the court agreed to hear the case. This keeps Lundgren out of jail until the appeal is ruled on. It's unclear where the court's sympathies lie, but it is encouraging it didn't dismiss it immediately. Lundgren plans to argue he didn't violate Microsoft's software license or cause it any lost sales. The government will obviously stick to its "head on a platter" argument, presenting Microsoft's absurd "lost sales" theory as actual fact, rather than the ridiculousness it is -- especially when Microsoft spent most of the last couple of years giving away Windows 10 to everyone, including people who didn't want it.

Someone dedicates his life to keeping landfills free of harmful material and the government wants to send him to prison. And it's all based on Microsoft's assertion it would have sold as many recovery disks as Lundgren created if only Lundgren hadn't created them. Ignored is the fact they never were distributed. Also ignored is the dubiousness of "lost sales" assertions, which are always 100% conjecture and always presented as a simplistic equation: "1 Piracy = 1 Lost Sale." But in this case, no sales were lost because no sales were replaced with bootleg boot disks.

And "sales" must be a legal term of art. Microsoft allows anyone to download a recovery disk for free. But in court, these are suddenly worth money because infringement. To ensure someone gets tossed in jail for breaking the chain of planned obsolescence, Microsoft (and prosecutors) want the court to believe the existence of recovery disks that do nothing unless a person already has a licensed copy of Windows has somehow made the company $700,000 poorer. Given the limitations of burned recovery disks, it's impossible to see where infringement even comes into play. And yet here we are, watching prosecutorial discretion morph into putting someone's head on a platter over recovery disks any one of us could download hundreds of times from Microsoft's website without a single murmur about "lost sales" from the tech giant.

Filed Under: copyright, eric lundgren, licensing, recovery discs, recycling
Companies: microsoft

International Inconsistencies In Copyright: Why It's Hard To Know What's Really Available To The Public

from the messy-copyright dept

Today, Santa Clara University is hosting a gathering of tech platform companies to discuss how they actually handle content moderation questions. Many of the participants have written short essays about the questions that are being discussed at this event. We've published a bunch of essays this week from the conference, and will continue with more next week.

Have you ever wondered why it can be hard to find out what some old paintings look like? Why there seem to be so few pictures of artistic works available from many countries even though they're filled with public sculptures and murals? Or why prices for books and movies can be so wildly different in different countries? The answer is that copyright law is different all over the world, and these differences can make figuring out what to do with these works so difficult or risky that most websites are not willing to have them around at all. This essay talks about a few of these works and why they add a major challenge to content moderation online.

To begin, Wikipedia and the Wikimedia Foundation that hosts it have a mission to host freely available educational content, which means that one of the areas that comes up for us quite often when we receive content moderation requests is whether something is truly free or not. This can come up in a bunch of different ways, and I'd like to talk about a few of them, and why they make it quite difficult to figure out what's really available to the public and what's not.

The first one is old pictures and manuscripts. It's generally accepted that if a work was published before 1923, then it's old enough that the author's rights have expired and the ability to freely copy, share, and remix the work shouldn't be limited by the law anymore. But that raises a couple questions. First, how do you know when something was published, especially back then? There's a whole swath of old pictures and writings that were prepared before 1923, but may have never been published at all until later, which then requires figuring out a different timing scheme or figuring out when the work was published: a sometimes very difficult affair due to records lost during the World Wars and various upheaval in the world over the last century. For just one example, a dispute about an old passport photo recently came down to whether it was taken in Egypt or Syria during a time when those national borders were very fluid. If it had been in Egypt, it would have been given U.S. copyright and protected because it was after 1923, but if it had been in Syria at the time, it would not have been protected because that country wasn't extended recognition for copyrights at the time.

A second example is works from countries with broad moral rights. All the works on Wikimedia projects that were made recently are dedicated by their authors to the public domain or licensed under free culture licenses like Creative Commons. However, these sorts of promises only work in some countries. There are international copyright treaties that cover a certain agreed-upon set of protections for every country, but many countries add additional rights on top of the treaties such as what are called moral rights. Moral rights in many countries give the creator the power to rescind a license and they cannot give up that power no matter how hard they try. It ends up looking something like this: "I promise that you can use my work forever as long as you give me attribution, and anyone else can reuse it too, and I want this to be irrevocable so that the public can benefit without having to come back to me." And then a couple years later, it's "oh, sorry, I've decided that I changed my mind, just forget my earlier promise." In some places that works, and because of that possibility, people can't always be sure that the creative works being offered to them are reliable.

A third problem is pictures of artwork. This one applies, though a bit differently, to both new and old works. With new photos of old works, it's a question of creativity. Copyrights are designed to reward people for their original creativity: you don't get a new "life of the author plus 70 years" of protection for making a photocopy. But in some places, they again go past the international rights agreed upon in the copyright treaties and add extra protections. In this case, many countries offer a couple decades worth of protection for taking a straight on 2-D photograph of an old work of art. The Wikimedia Foundation is currently in a lawsuit about this with the Reiss Engelhorn Museum in Germany, where the museum argues that photographs on its website are copyrighted even though the only thing shown in the photo is a public domain painting such as a portrait of Richard Wagner.

The other variation of problems with photos of art is photographs of more recent works out in the public. Did you know that in many places if you're walking in a park and you take a snapshot with a statue in it, you're actually violating someone's copyright? This varies from country to country: some places allow you to photograph artistic buildings but not sculptures or mosaics, other places let you take photographs of anything out in public, and others prohibit photographs of anything artistic even if it's displayed in public. This issue, called freedom of panorama, is one that many Wikimedians are concerned over, and is currently being debated in the European Parliament, but in the meantime can lead to very confused expectations about what sorts of things can be photographed as the answer varies depending on where you are.

The difficulty around so many of these types of works is that they put the public at risk. The works on Wikipedia, and works in the public domain or that are freely licensed more generally are supposed to be free for everyone to use. Copyright is built on a balance that rewards authors and artists for their creativity by letting them have a monopoly on who uses their works and how they're used. But the system has become so strong that even when the monopoly has expired and the creator is long dead, or when the creator wants to give their work away for free, it's extremely difficult for the public to understand what is usable and to use it safely and freely as intended. The public always has to be worried that old records might not be quite accurate, or that creators in many places will simply change their minds no matter how many promises and assurances they provide that they want to make something available for the public good.

These kinds of difficulties are one of the reasons why the Wikimedia Foundation made the decision to defer to the volunteer editors. The Wikimedia movement consists of volunteers from all over the world, and they get to decide on the rules for each different language of Wikipedia. This often helps to avoid conflicts, such as many languages spoken primarily in Europe choosing not to host images that might be allowed under U.S. fair use law, whereas English language does allow fair use images. It's difficult for a small company to know all the rules in hundreds of different countries, but individual volunteers from different places can often catch issues and resolve them even where the legal requirements are murky. As just one example, this has actually led Wikimedia volunteers who deal with photographs to have one of the most detailed policies for photographs of people of any website (and better than many law textbooks). In turn, volunteers handling so many of the content issues means that the Foundation is able to dedicate time from our lawyers to help clarify situations that do present a conflict such as the Reiss Engelhorn case of freedom or panorama issues already mentioned.

That said, even with efforts from many dedicated people around the world, issues like these international conflicts leave some amount of confusion and conflict. These issues often don't receive as much attention because they're not as large as, say, problems with pirated movies, but they present a more pernicious threat. As companies shy away from dealing with works that might be difficult to research or uncertain as to how the law applies to them, the public domain slowly shrinks over time and we are all poorer for it.

Jacob Rogers is Legal Counsel for the Wikimedia Foundation.

Filed Under: copyright, creative commons, international rules, jurisdiction, licensing, public domain, takedowns
Companies: wikimedia

It Kind Of Looks Like Crytek Sued Star Citizen Developer By Pretending Its Engine License Says Something It Doesn't

from the fake-it-until-you-make-it dept

We see all kinds of crazy copyright disputes and lawsuits around here. It is, after all, kind of our thing. Still, occasionally you come across a copyright lawsuit so completely head-scratching as to make you question reality. Thus is the case with the lawsuit Crytek filed against CIG, makers of the long-anticipated Star Citzen game, for both breaking a licensing agreement between both parties and copyright infringement. Strangely, if you read the complaint, all of this centers around CIG choosing not to use the Crytek engine.

Crytek's lawsuit alleged that CIG broke a CryEngine licensing agreement and infringed on Crytek's copyrights by switching from CryEngine to Amazon's Lumberyard platform in late 2016. But CIG contends that Crytek's complaint selectively and misleadingly quotes from the full Game License Agreement signed by both parties.

CIG's response, as highlighted in its motion to dismiss looks really bad for Crytek. Essentially, CIG contends that Crytek either doesn't know how to read its own licensing agreement, or is selecting portions of the agreement to make it seem like it says something it simply doesn't. As an example, Crytek's suit claims the licensing agreement isn't supposed to extend to a spinoff game CIG is developing, Squardron 42, except that the full licensing agreement CIG put before the court specifically covers Squadron 42 by name.

And if that sort of gaff isn't enough to get your head shaking, CIG also points out that the licensing agreement, while providing exclusivity to the engine to CIG, doesn't actually require the company to use the engine at all.

CIG also argues that the "exclusive rights" to CryEngine granted in the license agreement do not extend to a requirement to use that engine. "The plain language of the GLA where the grant of rights to CIG appears, plus the well-established concept of an exclusive license, instead establish that the word 'exclusively' simply means that CIG’s right to use the Engine in the Game is exclusive to CIG and Crytek may not give that right to anyone else," the company writes.

"No provision in the GLA states that CIG 'shall not' embed any other engine or third-party software in the Game," the response continues.

That covers the contract dispute portion of this. The claim of copyright infringement brought by Crytek appears to center on CIG's failure to post Crytek's copyright notices for the game engine it is no longer using.

By extension, the requirement to list Crytek's copyright notices only applies when CryEngine was being used, CIG argues. Furthermore, CIG argues, the original agreement bars either party from seeking damages, as Crytek is attempting with its lawsuit. And Roberts Space Industries, which is named in the original Crytek complaint, didn't actually sign the agreement in question, CIG contends.

At face value, it's difficult to describe this whole situation as something other than Crytek's legal team stepping directly into a bucket of shit, comically hopping up and down while shaking its fist for a moment, and then simply falling over backwards. I'm hard-pressed to think of a bigger loser of a suit than this, assuming CIG's documentation is correct.

Filed Under: engine, exclusivity, licensing, squadron 42, star citizen, video games
Companies: cig, crytek

How The Muppets And A Font Choice Hurt The Star Trek / Dr. Seuss Mashup In Court

from the one-fish-two-fish-we-CAN-sue-fish dept

A little over a year ago, we wrote about an unfortunate case in which Dr. Seuss Enterprises decided to sue for copyright and trademark infringement over an attempt to create a (pretty funny) parody that mashed up Dr. Seuss with Star Trek, called "Oh, The Places You'll Boldly Go." As we noted at the time, this seemed to be a clear parody (which is protected by fair use). It was clearly transformative, and was commenting on the differences between Trek and Seuss. We also noted some extraordinary (and extraordinarily silly) claims in the lawsuit. The defendants in the case, Comicmix, won a round earlier this year, when the judge tossed out the trademark claims. However, he let the copyright claims stand for the time being. After, Dr. Seuss Enterprises filed an amended complaint on all the claims, leading to a new motion to dismiss.

Unfortunately, in a new ruling, the court has again denied the fair use claims on copyright, and also denied a new motion to dismiss on trademark grounds, meaning the case will move forward. And it's in large part due to the Muppets and a font. I only wish I were joking. You can read the ruling here. Since the court had previously done a copyright fair use four factors analysis, it mostly just points back to its previous ruling on the matter, but only adjusts its analysis of factor four -- the "effect of the use upon the potential market." The other factors split evenly (factor one in favor of Comicmix, factor two in favor of Seuss, factor three favoring neither).

So this ruling turns on what many courts (perhaps incorrectly...) believe is the most important factor: does this use harm the market for the copyright-covered work. Here, the discussion turns on whether or not this would undermine the Seuss Estate from licensing out its copyrights to someone to do a Star Trek mashup. Comicmix's argument is basically "come on, no one's doing that." Seuss's argument is "hey, look, we've done other mashups before"

Plaintiff states it has published “books that are derivative of [Go!]” such as Oh! The Places I’ll Go; Oh, Baby! Go, Baby!, and more.... Plaintiff states it also publishes a series of “books written and illustrated by other authors and artists that are based upon and incorporate the Dr. Seuss Intellectual Property” such as Oh, The Things You Can Do That Are Good for You!, There’s No Place Like Space!, Oh, The Pets You Can Get!, and more.... Plaintiff states “[n]otably, ‘Dr. Seuss’ does not appear on any of the [book] covers, and all of the covers include names of other authors, despite the fact that these works are authorized by DSE and are recognized by the public as Dr. Seuss works.”...

Defendants argue Boldly cannot cause any relevant market harm because Plaintiff’s licensed collaborations listed in the FAC are not works of Boldly’s type.... Defendants argue Plaintiff has not licensed and would not license “any derivate work that creates a hybrid of Dr. Seuss’s books with existing characters and imagery from a third party’s entertainment franchise. The first amended complaint does not give rise to a plausible claim that Boldly would cause any harm in any transformative market.” ... Defendants distinguish their mash-up from Plaintiff’s licensed derivatives and argue none of the books published as part of Plaintiff’s co-branding licensing program “are crossover works that integrate pre-existing characters or imagery from another entertainment franchise, such as Star Trek, with those of Dr. Seuss.”

The Seuss folks responded to this by pointing out that... they'd done a Muppets mashup with Seuss. Muppets!

Plaintiff argues it has in fact collaborated with others and created crossover works, such as through the creation of The Wubbulous World of Dr. Seuss, “a live action/puppet show produced by the Jim Henson Company featuring Dr. Seuss’s well-known and beloved characters alongside new, Muppet-like characters created by The Jim Henson Company.”

That apparently is enough to convince the court that Seuss might possibly, some day, find a market to produce mashup Seuss / Star Trek works:

Although these books may not be mash-ups like Boldly, there is a potential market for a literary mash-up involving Plaintiff’s books; such a market would not be unlikely based on Plaintiff’s past licensing programs. Defendant’s production of Boldly may result in an adverse impact on Plaintiff’s derivative market and the Court therefore finds there is potential harm to the market for Plaintiff’s derivative works. Therefore, this factor weighs in favor of Plaintiff.

With the amended complaint, the court also revisits the trademark claim... and allows it to move forward as well, reversing its earlier ruling. It finds that Seuss's trademark is valid here, and then says that Comicmix's use does not meet the standards for nominative fair use (in trademark law, that basically means did you just use the trademark to identify the thing that you're talking about). The real failing by Comicmix? Going a bit overboard in using the identical font in their title. Really:

Defendants not only use the words “Oh! The Places You’ll Go!” in the title of Boldly but also use the exact font used by Plaintiff. The look of the lettering is unquestionably identical on both books, down to the shape of the exclamation point. This situation is similar to that in Toho. The Court finds it was unnecessary for Defendants to use the distinctive font as used on Go! to communicate their message (i.e., that Boldly is a mash-up of the Go! and Star Trek universes). The Court concludes Defendants have not satisfied this nominative fair use factor.

I find this... puzzling. Again, the use of the font is the same issue as the use of the other Seussian design: to evoke the world of Seuss in which to land their parody.

So, Comicmix is 0-for-2 at this point -- and have the Muppets and a font to blame. Ouch.

This by no means that the case is over. It can still go through discovery and summary judgment and, then possibly a trial. And it's still possible that Comicmix could win -- but it's also going to be expensive to keep going.

In the meantime, I'm still left wondering why this is a good move by Dr. Seuss Enterprises. It's a beloved brand acting like a bully, pissing off tons of fans. Why not just let the Star Trek / Dr. Seuss fans have their fun for a bit and use the goodwill to sell more of its own books. I mean, I imagine the temptation among many people who would buy the mashup book would be to also get a copy of the Seussian original if they don't already own it. But, alas, in this day and age, so many organizations feel they have to go legal against everyone.

Filed Under: copyright, dr. seuss, fair use, fonts, licensing, muppets, parody, star trek, trademark
Companies: comicmix, dr. seuss enterprises

Disney: The Only Fun Allowed At Children's Birthday Parties Is Properly Licensed Fun

from the mouse-in-the-house dept

Readers of this site will hear the name Disney and immediately begin rolling their eyes. By virtue of its insanely aggressive and expansionist views on intellectual property matters, Disney manages to find itself on the wrong side of nearly every issue. Disney is in the business of making money and it often looks to do so in the most draconian of manners, but the company also bills itself as being dedicated to children's entertainment, growth, and happiness.

Which is why it's somewhat odd to see the giant media company going to IP war against a company that sends unlicensed, poorly-disguised homage characters to children's birthday parties.

Characters for Hire in New York has been hit with a lawsuit after being accused by Disney of infringing upon "highly valuable intellectual property rights" (via the Hollywood Reporter). This includes Star Wars and Frozen characters, as well as superheroes such as Iron Man.

Except that those characters are altered ever so slightly and renamed in an obvious attempt to get around the exact intellectual property laws -- copyright and trademark -- over which Disney is suing. Darth Vader, for instance, is listed as Dark Lord, while Chewbacca has been rebranded as Big Hairy Guy. No, that's not a joke. On the company's homepage, it displays the following disclaimer:

DISCLAIMER: ALL COSTUMED CHARACTERS ARE GENERIC/INSPIRED AND ARE NOT AFFILIATED, LICENSED OR ASSOCIATED WITH ANY CORPORATION OR TRADEMARK. It is not our intention to violate any copyright laws. The characters that we offer are NOT name brand copyrighted characters, and Characters for Hire, LLC. costumed characters are named of our own creation. Any resemblance to nationally known copyrighted characters is strictly coincidental. Should you have the need for a licensed, copyrighted mascot or character at your event, we encourage you to contact the company/copyright holders for your specific targeted character. If you have any questions regarding this issue, we encourage you to contact us. We DO NOT offer nor do we present any licensed and/or copyrighted characters.

For that reason, Characters For Hire is claiming that both the copyright and trademark claims from Disney aren't valid. The characters are altered and renamed in an effort to gain protection from the idea/expression dichotomy, with those same changes and the disclaimer making it clear to the public that the company has no affiliation with the IP owners of the original characters from which these generics are inspired.

That said... yeah, but no. The point made in the disclaimer that the likenesses are strictly coincidental is laughable at best. It's very likely that the copyright portion of Disney's claims will hold up in court. The trademark claims have less a chance of success, as it's abundantly clear that these are not licensed characters or associated in any way with companies like Disney. But, still, the so-called generic characters of Characters For Hire appear to be more than merely "inspired" by the originals and are instead near identical characters with alterations made only to get around copyright law.

But the larger point is: hey, Disney, why? Given that the copyright claims are the most substantive, there was nothing requiring Disney to take this action. Certainly it is laughable for Disney to claim any serious harm from a copyright perspective due to Characters For Hire's actions. All this is really doing is keeping some fun, if unoriginal, characters from entertaining kids and people at birthdays and related events. Is giving up the stated aim to make children happy really worth smacking around a relatively small company that works these sorts of parties?

Filed Under: birthday parties, copyright, costumes, licensing, trademark
Companies: characters for hire, disney

Iran Cracks Down On Movie Pirates In The Most Inception-Esque Manner Possible

from the pirate-vs.-pirate dept

For those of us that pay attention to copyright matters throughout the world, a story out of Iran has had us riding a strange sort of roller coaster. Late in September, the Iranian government arrested six people it says run the movie-streaming site TinyMoviez. That site is like many others on the web, focusing on the streaming of Hollywood movies in a manner that is pretty clear-cut piracy. Iran does have copyright laws on the books, which include punishments for "anyone who publishes, distributes or broadcasts another person's work without permission," ranging from imprisonment for a few months to three years for violating that law. There are, however, no agreements on copyright between American and Iran, for obvious reasons, so the application of Iranian copyright law tends to be focused on Iranian content. Many were left scratching their heads wondering why the arrest had been made.

Well, it turns out that the government carried this out at the request of several other websites dedicated to pirating Hollywood content in Iran. Iranian pirate sites that are officially licensed, in fact.

However, according to a source cited by the Center for Human Rights in Iran (CHRI), the site was targeted because rival pirate sites (which had been licensed to ‘pirate’ by the Iranian government) complained about its unlicensed status.

“In July and August [2017], there was a meeting between a number of Iranian start-up companies and [current Telecommunications Minister Mohammad Javad Azari] Jahromi, who was asked by film and TV series distributors as well as video game developers to help shut down and monitor unlicensed rivals,” a film distributor in Tehran told CHRI.

“The start-ups made the request because they could not compete with a site like TinyMovies,” the source added.

We live in very strange times, friends. Essentially, the Iranian government licenses websites that stream or upload Hollywood content for pirating, and TinyMoviez wasn't of the licensed variety. The licensed pirate sites complained to the government that they could not compete with an unlicensed pirate site and asked the government to shut them down. If you feel like you're trapped in a showing of Inception at this point, I won't blame you, as the concerns from licensed pirate sites sound almost identical to Hollywood itself. Pirates getting pirate sites taken down is a notable occurrence.

For its part, the Iranian government has suggested it took down TinyMoviez for far more banal reasons in the Iranian tradition.

“Tehran’s prosecutor, after referral of the case to the Cyberspace corruption and prostitution department, said that the defendants in the case, of whom six were currently detained, produced vagabond and pornographic films and sold them in cyberspace,” Tehran Prosecutor Abbas Jafari Dowlatabadi said in an announcement.

“This gang illegally operated the largest source for downloading Hollywood movies and over the past three years, has distributed 18,000 foreign films and series after dubbing, many of which were indecent and immoral, and thus facilitated by illegitimate funds.”

Yet the site's offerings were essentially indistinguishable from that of the licensed pirate sites. This was all about the license, it seems. I'm not sure what it says about the state of copyright or ownership culture when we've reached the stage where pirates are getting pirate sites taken down by governments. Maybe this is the sort of thing that could only happen in a country like Iran. Or maybe the capture of the state through lobbying efforts has reached a new low. Either way, strange times.

Filed Under: copyright, iran, licensing, piracy

Free Software Foundation Europe Leads Call For Taxpayer-Funded Software To Be Licensed For Free Re-use

from the public-money,-public-code dept

Free Software Foundation Europe has a new campaign -- "Public money, public code" -- which poses the following question:

Why is software created using taxpayers' money not released as Free Software?

And goes on:

We want legislation requiring that publicly financed software developed for the public sector be made publicly available under a Free and Open Source Software licence. If it is public money, it should be public code as well.

It certainly seems pretty ridiculous that code written for public bodies, whether by external companies or contractors paid by the public purse, or produced internally, should not be released as free software. But aside from this being a question of fairness, the FSFE lists other reasons why it makes sense:

Tax savings

Similar applications don't have to be programmed from scratch every time.

Collaboration

Efforts on major projects can share expertise and costs.

Fostering innovation

With transparent processes, others don't have to reinvent the wheel.

An open letter on the site, supported by dozens of organizations and open for individual signatures, provides a few more:

Free and Open Source Software is a modern public good that allows everybody to freely use, study, share and improve applications we use on a daily basis.

Free and Open Source Software licences provide safeguards against being locked in to services from specific companies that use restrictive licences to hinder competition.

Free and Open Source Software ensures that the source code is accessible so that backdoors and security holes can be fixed without depending on one service provider.

Considered objectively, it's hard to think of any good reasons why code that is paid for by the public should not be released publicly as a matter of course. The good news is that this "public money, public code" argument is precisely the approach that open access advocates have used with considerable success in the field of academic publishing, so there's hope it might gain some traction in the world of software too.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: europe, governments, licensing, software, taxpayers
Companies: free software foundation europe, fsfe

Licensing Body Agrees To Temporarily Allow Man To Criticize The Government Without A License

from the baby-steps dept

A couple of months ago, the Oregon state government finally decided it was tired of listening to a civilian poke holes in its yellow light timing theories. So, it did what any reasonable government would do: used licensing laws to shut him up.

Mats Jarlstrom, a resident who had performed a great deal of research into traffic light timing, was informed by the state's engineering licensing board that he could no longer perform engineering without a state-ordained license. Not that Jarlstrom was actually performing any engineering. (Although he could! He has a BS in electrical engineering.) He just wanted to discuss his research with the state's engineering body. He also discussed his findings in more informal contexts, which was a necessity because the state wasn't interested in listening to him.

In essence, Jarlstrom was told to stop criticizing the government without permission. He was fined $500 and told to shut up if he didn't want to be fined in the future. Jarlstrom sued the state for violating his Constitutional rights. And he's already achieved a small victory, as the Institute for Justice reports:

In an early and important win, yesterday a federal judge issued an order prohibiting Oregon from penalizing Mats Järlström for discussing the timing of stop lights or for calling himself an engineer. The order, which was agreed to by the state, means that Järlström is free to exercise his First Amendment rights to discuss his traffic light theories without first obtaining an Oregon professional-engineer license.

The opening paragraphs of the order [PDF] suggest the state licensing board has had a change of heart in light of all the negative press it gathered with its "shut up" fine.

Jarlstrom' s complaint asserts that Oregon's Professional Engineer Registration Act, Or. Rev. Stat.§ 672.002 et seq., and implementing regulations violate the First Amendment to the U.S. Constitution both as applied and on their face by preventing him from (1) communicating publicly and privately about theories relating to the mathematics behind traffic lights, and (2) describing himself using the word "engineer."

Rather than litigating a motion for preliminary injunction, the Board agrees not to enforce the Professional Engineer Registration Act, Or. Rev. Stat. § 672.002 et seq., or any implementing regulations against Plaintiff Jarlstrom during the pendency of this litigation for engaging in any of the speech described below.

At least for the duration of the litigation, Jarlstrom is free to speak about his traffic light research and refer to himself as an "engineer" without the express, licensed permission of the state licensing board. This suggests the state doesn't feel very confident about its chances of success, so it's minimizing the damage during the litigation. Hopefully, this will result in a settlement which modifies the behavior of the licensing board permanently and prevents it from wielding its granted power as a tool of censorship.

Filed Under: engineer, free speech, licensing, mats jarlstrom, oregon, redlight cameras

This Week In Creative Commons History

from the global-summit dept

Since I'm here at the Creative Commons 2017 Global Summit this weekend, I want to take a break from our usual Techdirt history posts and highlight the new State Of The Commons report that has been released. These annual reports are a key part of the CC community — here at Techdirt, most of our readers already understand the importance of the free culture licensing options that CC provides to creators, but it's important to step back and look at just how much content is being created and shared thanks to this system. It also provides some good insight into exactly how people are using CC licenses, through both data and (moreso than in previous years) close-up case studies. In the coming week we'll be taking a deeper dive into some of the specifics of the report and this year's summit, but for now I want to highlight a few key points — and encourage you to check out the full report for yourself.

Public Domain Dedications Are Gaining Steam

Even within the CC community itself, there is some debate as to the effectiveness and appropriateness of various licensing options like no-derivatives and non-commercial. Here at Techdirt we've always encouraged creators to strongly consider the CC0 option that puts their work fully into the public domain (or at least as fully as you can under a copyright system that provides no clear legal mechanism for doing so). In the past year, the use of CC0 has been growing, largely thanks to some specific projects like the the release of a large collection from the Metropolitan Museum of Art which I wrote about a couple months ago, and the public-domain-focused photography platform Unsplash. Hopefully the success and usefulness of these projects drives even more creators and platform operators to embrace CC0 (many content sharing platforms still don't even give uploaders the option, with CC-BY as the least restrictive license available).

Non-Commercial Licenses Are The Minority

Casting the net a little wider than pure public domain dedications, there's an even bigger trend away from the more restrictive CC options. We've discussed many times in the past how "non-commercial" is an extremely problematic requirement in an era where the lines between commercial and non- are often extremely blurry. Similarly, "no derivatives" cuts of countless avenues of positive, productive use of content, and creates even more uncertainty around exactly what is allowed — and under a harsh copyright regime with hefty penalties for infringement, uncertainty is functionally pretty close to just being blocked altogether. So it's great to see that licenses which allow remixing and commercial use are continuing to increase as a proportion of all CC licenses, reaching 65% this year.

The Commons Is Huge

In 2016, there were 1.2-billion works published with Creative Commons licenses. Though growth has slowed slightly since the count passed the one-billion mark last year, it shows no signs of stopping. Ten years ago, there were only 140-million such works.

Many of the discussions at the summit are focused on how to push these trends forwards even further, both in specific areas of interest and in the commons as a whole. We'll have closer looks at some of these ideas soon, but for now check out the full report to learn more — and get ready for the Made With Creative Commons book (a collection of examples of CC work, plus insights from artists on how they have built sustainable open culture businesses, and advice on using CC with your own work) which will be available as a free ebook on May 5th.

Filed Under: copyright, creative commons, free culture, licensing

Guy Fined $500 For Criticizing Government Without A Permit Sues Oregon Licensing Board

from the with-a-special-appearance-by-[STATE-REVENUE-GENERATOR-A] dept

Government entities tend to dislike people who criticize red light cameras. There's little evidence supporting the theory they make driving safer, but there's plenty of data out there showing just how profitable they can be, especially with a little fine tuning.

When someone takes it upon themselves to dig into traffic cameras, they make few friends at city hall. Oregon resident Mats Jarlstrom's interest in red light cameras was piqued like so many others: by receiving a ticket. Unlike some others, Jarlstrom has a background in electronic engineering and the inherent inquisitiveness to follow through on a thorough examination of yellow light timing. He did some math and came to the conclusion the timing was off.

In his view, the leading mathematical formula for calculating the proper length of yellow lights (dating back to 1959) is incomplete, because it fails to account for how drivers decelerate before making a right-hand turn. Mats’s revised theory addresses that issue; his formula is based on the 1959 model but also factors in the time needed for turning drivers to clear the intersection.

Jarlstrom's apparent mistake was not keeping these findings to himself. He spoke to local news stations about his research and presented his conclusions to a national conference of transportation engineers. The only entity that didn't want to hear anything about his yellow light research was his local government. He tried to present his findings to the state traffic engineering body but found it less than receptive to new ideas.

In response to Jarlstrom's exercise of his First Amendment rights, the Oregon state engineering licensing board opened an investigation. Unsurprisingly, it arrived at the conclusion that it hadn't handed out an engineering license to Jarlstrom. Surprisingly, this effort wasted nearly two years of taxpayer time and money.

According to the Board, Mats illegally practiced engineering without a license every time he “critique[d]” the existing traffic-light system and shared his ideas with “members of the public.” Even his e-mail to the creator of the original formula was ruled illegal. So was his correspondence with local media.

Weird. Stupid. But at least the licensing law is narrowly-tailored, right?

The practice of engineering is defined to cover “any . . . creative work requiring engineering education, training and experience.” And the law is just as sweeping as it sounds. Even the Oregon Attorney General’s Office has admitted that it’s “a broad definition which may have a particular meaning to those persons trained and knowledgeable in engineering but may be unclear to anyone else.”

Having found something to use against a critic of outdated traffic light measuring systems, the Oregon licensing board went all out. It told Jarlstrom he could no longer refer to himself as an "engineer" (despite his BS in electronic engineering). It compiled a list of nine violations and fined him $500.

It also nailed down something else: the starring role of defendant in an upcoming civil rights lawsuit, as the Institute for Justice reports:

Today he filed a lawsuit [PDF] against the board in federal court challenging the constitutionality of the state’s requirement that citizens must obtain an engineering license in order to publicly debate anything involving “engineering.”

IJ points out the board's regulation of speech is not just unconstitutional, it's ridiculous.

Criticizing the government’s engineering isn’t a crime; it’s a constitutional right,” said Sam Gedge, an attorney at the Institute for Justice, which represents Mats in the lawsuit. “Under the First Amendment, you don’t need to be a licensed lawyer to write an article critical of a Supreme Court decision, you don’t need to be a licensed landscape architect to create a gardening blog, and you don’t need to be a licensed engineer to talk about traffic lights. Whether or not you use math, criticizing the government is a core constitutional right that cannot be hampered by onerous licensing requirements.”

In essence, the Oregon board fined Mats Jarlstrom for doing math and then talking about it. Apparently, no one's allowed to do their own math and speak publicly about it without the express, licensed permission of the state's regulators. While the board is there to prevent non-engineers from harming the public by building faulty bridges and buildings (or, more to the point, fiddling with traffic light timing to drivers' detriment), it shouldn't be able to keep anyone from discussing their own research or referring to their engineering background and expertise.

Jarlstrom simply wanted his findings to be considered. He had no power to alter traffic light timing or otherwise pose some sort of safety risk to Oregon drivers. And yet, the licensing board subjected him to a lengthy investigation and told him what he could and couldn't discuss publicly. Apparently certain topics of discussion are off limits to the general public unless the government ok's it through a very long and expensive process.

Like many government things, the underlying concept is good, but the execution is horrible. And, in this case, the government was less concerned with the safety of the public than with shutting up a critic poking holes in long-held government theories.

Filed Under: engineering, licensing, mats jarlstrom, oregon, red light cameras