From sunil at mahiti.org Fri Aug 1 11:26:02 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 01 Aug 2003 11:26:02 +0530 Subject: [Commons-Law] Watch what you surf, Net police are here Message-ID: <1059717361.1839.65.camel@mahitilaptop.mahitinet> Watch what you surf, Net police are here MUMBAI: The thought police is gearing up to storm the virtual world. In what appears to be its first serious attempt to monitor the Internet, the Government of India has outlined an official procedure for blocking websites. An order issued by the department of information technology on July 7 enables a bunch of bureaucrats to decide the websites Indian surfers are allowed to access. ``This is the first formal step towards Internet censorship in Indian law,'' warns Somasekhar Sundaresan, a lawyer who specialises in technology issues. ``The order provides the State with sweeping powers to police Internet content. For example, news breaks such as those in Tehelka.com can simply be blocked by the government using these powers.'' Interestingly, the Information Technology Act, 2000, only provides for the blocking of pornographic websites and the monitoring of websites which endanger public order, the integrity and security of the nation and relations with other countries. But the new diktat goes a few steps further permitting the blacking out of ``websites promoting hate content, slander or defamation of others, promoting gambling, promoting racism, violence and terrorism and other such material, in addition to promoting pornography, including child pornography and violent sex''. The order No. GSR529(E) goes on to add: ``Blocking of such websites may be equated to balanced flow of information and not censorship.'' Critics, however, point out that much can be accommodated under this umbrella clause. According to the order, various agencies including central and state home departments, the courts, CBI, IB, police and the chairman of the National Human Rights Commission can submit a complaint to the director of Cert-In, a new organisation which has been set up by the government to address IT security issues. This will then be examined by a committee comprising bureaucrats from Cert-In, the department of information technology and the law or home ministry. The committee will ``meet and take on the spot decision on whether the website is to be blocked or not''. Neither the producers of the website nor those with a contrary point of view are to be given a hearing. http://timesofindia.indiatimes.com/cms.dll/html/uncomp/articleshow? msid=105813 ------------------------ Yahoo! Groups Sponsor ---------------------~--> Buy Ink Cartridges or Refill Kits for Your HP, Epson, Canon or Lexmark Printer at Myinks.com. Free s/h on orders $50 or more to the US & Canada. http://www.c1tracking.com/l.asp?cid=5511 http://us.click.yahoo.com/sO0ANB/LIdGAA/ySSFAA/bR.olB/TM ---------------------------------------------------------------------~-> To unsubscribe from this group, send an email to: India-egov-unsubscribe at yahoogroups.com Your use of Yahoo! Groups is subject to http://docs.yahoo.com/info/terms/ -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw From jace at pobox.com Fri Aug 1 14:20:17 2003 From: jace at pobox.com (Kiran Jonnalagadda) Date: Fri, 1 Aug 2003 14:20:17 +0530 Subject: [Commons-Law] Watch what you surf, Net police are here In-Reply-To: <1059717361.1839.65.camel@mahitilaptop.mahitinet> Message-ID: <2C9754D4-C3FD-11D7-84AF-000A95684A18@pobox.com> On Friday, August 1, 2003, at 11:26 AM, Sunil Abraham wrote: > MUMBAI: The thought police is gearing up to storm the virtual world. > In what appears to be its first serious attempt to monitor the > Internet, the Government of India has outlined an official procedure > for blocking websites. Can anyone comment on whether such censorship is a violation of the Indian constitution? Article 19, clauses 1a and 2 specifically deal with this: """ Article 19 Protection of certain rights regarding freedom of speech, etc. (1) All citizens shall have the right - (a) to freedom of speech and expression; ... (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. ... """ Source: http://www.oefre.unibe.ch/law/icl/in00000_.html -- Kiran Jonnalagadda http://www.pobox.com/~jace From badri at eff.org Fri Aug 1 14:43:18 2003 From: badri at eff.org (Badri Natarajan) Date: Fri, 01 Aug 2003 02:13:18 -0700 Subject: [Commons-Law] Watch what you surf, Net police are here In-Reply-To: <2C9754D4-C3FD-11D7-84AF-000A95684A18@pobox.com> References: <1059717361.1839.65.camel@mahitilaptop.mahitinet> Message-ID: <5.2.1.1.1.20030801020036.00a846e8@mail.lawentrance.com> At 02:20 PM 8/1/2003 +0530, you wrote: >On Friday, August 1, 2003, at 11:26 AM, Sunil Abraham wrote: > >>MUMBAI: The thought police is gearing up to storm the virtual world. >>In what appears to be its first serious attempt to monitor the >>Internet, the Government of India has outlined an official procedure >>for blocking websites. > >Can anyone comment on whether such censorship is a violation of the Indian >constitution? Article 19, clauses 1a and 2 specifically deal with this: > >""" >Article 19 Protection of certain rights regarding freedom of speech, etc. > > (1) All citizens shall have the right - > (a) to freedom of speech and expression; > ... > (2) Nothing in sub-clause (a) of clause (1) shall affect the operation > of any existing law, or prevent the State from making any law, in so far > as such law imposes reasonable restrictions on the exercise of the right > conferred by the said sub-clause in the interests of the sovereignty and > integrity of India, the security of the State, friendly relations with > foreign States, public order, decency or morality, or in relation to > contempt of court, defamation or incitement to an offence. Kiran, Censorship per se is not a violation of A.19(1)(a), as long as falls within the ambit of 19(2). That is, it has to be a "reasonable" restriction on freedom of speech, *and*, it has to be exclusively for the purposes mentioned in 19(2). If it fails to satisfy either requirement then it would fall foul of A.19(1)(a). For example, the Censor Board censors films in the interests of (among others), preserving "morality and decency". This is Constitutionally valid. Here, when I say "censorship", I mean state approval of what you publish/screen, etc, before you actually do it. Contrast this with the American law, where, under the First Amendment, there is a very strong tradition of not allowing "prior restraint" of speech by the Government except in very, very limited circumstances, which are far narrower than the ones given in our A.19(2). The American view is that people can say or publish what they want, but they have to be prepared to face the consequences *afterwards*. (Such as criminal charges for obscenity, defamation,etc). If you're interested in the American law, there is an excellent article on Salon.com, part of their "Documents of Freedom" series about the Pentagon Papers case which is a great example of these principles. (And the arguments and principles at stake are universal, not just American..) http://www.salon.com/opinion/freedom/2003/07/01/pentagon_papers/index.html Badri From lawrenceliang at vsnl.net Sat Aug 2 08:12:34 2003 From: lawrenceliang at vsnl.net (lawrenceliang at vsnl.net) Date: Fri, 1 Aug 2003 21:42:34 -0500 (GMT) Subject: [Commons-Law] On Censorship and freedom of speech Message-ID: <200308020242.h722gY507400@webmail2.vsnl.net> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20030801/f51f5119/attachment.pl From jace at pobox.com Fri Aug 1 23:32:14 2003 From: jace at pobox.com (Kiran Jonnalagadda) Date: Fri, 1 Aug 2003 23:32:14 +0530 Subject: [Commons-Law] Watch what you surf, Net police are here In-Reply-To: <5.2.1.1.1.20030801020036.00a846e8@mail.lawentrance.com> Message-ID: <48079AF4-C44A-11D7-84AF-000A95684A18@pobox.com> On Friday, August 1, 2003, at 02:43 PM, Badri Natarajan wrote: > Here, when I say "censorship", I mean state approval of what you > publish/screen, etc, before you actually do it. Contrast this with the > American law, where, under the First Amendment, there is a very strong > tradition of not allowing "prior restraint" of speech by the > Government except in very, very limited circumstances, which are far > narrower than the ones given in our A.19(2). The American view is that > people can say or publish what they want, but they have to be prepared > to face the consequences *afterwards*. (Such as criminal charges for > obscenity, defamation,etc). So in effect, in India it is pre-censorship, while in the US it is publish-then-sue? How do Indian movie theatres manage to screen porn movies and even advertise the movie in newspapers (anyone remember ads for movies at Sangam theatre in Bangalore?) -- Kiran Jonnalagadda http://www.pobox.com/~jace From badri at eff.org Sat Aug 2 00:47:18 2003 From: badri at eff.org (Badri Natarajan) Date: Fri, 01 Aug 2003 12:17:18 -0700 Subject: [Commons-Law] Watch what you surf, Net police are here In-Reply-To: <48079AF4-C44A-11D7-84AF-000A95684A18@pobox.com> References: <5.2.1.1.1.20030801020036.00a846e8@mail.lawentrance.com> Message-ID: <5.2.1.1.1.20030801120453.00a99128@mail.lawentrance.com> At 11:32 PM 8/1/2003 +0530, you wrote: >On Friday, August 1, 2003, at 02:43 PM, Badri Natarajan wrote: > >>Here, when I say "censorship", I mean state approval of what you >>publish/screen, etc, before you actually do it. Contrast this with the >>American law, where, under the First Amendment, there is a very strong >>tradition of not allowing "prior restraint" of speech by the Government >>except in very, very limited circumstances, which are far narrower than >>the ones given in our A.19(2). The American view is that people can say >>or publish what they want, but they have to be prepared to face the >>consequences *afterwards*. (Such as criminal charges for obscenity, >>defamation,etc). > >So in effect, in India it is pre-censorship, while in the US it is >publish-then-sue? How do Indian movie theatres manage to screen porn >movies and even advertise the movie in newspapers (anyone remember ads for >movies at Sangam theatre in Bangalore?) Well, even in India you can have publish-then-sue - we have laws for obscenity and defamation as well. But as a practical matter most of the censorship happens before the movie is released. Remember newspaper articles about censors demanding cuts and the filmmakers refusing to comply, and thus holding release of films? You see them pretty often. I'm not certain how Indian movie theaters manage to screen porn movies, but I think the movies are relatively tame porn movies, and besides, there is a fair amount of latitude given to movies with "A" certification. What really disturbs me is the censorship of political statements, like the shot of a Bal Thackeray lookalike, inciting crowds, in the movie Bombay, which was cut. As for newspapers - I should have mentioned earlier that (as Lawrence's extract of the KA Abbas case shows) the Supreme Court has upheld a higher standard of censorship for movies as constitutionally valid because it is such a "poweful" medium of expression. Print media has traditionally *not* been censored in India, and I believe that one of things that actually works in our system is freedom of the press. This is why it was such a huge shock when even the print media was censored during the Emergency. And I might add that the statement in Lawrence's excerpted article that "censorship in the US and England is done by a private body while it is done by the Government in India" is rather misleading. Organizations like the MPAA in the US *rate* movies. They do not censor them. Sure, sometimes they can ask for cuts so that they can award a certain lower-age rating, instead of a higher-age one. But nobody is *compelling* the movie maker to comply. He can choose to make the cuts so that he gets a lower rating and more people will see the movie. Or he can refuse, and still release the movie and maintain its artistic purity or whatever. He can even refuse to submit the money for classification and release it as "unrated". This is very much unlike the Indian scene, where you either agree to what the Censor Board wants, or your movie is banned in India. Besides, the right to freedom of speech is designed to ensure that the *Government* does not interfere with speech, not private bodies. Badri From jace at pobox.com Sat Aug 2 01:03:13 2003 From: jace at pobox.com (Kiran Jonnalagadda) Date: Sat, 2 Aug 2003 01:03:13 +0530 Subject: [Commons-Law] On Censorship and freedom of speech In-Reply-To: <200308020242.h722gY507400@webmail2.vsnl.net> Message-ID: On Saturday, August 2, 2003, at 08:12 AM, lawrenceliang at vsnl.net wrote: > Freedom of expression should not be used as the justification for > commercial film makers to make vulgar and shoddy films that have a lot > of “mass appeal”. *ahem* That means what they censor is worse than what Bollywood dishes out? I'm going to have nightmares from Mithun Chakraborthy movies tonight. > No picture shall be certified for public exhibition which will lower > moral standards of those who see it. Hence, the sympathy of the > audience shall not be thrown on the side of crime, wrong-doing, evil > or sin. > Standards of life, having regard to the standards of the country and > the people to which the story relates, shall not be so portrayed as to > deprave the morality of the audience. > The prevailing laws shall not be so ridiculed as to create sympathy > for violation of such laws. This means that: (1) It is not okay to make a movie that makes a hero of a criminal, but it is okay to make a movie about a guy who kills other guys because they are bad guys. (2) Statement (1) is illegal because it ridicules existing laws. > A television can display material that a child can stumble on at any > time while watching. The medium of television is pervasive and invades > the home bringing in material over which the viewer has little > control. On the other hand, the Internet is an interactive medium > where the individual from when s/he logs on to the Internet, chooses > where s > /he wants to go. By this definition, movies are closer to the Internet than to television, since I have to choose to go to a cinema theatre and pay for entry. So (a) why does the above document make such a hoo-ha about censoring movies, and (b) why are so many movies made in India so offensive to moral sensibilities despite censorship? -- Kiran Jonnalagadda http://www.pobox.com/~jace From lawrenceliang at vsnl.net Sat Aug 2 20:25:52 2003 From: lawrenceliang at vsnl.net (lawrenceliang at vsnl.net) Date: Sat, 2 Aug 2003 09:55:52 -0500 (GMT) Subject: [Commons-Law] Michael Jackson on Online Music Piracy Bill Message-ID: <200308021455.h72Etqe13146@webmail2.vsnl.net> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20030802/3aa68760/attachment.pl From sunil at mahiti.org Mon Aug 4 18:15:12 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 04 Aug 2003 18:15:12 +0530 Subject: [Commons-Law] respectcopyrights.org Message-ID: <1060001110.3017.156.camel@mahitilaptop.mahitinet> This really made me ROTFL. Especially looking at the faces of the thousands of people whose livelihoods are being threatened. Please see: http://www.respectcopyrights.org/whyshouldicare.html We need a site with pictures of HIV/AIDS victims - I was thinking copyrights-kill.org or patents-kill.org Thanks, Sunil -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw From badri at eff.org Tue Aug 5 03:18:21 2003 From: badri at eff.org (Badri Natarajan) Date: Mon, 04 Aug 2003 14:48:21 -0700 Subject: [Commons-Law] Bradford fails in Supreme Court Message-ID: <5.1.0.14.1.20030804144648.00a75c88@mail.lawentrance.com> http://www.hindustantimes.com/news/181_329198,0008.htm SC rejects Bradford's petition against Karishma Press Trust of India New Delhi, August 4 In a setback to US-based novelist Barbara Taylor Bradford, the Supreme Court on Monday rejected her plea seeking stay on telecast of the Rs 60-crore Sahara TV serial "Karishma - A Miracle of Destiny" but waived off the huge cost and damages imposed on her by the Calcutta High Court. A Bench comprising Justice N Santosh Hegde and Justice B P Singh passed this order while saying it would not interfere with the judgement of the High Court dismissing her plea to restrain the telecast of the serial. Bradford had alleged that the serial was an unauthorised copy of her famous novel "A Woman of Substance". However, the Bench felt that as the High Court had passed the order at an interim stage, it should not have awarded costs and damages against Bradford, who could still take the matter for trial. It was only after weighing the evidence on plagiarisation alleged by the New York-based novelist that a final order on her claim could be passed. Appearing for the TV channel, senior advocate Fali S Nariman agreed that no costs at this stage could have been imposed on the novelist at this stage. A Division Bench of the High Court had on July 21 allowed telecast of the 280-episode serial starring Bollywood star Karishma Kapoor and directed the novelist to pay damages for the delay in the serial's telecast as well as litigation cost. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20030804/eaa16334/attachment.html From sunil at mahiti.org Tue Aug 5 13:04:07 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 05 Aug 2003 13:04:07 +0530 Subject: [Commons-Law] Red Hat Fires Back Message-ID: <1060068846.6749.8.camel@mahitilaptop.mahitinet> http://newsforge.com/newsforge/03/08/04/1813224.shtml?tid=23 Monday August 04, 2003 - [ 06:09 PM GMT ] Topic - GNU/Linux - by Joe Barr - Red Hat announced today a two-pronged attack against the SCO Group. Red Hat filed a claim for two declaratory judgements: that they had not infringed on SCO's copyright material and that they didn't misappropriate SCO trade secrets. The complaint also seeks a permanent injunction against SCO for their "campaign" against Linux and Linux customers. Red Hat also announced a one milliar dollar donation to a fund for the defense of open source developers against open source developers for infringement and invited other companies to follow suit. Red Hat came out swinging in the 27 page complaint filed in the U. S. District Court in Delaware against The SCO Group. The opening sentence of the complaint states that Red Hat "has commenced this action in response to the unfair, untrue and deceptive campaign now being waged by the defendent, The SCO Group, Inc. ("SCO"), to harm the market for Red Hat's highly successful operating system based on the open source LINUX kernel." In addition to asking for declaratory judgement of two items (that Red Hat did not infringe upon SCO's copyrights or misappropriate SCO's trade secrets), the complaint asks "damages, trebled, as well as injunctive relief, attorneys' fees and costs, for harm caused by SCO's unfair competition and false advertising in violation of Section 43(a) of the Lanham Act... unfair and deceptive acts or practices in violation of the Delaware Deceptive Trade Practices Act... as well as for violations of common law, including trade libel, unfair competition, and tortious interference with prospective economic advantage". In the press conference announcing the suit held this morning at the Linux World Conference and Expo being held in San Francisco, a Red Hat spokesman said the aim of the suit "is to help our customers. Customers were brought into this process and received threatening letters from SCO. Customers have been threatened and extorted that if they don't ante up X amount of money, they will face legal consequences." Shares in The SCO Group fell over two dollars on the news, but have rebounded slightly and are now trading at $11.32 a share, down from its high for the day of $13.75. -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw From lawrenceliang at vsnl.net Wed Aug 6 01:05:57 2003 From: lawrenceliang at vsnl.net (lawrenceliang at vsnl.net) Date: Tue, 5 Aug 2003 14:35:57 -0500 (GMT) Subject: [Commons-Law] Order of SC on Barbara Taylor Bradford Message-ID: <200308051935.h75JZvR08456@webmail2.vsnl.net> An embedded and charset-unspecified text was scrubbed... Name: not available Url: http://mail.sarai.net/pipermail/commons-law/attachments/20030805/5dfc1a08/attachment.pl From jace at pobox.com Thu Aug 7 13:05:27 2003 From: jace at pobox.com (Kiran Jonnalagadda) Date: Thu, 7 Aug 2003 13:05:27 +0530 Subject: [Commons-Law] Fwd: Legal indian Porn? Message-ID: This is related to the recent discussion on censorship in India. It seems screening porn movies in public theatres is illegal after all. Begin forwarded message: > From: "Srinivasan Ramakrishnan" > Date: Thu Aug 7, 2003 4:53:02 AM Asia/Calcutta > > About time they put an end to the hypocrisy. > > -Srini > > -- > > > http://news.bbc.co.uk/1/hi/entertainment/film/2099470.stm > > > Saturday, 6 July, 2002, 07:47 GMT 08:47 UK > > > Indian censors submit to porn > India's film censors have decided to screen pornographic films in > dedicated > cinemas to try to control the huge popularity of adult films in the > country. > The BBC's Suniti Singh looks at their decision. > > It was rather strange that the idea to screen pornographic films in > special > theatres in India came from the censor board itself. > > The chairman of the Central Board of Film Certification (CBFC), Vijay > Anand, > said: "The business of sex films is thriving in India because there is > a > demand for such films." > > "Since we are unable to control it, we might as well try to regulate > it." > > The screening of pornographic films is currently illegal in India, but > virtually every city has theatres which do so. > > Mostly in morning shows, the theatres circumvent the censor rules by > re-inserting deleted scenes and bribing the local police. > > They also allow people who are under-age to see the films. > > The censor board has even hired private detectives to crack down on > such > theatres, but is left in frustration. > > An onslaught of sex films reaching people's home via satellite and > cable > television has not left much choice for the censor board. > > Confused > > The CBFC has always tried to act as the custodian of Indian morality, > causing constant public conflict with film-makers. > > Many feel the board's decisions have often reflected confused > standards. > > Titillating dance movements, pointless rape scenes and obscene double > entendres are passed without a hitch. But showing sex as a progression > of > love and relationship is an absolute no. > > Even a kiss between consenting adults is not welcome. > > Mahesh Bhatt was refused a certificate for his film Zakhm, on grounds > that > it could provoke communal disharmony. > > The film later won the award for best feature on national integration > from > the Indian Government. > > Director Jagmohan Mundhra's film Bawandar tried to bring to life the > true > story of an illiterate social worker of Rajasthan, who was raped three > times > but did not give up her conviction to fight for the truth. > > The censor board considered the realistic portrayal of her plight > obscene. > > And it objected to the name of Nagesh Kukunoor's Hyderabad Blues - > because > it found the word "blue" misleading. > > Perturbed by the constant censorship troubles over his films, actor and > director Dev Anand went to the extent of making a film to express his > discontent - aptly named Censor. > > Renowned film director Shekhar Kapoor got into a bitter battle with the > censor board over the cuts ordered for his Oscar-nominated film, > Elizabeth. > > In an open letter to the then censor chairperson, Asha Parekh, he > called the > board "ignorant, irresponsible, arrogant and arbitrary". > > Controversial > > Is India ready for the radical step of screening pornographic films in > dedicated cinemas? > > That is the debate raging in the country ever since the censor board > chief > Vijay Anand first mooted the idea. > > Veteran actress and member of parliament, Vjyanthimala Bali, strongly > criticises the proposal, saying: "We are not Americans." > > On the other hand, liberals like director Mahesh Bhatt have welcomed > this > move. > > But the surprise comes from the board itself. Former director Asha > Parekh, > who is known for her rigid ways, approves this but has doubts whether > it can > actually be implemented. > > "How will the board ensure that under-age people are not going to these > proposed theatres and watching pornographic films?" she asks. > > There is also the fear of a public outrage. > > Deepa Mehta's film Fire - which showed a homosexual relationship > between two > women - managed to avoid the censors' scissors but it was a different > story > when it opened to the public. > > Political and women's groups, along with other members of the public, > disrupted screenings. > > However, Vijay Anand seems determined to present his proposal before > the > information and broadcasting ministry within two months. > > "I am prepared for all that comes," he says. > > > > > > > -- Kiran Jonnalagadda http://www.pobox.com/~jace From sunil at mahiti.org Thu Aug 7 14:54:48 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 07 Aug 2003 14:54:48 +0530 Subject: [Commons-Law] SCO wants $32 for each embedded Linux device Message-ID: <1060248286.2134.115.camel@mahitilaptop.mahitinet> http://www.eetimes.com/story/OEG20030806S0025 SCO wants $32 for each embedded Linux device By Rick Merritt EE Times August 6, 2003 (6:02 p.m. ET) [image][image] SAN JOSE, Calif. The SCO Group said Tuesday (August 5) it wants $32 for each embedded system using Linux. That request stems from the Lindon, Utah company's claim that Linux versions 2.4 and above contains code that infringes on its Unix software. SCO is currently suing IBM Corp. for breech of contract for allegedly supplying some of that Unix code as part of the open source development process for Linux. After IBM, large businesses using Linux servers are SCO's first target. The company sent letters to about 1,500 large companies it believes could be running such servers. Through October, it will charge them $699 for rights to its Unix code for each single-CPU Linux server they operate, after that charge double. [image] [image][image] In a less well-publicized part of the company's licensing terms, announced Tuesday (August 5), SCO said it will charge OEMs $32 per unit for each embedded Linux device they own. The $32 fee applies to any embedded system regardless of whether it is a Tivo set-top box which uses embedded Linux or some models of the Sharp Zaurus which also use that kernel. A diverse group of embedded systems that market watchers number in the millions currently use embedded Linux. They range from consumer and handheld systems to networking devices such as routers and firewalls, medical equipment and some military electronic systems use Linux. Venture Development Corp. pegs sales of embedded Linux tools and services at $62.6 million in 2002, a market growing at compound rate of 20.1 percent through 2007. SCO will seek royalties from OEMs though it is not yet pursuing such companies actively, according to a company spokesman. However, analysts said if the company is successful establishing its claims with server users, embedded systems could be the SCO's next target. SCO's chief executive Daryl McBride did travel to Japan in July to make his case with eight consumer electronics companies there after they set up the CE Linux Forum. McBride met with at least on Fujitsu executive on that trip, the spokesman said. "This situation is rather odd in a lot of ways," said Gordon Haff, a senior analyst at Illuminata (Nashua, N.H.). For instance, SCO was formerly Caldera International Inc., a Linux distributor and developer before it abandoned Linux to focus on Unix, Haff noted. SCO has not detailed its infringement claims, but the company has shown a portion of its infringed Unix code to people willing to sign non-disclosure agreements. Haff claims if SCO did detail all the allegedly infringed code, developers could write new code to replace it, defusing the situation. For its part, SCO claims it has lost to free Linux distributions substantial revenue it might have gained from Unix sales. If SCO is successful in establishing its claims, "Linux would die," said Haff. But he doesn't expect that will happen."It's hard to say what will happen in a complicated legal case, but from my perspective this is a Hail Mary pass from a company that the market has passed by," said Haff. It its most recent earnings report, SCO reported declines in product and services revenue in the six months ending April 2003 compared to the same period last year. However, those declines were offset by $8 in new licensing revenues. The company also turned a profit of $3.7 million in the recent period compared to a $17.6 million net loss for the year-ago period. The embedded Linux licensing move "is extortion based on fraud. They are out to shake down people for what they can get," said Inder Singh, chairman of the Embedded Linux Consortium and chief executive of embedded Linux and real-time operating system maker LynuxWorks (San Jose). Neither the consortium nor his company has had any communications from SCO on the royalty demand, Singh said. "We will wait until they show us something," that infringes their code, before taking any action on the licensing move, he added. -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw From sunil at mahiti.org Thu Aug 7 15:03:19 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 07 Aug 2003 15:03:19 +0530 Subject: [Commons-Law] SCO to government Linux users: Pay up Message-ID: <1060248798.2134.118.camel@mahitilaptop.mahitinet> http://www.washingtontechnology.com/news/1_1/daily_news/21384-1.html By Joab Jackson Staff Writer Government agencies must pay up to $699 for each copy of the Linux operating system that they use, the SCO Group Inc., Lindon, Utah, announced Tuesday in a new licensing program. However, SCO’s intellectual property claims over Linux remain contested by other parties. “We believe it is necessary for Linux customers to properly license SCO’s [intellectual property] if they are running Linux … for commercial purposes,” said Chris Sontag, who is a senior vice president of SCO. Use of any Linux distribution can cause liability, regardless of vendor, the company claimed. “Government agencies shouldn’t be too worried about this until they see more evidence,” said Tony Stanco, head of the Center for Open Source and Government and associate director of the Cyber Security Policy and Research Institute at George Washington University. SCO has claimed that the 2.4 and 2.5 versions of the Linux kernel is embedded with code that SCO holds intellectual property rights on. At least some of the code in question supposedly comes from the Unix Systems V operating system, a proprietary systems that SCO purchased the rights to from Novell Inc., Provo, Utah in 1995. In March, SCO sued IBM for $1 billion over misuse of the intellectual property rights to the Unix operating system. The company claimed that IBM inappropriately added some of SCO’s Unix proprietary code to Linux. Other parties remain skeptical of the company’s legitimacy to the licensing fees. Stanco said that SCO’s licensing fees are unusual in that a court of law hasn’t determined that the intellectual property is clearly SCO’s yet. “You don’t try to get money until the issues are resolved in your favor,” he said. Blake Stowell, director of corporate communications for SCO said that the IBM suit is unrelated to the present licensing initiative. Although some of the overlapping code comes from IBM, there are other parts of the code that leaked into Linux from other sources, Stowell said. “We’ll be happy to show [agencies] proof, providing they sign a nondisclosure agreement,” Stowell said. John Weathersby, chairman of the Open Source Software Institute said the government clients he works with have no immediate plans to pay the fee. The Oxford, Miss.-based nonprofit Open Source Software Institute was founded in 2001 to promote government use of open-source software, or software in which the source code is included with the software package. IBM would not comment on if it has plans to pay SCO fees on behalf of its customers using Linux-based IBM solutions. In May, IBM Corp., Amonk, N.Y., reported that it has more than 75 government customers using Linux solutions, including the Federal Aviation Administration, the Department of Agriculture and the Department of Energy’s National Energy Research Scientific Computing Center. Between private and public sector customers, IBM has over 6,300 Linux-based implementations. “IBM has remains absolutely committed to providing Linux-based solutions to its customers,” a spokeswoman said. In anticipation of lawsuits from SCO, Linux vendor Red Hat Inc., established a $1 million fund to cover legal expenses associated with infringement claims brought against companies from SCO and other companies developing open source software. “Red Hat has a responsibility to ensure the legal rights of users are protected,” said Matthew Szulik, chairman and CEO of Red Hat. According to the new licensing program, Linux use on a server will cost $699 per central processor unit, or CPU, through Oct. 15. Use on desktop computers cost $199 per copy. Pricing for multiple CPU systems and embedded systems are also available. The pricing structure can be found at www.sco.com/scosource/description.html. Stowell said the company has no immediate plans to file suit against government agencies using Linux, but rather plans to speak with individual offices about buying licenses first. The company has no dedicated sales office, but does have representatives dedicated to government sales. SCO reported $64.2 million in revenue for 2002, with a loss of $24.9 million, according to Hoover’s Online of Austin Texas. -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw From sudhir_krishnaswamy at vsnl.net Thu Aug 7 14:05:02 2003 From: sudhir_krishnaswamy at vsnl.net (Sudhir Krishnaswamy) Date: Thu, 7 Aug 2003 14:05:02 +0530 Subject: [Commons-Law] Patent battles around wheat Message-ID: <002e01c35cbe$d1d56270$9f01a8c0@Sudhir> Posted below is a news article detailing RFSTE's decision to challenge a European patent granted to Monsanto on a wheat variety on the grounds that it is derived from an Indian wheat variety. Unlike with the neem and basmati patents it's clear that the patentee, Monsanto, perceives this as a threat and has launched an intense media counter-campaign! Watch this space Sudhir Patent for wheat variety to be challenged http://www.hinduonnet.com/thehindu/2003/08/06/stories/2003080604191200.htm By Our Special Correspondent NEW DELHI Aug. 5. After having successfully challenged neem and basmati patents, the Delhi-based Research Foundation for Science, Technology and Ecology (RFSTE) has now proposed to challenge the patent recently granted to Monsanto for a new wheat variety. Addressing a press conference, the Director of RFSTE, Vandana Shiva, said the patent would be challenged on the ground that there was nothing novel about the variety as it had been developed by cross breeding an Indian variety that had been bred, conserved and grown by farmers here over centuries. The patent had been obtained by Monsanto from the European Patent Office on the ground that the flour produced from the new variety had a low level of elasticity. But this trait had been derived from the native Indian variety. Several international NGOs, including Greenpeace, had agreed to support the move to challenge the patent, she said. The grant of patent to Monsanto, she said, was harmful to Indian interests as there was a growing international demand for products such as semi-sweet biscuits, non-fermented crackers, wafers, and other food items made from flour which had low elasticity. At present, no wheat variety was available commercially in the developed world which had this trait and consequently the manufacturers had to use chemicals. This was posing a problem as there was growing consumer pressure for products that were not chemically treated. With Monsanto getting the patent, the possibility for India to tap the potential market for low elastic wheat has been blocked. Interestingly, even as Ms. Shiva was holding her press conference, a group of employees of a public relations agency representing Monsanto stood outside the venue distributing a press release giving the company's response to the controversy. Pointing out that what had been granted was only a process and not a product patent, the release said there was no restriction on Indian farmers and scientists to use the traditional Indian variety for future research. Indian farmers would even be able to plant the newly developed variety freely. Later, speaking to The Hindu, Ranjana Smetacek, Director, Public Affairs of Monsanto, said that the European patent laws were very strict and the fact that the variety has been granted patent meant that it was worthy of being patented. She also said that the patent application was filed as early as in 1991 and it has granted only now. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20030807/5d238685/attachment.html From shamnadbasheer at yahoo.co.in Thu Aug 7 23:30:42 2003 From: shamnadbasheer at yahoo.co.in (=?iso-8859-1?q?Shamnad=20Basheer?=) Date: Thu, 7 Aug 2003 19:00:42 +0100 (BST) Subject: [Commons-Law] Patent battles around wheat In-Reply-To: <002e01c35cbe$d1d56270$9f01a8c0@Sudhir> Message-ID: <20030807180042.35424.qmail@web8004.mail.in.yahoo.com> Later, speaking to The Hindu, Ranjana Smetacek, Director, Public Affairs of Monsanto, said that the European patent laws were very strict and the fact that the variety has been granted patent meant that it was worthy of being patented. She also said that the patent application was filed as early as in 1991 and it has granted only now. not sure of the merits of the patent (it may be possible, as they argue that the process is a novel one-albeit using a known variety-in much the same way as the texmati strain was a novel one), but it does seem counterintuitive in this context to argue that strict patent prerequisites translate to worthy patents-as at least in the context of traditional knowledge, a large part remains undocumented (or available in obscure publications) and the patent office may not have access to such knowledge in order to deny the patent on grounds of a lack of novelty. the argument that a longer patent examination period converts to a worthier patent is even more laughable (if this is what monsanto is trying to suggest)-by this yardstick, patents granted in india would be the worthiest, as our patent office is renowned for taking their own sweet time. shamnad Sudhir Krishnaswamy wrote: Posted below is a news article detailing RFSTE's decision to challenge a European patent granted to Monsanto on a wheat variety on the grounds that it is derived from an Indian wheat variety. Unlike with the neem and basmati patents it's clear that the patentee, Monsanto, perceives this as a threat and has launched an intense media counter-campaign! Watch this space Sudhir Patent for wheat variety to be challenged http://www.hinduonnet.com/thehindu/2003/08/06/stories/2003080604191200.htm By Our Special Correspondent NEW DELHI Aug. 5. After having successfully challenged neem and basmati patents, the Delhi-based Research Foundation for Science, Technology and Ecology (RFSTE) has now proposed to challenge the patent recently granted to Monsanto for a new wheat variety. Addressing a press conference, the Director of RFSTE, Vandana Shiva, said the patent would be challenged on the ground that there was nothing novel about the variety as it had been developed by cross breeding an Indian variety that had been bred, conserved and grown by farmers here over centuries. The patent had been obtained by Monsanto from the European Patent Office on the ground that the flour produced from the new variety had a low level of elasticity. But this trait had been derived from the native Indian variety. Several international NGOs, including Greenpeace, had agreed to support the move to challenge the patent, she said. The grant of patent to Monsanto, she said, was harmful to Indian interests as there was a growing international demand for products such as semi-sweet biscuits, non-fermented crackers, wafers, and other food items made from flour which had low elasticity. At present, no wheat variety was available commercially in the developed world which had this trait and consequently the manufacturers had to use chemicals. This was posing a problem as there was growing consumer pressure for products that were not chemically treated. With Monsanto getting the patent, the possibility for India to tap the potential market for low elastic wheat has been blocked. Interestingly, even as Ms. Shiva was holding her press conference, a group of employees of a public relations agency representing Monsanto stood outside the venue distributing a press release giving the company's response to the controversy. Pointing out that what had been granted was only a process and not a product patent, the release said there was no restriction on Indian farmers and scientists to use the traditional Indian variety for future research. Indian farmers would even be able to plant the newly developed variety freely. Later, speaking to The Hindu, Ranjana Smetacek, Director, Public Affairs of Monsanto, said that the European patent laws were very strict and the fact that the variety has been granted patent meant that it was worthy of being patented. She also said that the patent application was filed as early as in 1991 and it has granted only now. SMS using the Yahoo! Messenger;Download latest version. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20030807/a6a8d958/attachment.html From shuddha at sarai.net Fri Aug 8 18:41:14 2003 From: shuddha at sarai.net (Shuddhabrata Sengupta) Date: Fri, 8 Aug 2003 18:41:14 +0530 Subject: [Commons-Law] Call for Contributions to Sarai Reader 04 : Crisis/Media Message-ID: <03080818411403.01678@sweety.sarai.kit> Call for Contributions to Sarai Reader 04 : Crisis/Media (apologies for cross posting to subscribers of Sarai Reader List, Nettime, FibreCulture, BytesforAll & Commons-Law) I. Introducing the Sarai Reader Sarai, (www.sarai.net) an interdisciplinary research and practice programme on the city and the media, at the Centre for the Study of Developing Societies invites contributions (texts and images) to Sarai Reader 04 : Crisis/Media We also invite proposals to initiate and moderate discussions on the themes of the Sarai Reader 04 on the Reader List (http://mail.sarai.net/mailman/listinfo/reader-list) with a view to the moderator(s) editing the transcripts of these discussions for publication in the Sarai Reader 04. For an outline of the themes and concerns of Sarai Reader 04, see concept outline below. To know about the format of the articles that we invite, see 'Guidelines for Submissions' below. The Sarai Reader is an annual publication produced by Sarai/CSDS(Delhi). The contents of the Sarai Readers are available for free download from the Sarai website (see urls below) Previous Readers have included : 'The Public Domain' : Sarai Reader 01, 2001 (http://www.sarai.net/journal/reader1.html) 'The Cities of Everyday Life' : Sarai Reader 02, 2002, (http://www.sarai.net/journal/reader2.html ). And 'Shaping Technologies' : Sarai Reader 03, 2003 (http://www.sarai.net/journal/reader3.html) The Sarai Reader series aims at bringing together original, thoughtful, critical, reflective, well researched and provocative texts and essays by theorists, practitioners and activists, grouped under a core theme that expresses the interests of the Sarai in issues that relate media, information and society in the contemporary world. The Sarai Readers have a wide international readership. Sarai Reader 04 will be partly based on the presentations made at a workshop jointly organized by Sarai - CSDS and the Waag Society - "Crisis/Media : The Uncertain States of Reportage" . The workshop was held at Sarai-CSDS, Delhi in March 2003. For more details of the contents of this workshop, see http://www.sarai.net/events/crisis_media/crisis_media.htm Editorial Collective for Sarai Reader 04 : Ravi Vasudevan, Ravi Sundaram, Jeebesh Bagchi, Monica Narula & Shuddhabrata Sengupta (Sarai, Delhi) and Geert Lovink (Media Theorist & Internet Critic, Brisbane) II. Crisis/Media : Concepts & Themes From the very beginning of this century we have hurtled on as if from crisis to crisis. As if all the ghosts of the 19th and the 20th centuries, decades of war, colonial plunder, totalitarian repression and the hardening of secterian animosity had suddenly decided to come home to roost in a frenzied attempt at revisiting on the present all the accumulated tragedies of the past that we had thought we had left behind us as we gingerly made our way into our times. The images of planes crashing into skyscrapers, of entire cities being bombed into submission from the air, of occupying armies and fleeing civilians, of suicide bombers, ethnic cleansing and riot police assaulting unarmed demonstrators have branded themselves on to our consciousness with mounting frequency. These are the substance of the meditations of all our mornings, as we pick up the day's newspaper, switch on the radio in the kitchen, or the television in the living room, or log on to the internet, We have witnessed flash floods, epidemics, economic collapse, mass migrations and an intensification of the regimes of surveillance and control on a near global scale. Our newspapers, our television sets, our radios, our websites and our minds have become prisoners of war, and there seems to be no sign of a ceasefire in sight, at least as of now. The world we live in has also witnessed an enormous increase in the scale and complexity of communicative possibilities. An explosion of the means of delivering news, comment and images at rapid speed over diverse media has meant dispersal as well as amplification of the dynamics of any event or process, anywhere in the world. Satellite communications, a new telecom revolution, cheap electronic devices, computers and the internet ensure that no moment goes un reported. There is no moment that is not potentially global anymore. These are times for sober reflection, and that, precisely, is what we often find missing, as we open the newspaper, listen to the radio, or television. Yet, a variety of different, dissident, passionate and sane voices are also making themselves heard, through combinations of new and old media, as never before. The 'Paid For' news of the mainstream media is often exposed for what it is, even before it appears, by an increasingly vigilant network of independent local-global media initiatives. The numbers that turn out on the streets of the world's major capitals to protest against war seem to suggest that despite huge propaganda efforts, 'the spin' isn't working, at least not all of the time. We live, as the Chinese curse has it, in 'interesting times'. This accumulation of situations of crisis in the first three years of our century, and their rapid, almost real time dissemination in the media, have no doubt precipitated new opportunities for communicative action and global reflection, just as they have signaled an onset of a severe crisis within the media - a crisis of over-stimulation and under-statement, of exaggeration and exhaustion, of censorship and spin-doctoring, of fear and favour. More than at any other time before, the power and reach of the media, the potential of the usage of technologies of information and communication for control or for freedom, and the several intertwined professional, cognitive and ethical dilemmas that media practitioners face on a daily basis. All these require us to pause and take stock of the fact that the crises reported in the media have a bearing on the crisis of reporting in the media - That the media and the crisis that media require to be themselves today can no longer be seen as distinct categories, hence - CRISIS/MEDIA. We are interested in recognizing the fact that media today are located precisely along the intersections and fault lines that connect and divide representations (media events and processes) and structural problems. The Reader aims to excavate the relationships between these structures and the representations that accompany them. Crisis Media respond as much to wars and ongoing ethnic conflicts as they do to environmental crises or the AIDS epidemic and the SARS panic. Given this situation, how can Crisis/Media go beyond their historically framed task of 'correcting' mainstream opinions and actually experiment with other narratives? How can the global rise of mobile devices be utilized to 'receive, transmit and broadcast' peoples' stories as they occur, and by doing so, break the separation between reporters and the reported? Further, is it possible for us to begin to debate and problematize the whole notion of 'representation' itself, positing more immediate forms of testimony that resist mediatization? These are open questions, with no satisfactory and coherent answers, but Sarai Reader 04 would like to take them on, so as to map new territories of thought about media practice. A Preliminary List of Themes (these are not chapter or section headings, but point to areas of interest) could include : The Political Economy of Contemporary Media Forms Media Wars and Media in times of War : Weapons of Mass Distraction? Taking Sides and Speaking Truth : The Reportage of Ethnic Conflict and Civil Unrest Surveillance, Intelligence, Reportage : The Journalist and the Informer Brand Disloyalty : Critiques and Analyses of Immaterial Capital in the Information Age Aliens and Others : Media and Migration Reporting the Crises of Everyday Life Re imagining Tactical Media Evaluating Independent Media Strategies in the time of Globalization Mobile Maverick Media : the Technology and Politics of Dispersed and Mobile Media Forms Viral Media Communicable Diseases : Epidemics as Information The Body as Data Crises of Representation : Ethics, Epistemics, Aesthetics The Space for Free Speech Sarai Reader 04 - Crisis/Media, seeks to engage with this situation by inviting a series of reflections by media practitioners (journalists, independent media activists, filmmakers,photographers, artists, commentators and editors) and thinkers, writers, scholars, activists and critics. We are looking for incisive analysis, as well as passionate writing, for scholarly and theoretical rigour as well as for critical and imaginative depth. We invite essays, reportage, diaries and memoirs, entries from weblogs, edited compilations of online discussions, photo essays, image-text collages and interpretations of found visual material. We are interested in testimonies from all theatres of global conflict - be they New York, London, Baghdad or Kabul, in reports from continuing crisis situations - in Kinshasa, Ahmedabad, Ramallah, and in essays and reflections that address the world from Delhi, Belgrade, Karachi, Beijing, Buenos Aires and Tehran. We are interested in anything from anywhere at all that makes for intelligent, provocative and critical encounters with the world we all live in. Contributors can also consider the structural, technological, rhetorical and aesthetic dimensions of understanding, interpreting and expressing aspects of what they see as situations of crisis. They can reflect on ecological crises, crisis within social institutions and the many unreported and unexamined crises of everyday life that be-devil the contemporary moment. Hate speech and unreflective testimonies of victim-hood are however not welcome. The Sarai Reader 4, like the previous Sarai Readers, will be international in scope and content, while retaining a special emphasis on reflection about and from areas that normally lie outside the domain of mainstream discourses. We are particularly interested in cutting edge writing and contributions from South Asia, South and Central America, South East Asia, China, Tibet and Taiwan, Korea, Singapore, Iran, Iraq, Turkey and Australia. This is not an expression of a 'regional' or 'third world' bias, rather it is an affirmation of the fact that some of the most exciting emergent voices are located in these regions. We of course welcome, innovative and critical contributions from Europe, North America and Japan. We are especially keen to shape the Reader in response to events such as the Next Five Minutes 4 Conference, and hope that some of the ideas that get generated in such events can find their way into the debates that the Reader hopes to embody. If you feel these issues and questions are of interest to you. If your practice, thought, curiosities, research or creative activity has impelled you to think about some of these issues, we invite you to contribute to Sarai Reader 04 : Crisis/Media. III. Guidelines for Submissions Word Limit : 1500 - 4000 words 1.Submissions may be scholarly, journalistic, or literary - or a mix of these, in the form of essays, papers, interviews, online discussions ordiary entries. All submission, unless specifically solicited, must be in English only. 2.Submissions must be sent by email in as text, or as rtf, or as word document or star office/open office attatchments. Articles may be accompanied by black and white photographs or drawings submitted in the tif format. 3.We urge all writers, to follow the Chicago Manual of Style, (CMS) in terms of footnotes, annotations and references. For more details about the CMS and an updated list of Frequently Asked Questions, see http://www.press.uchicago.edu/Misc/Chicago/cmosfaq/cmosfaq.html For a 'Quick Reference Guide to the Chicago Manual of Style' - especially relevant for citation style, see - http://www.library.wwu.edu/ref/Refhome/chicago.html 4.All contributions should be accompanied by a three/four line text introducing the author. 5.All submissions will be read by the editorial collective of the Sarai Reader 04 before the final selection is made. The editorial collective reserves the right not to publish any material sent to it for publication in the Sarai Reader on stylistic or editorial grounds. All contributors will be informed of the final decisions of the editorial collective vis a vis their contribution. 6.Copyright for all accepted contributions will remain with the authors, but Sarai reserves indefinitely the right to place any of the material accepted for publication on the public domain in print or electronic forms, and on the internet. 7.Accepted submissions will not be paid for, but authors are guaranteed a wide international readership. The Reader will be published in print, distributed in India and internationally, and will also be uploaded in a pdf form on to the Sarai website. All contributors whose work has been accepted for publication will receive two copies of the Reader. IV. Where and When to send your Contributions Last date for submission - December 1st 2003. (but please write as soon as possible to the editorial collective with a brief outline/abstract, not more than one page, of what you want to write about - this helps in designing the content of the reader). We expect to have the reader published by mid February 2003. Please send in your outlines and abstracts, and images/graphic material to - 1. (for articles) to Shuddhabrata Sengupta, Co Ordinator, Sarai Reader 04 Editorial Collective (shuddha at sarai.net) 2. (for proposals to moderate online discussions on the Reader List) to Monica Narula, List Administrator, the Reader List (monica at sarai.net) 3.(for images and/or graphic material) to Monica Narula, Co Ordinator, Media Lab (monica at sarai.net) From radica at hotmail.com Sat Aug 9 09:14:08 2003 From: radica at hotmail.com (Radhika Kolluru) Date: Sat, 09 Aug 2003 09:14:08 +0530 Subject: [Commons-Law] change of email address Message-ID: dear moderator, please change my email address to radhikakolluru at yahoo.com on the group list. regards, radhika sorry for sending this to evryone on the list - i dont have the moderator's email.... _________________________________________________________________ Attention NRIs! Send money home in a jiffy. http://server1.msn.co.in/msnleads/citibankrca/citibankrca2.asp?type=txt Find out how here. From jaynakothari at hotmail.com Mon Aug 11 16:16:41 2003 From: jaynakothari at hotmail.com (jayna kothari) Date: Mon, 11 Aug 2003 16:16:41 +0530 Subject: [Commons-Law] Fwd: Govt, trade bodies discuss Patent Act amendments Message-ID: Govt, trade bodies discuss Patent Act amendments > >TIMES NEWS NETWORK[ WEDNESDAY, AUGUST 06, 2003 02:07:33 AM ] >NEW DELHI: The government has kicked off the process for the third >amendment >to the Patents Act 1970, which would mark the introduction of the >TRIPS-mandated product patents regime in the country for food, drugs and >pharmaceuticals and chemicals. The amendment would also throw open the >possibility of introducing provisions that cater to domestic constituency, >even as the country's obligation of making the legislation TRIPS-compliant >before the year '05 is being fulfilled. > >Beginning the consultation process for the third amendment, the department >of industrial policy and promotion (DIPP) today organised a one-day session >with Assocham, CII and Ficci and a cross-section of various IPR-related >interest groups and stakeholders. Inaugurating the session, commerce and >industry minister Arun Jaitley said the amendment would be fully balanced >with the concerns of national and public interest, especially those >relating >to public health in India. > >With the process being set in motion, issues on which the stakeholders are >at loggerheads even after the first and second amendments of '99 and '02 - >grounds for issuance of compulsory licences, `parallel imports' and >`exhaustion of patent rights', `technology transfer', `patentable >inventions >', `abuse of patents' and sundry definitions - are being placed afresh for >debate. ``This is the next milestone in India's IPR law. We propose to have >extensive consultations with all stakeholders before finalising the >provisos,'' the official said. The government is planning to hold 15-20 >interactive sessions in different cities in the country in the next six to >eight weeks. > >Referring to the debate a decade ago which was marked by apprehensions that >medicines would have to be paid for in dollars due to signing of TRIPS >agreement by India, Mr Jaitley said: ``Let alone having to pay in dollars, >India is getting ready to supply quality drugs to the rest of the world, at >prices equivalent in rupees. This is a significant change that has taken >place in the last one decade.'' > >With our large knowledge base and propensity for research, why should we be >on the backfoot as far as IPR protection is concerned?, asked the minister. >The first amendment to the Patents Act had extended the facility of product >patents to agrochemicals and pharmaceuticals. > >The second amendment in '02 incorporated national emergency, circumstances >of extreme urgency and for public non-commercial use of patented product as >grounds for invoking compulsory licence. It also explained, although not >to >the satisfaction of all, what would and would not be patentable. Now, there >are demands for review of the grounds for compulsory licensing, as the >second amendment allegedly did not make full use of the flexibility >provided >by Doha Declaration on TRIPS and public health. Some feel that abuse of >patent rights by the patentee -- reckoned on the basis of high price or >lack >of insufficient availability - can be a ground for issuing CL and the >patentee should not be required to be convinced of the abuse by the seeker >of compulsory licence. Also, since the patentee is deemed to have exhausted >his right when there is case for parallel import from a secondary source, >the question of payment of royalty to the patentee should not arise. The >patentee should be mandated to transfer the technology to the CL holder, on >payment of incremental royalty. In addition to national emergency, a >``health emergency'' should also be reason for invoking CL. Health >emergency >should be distinctly defined and the power to declare such emergency should >vest with the health ministry. Declaring a national emergency is process >that requires legislative and presidential assents and there should be >broader ground for invoking CL and under easier practical terms. > >There should also be differential appeals for economic and legal issues. >While the proposed appellate tribunal, as brought in with the second >amendment, can settle disputes when the patent controller's decisions are >questioned, an administrative committee should arbitrate disputes of >economic purport. While the first amendment to the Act in '98 provided for >product patents in pharmaceuticals and agro-chemicals, there is demand that >product patents be given for food and fine chemicals as well. > >The government is taking note of these proposals from the domestic lobbies >as well as grouse of some multinational corporations, mainly pharma MNCs, >that India's patent law is weak and not completely TRIPS-compliant, while >attempting the Third Amendment. > > >http://economictimes.indiatimes.com/cms.dll/xml/uncomp/articleshow?msid=1155 >32 > > > _________________________________________________________________ Are you Unmarried? http://www.bharatmatrimony.com/cgi-bin/bmclicks1.cgi?4d Register in India's No 1 Matrimony. From jeebesh at sarai.net Mon Aug 11 12:48:52 2003 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Mon, 11 Aug 2003 12:48:52 +0530 Subject: [Commons-Law] Documentary film Censorship for Festivals. Message-ID: <200308111248.52128.jeebesh@sarai.net> dear all, Documentary films that are shown in film festivals till date did not need a Censor certificate. It was a norm in support of free expression and peer review. But recently film festivals have started asking for censor certificate from filmmakers. I am enclosing a campaign mail and some responses from the organiser of one such festival. What i find most intriguing is the evocation of LAW as an ultimate justification. It looks as if Law embodies the `just norm` and everything outside is dangerous. Since here the case is `free expression` this evocation has a tinge of religiosity to it.! best Jeebesh ---------- Forwarded Message ---------- Subject: PSBT's response & Campaign's Reply Date: Sat, 09 Aug 2003 01:37:18 +0530 From: Miff Campaign To: MIFF_CAMPAIGN at rediffmail.com Dear Friends, Please find below the response we have received from PSBT to our letter demanding the removal of the censorship clause at the UNESCO/PSBT Festival. We have drafted a reply to this letter and that too has been included in this mail immediately below the letter recived from PSBT. Please give us immediate feedback on this draft. Campaign's Email ID's: miff_campaign at rediffmail.com miff_camapaign at rediffmail.com PSBT has informed us that they have approached the Ministry of I&B for an exemption. However the issue of how they will react if permission is not granted has not been addressed. Our stand is that the responsibility of getting clearances, etc lies with the festival organisers to ensure that the film makers get the space to screen their work in the form that they had originally intended. Moreover, it is clear to us that this virus of demanding censor certificates is spreading fast and we need to resist all such attempts before they become strong enough to choke our voices. Festivals exist because of film makers and it is about time we asserted our right over this space. In Solidarity, Amar, Pankaj, Rahul, Saba, Sameera, Sanjay PSBT'S RESPONSE: From: Rajiv Mehrotra To: pankaj_butalia at vsnl.net Cc: Rosa Gonzalez Maria ; Amar Kanwar ; Sameera Jain ; Sanjay Kak Sent: Thursday, August 07, 2003 6:02 PM Subject: PSBT-UNESCO Fest Censorship Dear Mr. Butalia, Ms. Dewan et all -Thank you very much for your e-mail of a short while ago. -We fully endorse your campaign against censorship of entries at MIFF. In fact we were disappointed that the issue was not discussed with us earlier, despite our own efforts in support of the documentary film movement in India in partnership with more than a hundred independent film makers. These have included several of the signatories to your campaign. I trust their experience will vouchsafe for the independent creative space we seek to create for our film makers. We read about your efforts in the press. I was delighted to have had the opportunity of a conversation with one of the signatories Mr. Amar Kanwar only yesterday afternoon and to explore how we could join hands. -I should add that it is our position that there should be no censorship of reality films (documentary) at all in a liberal democracy and that in an era of globalised television it makes even less sense. In my statutory capacity as Chairperson of the Non Feature Film Jury of The National Film Awards this year it was our formal written recommendation that: The issue of pre censorship as a criterion for eligibility for a reality based film (i.e. Documentary) in an era of globalised television needs revisiting. If a documentary produced for and shown on television to millions of viewers does not require pre censorship it goes against the principles of a liberal democracy and freedom of creative expression for the same film to be wetted by a bureaucracy of the Government before it can be screened off air and considered for artistic recognition. -PSBT has written to the Ministry of Information & Broadcasting requesting exemption from the requirement of censor certification should some of the films we have invited not have these. We have provided them with a complete list of the selected films and are awaiting their response. Meanwhile we are ascertaining which of our selected films from India are uncensored. -I understand that according to the law all films publically screened in India must conform to the censor code. In the case of foreign films selected for film festivals the responsibility of ensuring that this is done is granted to the film festival preview committee by the Ministry of Information & Broadcasting in the interests of practicality and expediency. It is not in principle waived. -Unfortunately PSBT as an independent legally registered not for profit body in India - in scheduling films at our forthcoming festival - will have to be guided by Indian law e.g. the Cinematographic Act unless we are able to secure the exemptions in writing that we have allready sought, from The Ministry of Information & Broadcasting. -We will be happy to explore ways we could work together to further the agendas, I believe we share. Please do keep us informed and in the loop. PSBT in turns looks to your help, support and guiding hand. Good luck ! Warm personal greetings and regards to you all OUR RESPONSE TO PSBT: Dear Shri Mehrotra, Thank you for your response to our email regarding the contentious issue of making censor certificates a requirement for films invited to the forthcoming PSBT-UNESCO documentary festival. We appreciate the stand taken personally by you on the issue of censorship as Chairperson of the Non Feature Film Jury of the National film awards this year. However, the widest fraternity of documentary film-makers (almost 110 at last count) who constitute this campaign are quite clear that the time has come for us to go beyond expressing a desire to be free of the limitations posed by the growing censor culture. As you are aware there is already a nation-wide campaign by documentary film makers against censorship at MIFF2004. Should the Ministry of I&B fail to remove the requirement of a censor certificate from MIFF2004, film makers plan to collectively boycott MIFF2004 and launch a campaign with foreign film-makers who might be thinking of sending their films to MIFF, as also those who have sent films in the past, as well as with Jury Members past and present. We reiterate that it is the responsibility of festival organisers to get all the exemptions required and to respect the sentiments of film makers whose films are being celebrated. The recently concluded IVFest 2003 in Trivandrum, for example, did not ask for Censor Certificates for Indian films. You will also appreciate that the film-making community must be seen as acting consistently on this issue - opposing the MIFF requirement of a censor certificate must be matched by a consistent approach to all festivals. We therefore would request you to withdraw the requirement of a censor certificate, since we would otherwise have to take the UNESCO/PSBT festival within the ambit of our Campaign against Censorship at MIFF. In view of the fact that the UNESCO/PSBT festival is scheduled for later this month, we would request you to respond at the earliest, and definitely by Tuesday Aug 12, 2003 Lastly, your letter draws attention to the safe space PSBT has provided to documentary film makers. You will recall that many of us have collectively helped in setting the tone for the debate on public broadcasting out of which PSBT emerged. But this is neither the time or place to evaluate how that promise has been fulfilled. At a later date, film-makers could be engaged in a constructive - and transparent - discussion on how they feel the PSBT experiment has been faring. W e too extend our hand to you in cooperation. You will find this campaign a willing partner in building and safeguarding the space for independent documentary provided there is no compromise on certain basic principles of the film makers' right to unfettered creative expression Yours sincerely Amar Kanwar, Pankaj Butalia, Rahul Roy, Saba Dewan, Sameera Jain, Sanjay Kak on behalf of Campaign against Censorship at MIFF. - ------------------------------------------------------- -------------- next part -------------- A non-text attachment was scrubbed... Name: not available Type: application/defanged-204 Size: 10015 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20030811/05612373/attachment.bin From jeebesh at sarai.net Mon Aug 11 13:20:56 2003 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Mon, 11 Aug 2003 13:20:56 +0530 Subject: [Commons-Law] Campaign Against Censorship - legal option Message-ID: <200308111320.56418.jeebesh@sarai.net> dear All, Following from my last posting on `Campaign Against Censorship`, i am enclosing an edited version of the new digest. The legal option is creeping in and my fear is that, it may go that way. What do people in this feel about it.? Can anybody post a legal opinion to the list and to the campaign list. I would suggest caution to legal action!!(..) best Jeebesh ------------------------------------- Campaign Against Censorship against MIFF 2004 - Digest #6 From: MIFF CAMPAIGN Date: Mon, 11 Aug 2003 13:14:48 +0530 Taking on from Manjira Datta's suggestion of seeking a legal opinion, we feel that is a good idea. From our untutored reading of the Cinematograph Act, it appears that everything hinges on the interpretation of 'public'.The Act is vague on this and seems to equate 'public' with 'commercial'. Among other things, it could perhaps be validly argued that a film festival or a screening for invitees or a screening within non-commercial premises, such as an educational institution, is not a 'public' space. Of course, in the long run, one should lobby for scrapping of the Act itself. Anjali and Jayasnkar, Mumbai I feel we should identify a lawyer and start working on the legalities - cinematograph act, reality films, public screenings, Indian Law etc. Also the costs involved which we should all share. Maybe we should do this in two levels. One against censorship in festivals and another for a general case against censorship. This clause that the preview commitee ensures the foriegn films are censored in their > own country is to be looked at. I wonder if it is a good strategy to file individual cases by filmmakers against censorship in the festival, apart from a collective petition. Ramani, Chennai From jaynakothari at hotmail.com Tue Aug 12 10:22:04 2003 From: jaynakothari at hotmail.com (jayna kothari) Date: Tue, 12 Aug 2003 10:22:04 +0530 Subject: [Commons-Law] Campaign Against Censorship - legal option Message-ID: dear All, have been reading some of Jeebesh's postings on the new requirement for a censor certificate for screeneing of documentary films at film festivals by the I& B Ministry and it is indeed shocking. Upon reading some of the provisions of the Cinematograph Act, these are just some of my points for consideration.: 1. First of all, the Act requires any person who wishes to exhibit any film to obtain a certification from the Censor Authorities. This would therefore include all kinds of exhibition of films, as no distinction is made in what constitutes ' exhibition' or ' public exhibition' . Therefore, technically speaking, this section would then cover even the screening of films at film festivals even though it is to a select audience amd that it is non-commercial screening etc. However, looking at some of the other provisons of the Act, Sec. 9.(Cinematograph Act ) provides for the Power to exempt. It states: "The Central Government may, by order in writing exempt, subject to such conditions and restrictions, if any, as it may impose, the exhibition of any film or class of films from any of the provisions of this Part or of any rules made thereunder". Therefore, under this provision, a case may be made out by the community of documentary film makers, including the film festival organisers or a group such as the Campaign against censorship, that films screened at film festivals should be exempt from requiring certification from the government. To make this argument in order to claim exemption, the right to freedom of speech and expression under Article 19 can be used to state that the requirement of certification even for documentary films shown at film festivals would be un unreasonable restriction under Article 19. I strongly feel that if such an order is issued by the I&B Misintry that certification is required, then one option can be to make an application for exemption under Sec. 9. And if such exemption is not granted then the action needs to be challenged by filing a writ petition. 2, In addition to this, the Act also states in Sec, 4 (2) that no action can be taken by the Board without giving an opportunity to the Applicants of being heard. Therefore, it can be interpreted to mean that if documentary film makers were not required to get their films certified till now, then no such order can be made unilaterally without giving them a chance to be heard. these are just some of my immediate thoughts...would be interested in finding out what others think of these legal options, cheers Jayna >From: Jeebesh Bagchi >To: commons-law at sarai.net >Subject: [Commons-Law] Campaign Against Censorship - legal option >Date: Mon, 11 Aug 2003 13:20:56 +0530 > >dear All, > >Following from my last posting on `Campaign Against Censorship`, i am >enclosing an edited version of the new digest. The legal option is creeping >in and my fear is that, it may go that way. What do people in this feel >about >it.? Can anybody post a legal opinion to the list and to the campaign list. >I >would suggest caution to legal action!!(..) > >best >Jeebesh > >------------------------------------- >Campaign Against Censorship against MIFF 2004 - Digest #6 > > From: >MIFF CAMPAIGN > >Date: >Mon, 11 Aug 2003 13:14:48 +0530 > >Taking on from Manjira Datta's suggestion of seeking a legal opinion, we >feel >that is a good idea. From our untutored reading of the Cinematograph Act, >it >appears that everything hinges on the interpretation of 'public'.The Act is >vague on this and seems to equate 'public' with 'commercial'. Among other >things, it could perhaps be validly argued that a film festival or a >screening for invitees or a screening within non-commercial premises, such >as >an educational institution, is not a 'public' space. Of course, in >the long run, one should lobby for scrapping of the Act itself. > >Anjali and Jayasnkar, Mumbai > >I feel we should identify a lawyer and start working on the legalities - >cinematograph act, reality films, public screenings, Indian Law etc. Also >the >costs involved which we should all share. Maybe we should do this in two >levels. One against censorship in festivals and another for a general case >against censorship. This clause that the preview commitee ensures the >foriegn >films are censored in their > own country is to be looked at. I wonder if >it >is a good strategy to file individual cases by filmmakers against >censorship >in the festival, apart from a collective petition. > >Ramani, Chennai > > > >_______________________________________________ >commons-law mailing list >commons-law at mail.sarai.net >http://mail.sarai.net/cgi-bin/mailman/listinfo/commons-law _________________________________________________________________ Attention NRIs! Send money home in a jiffy. http://server1.msn.co.in/msnleads/citibankrca/citibankrca2.asp?type=txt Find out how here. From sunil at mahiti.org Thu Aug 14 18:53:37 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 14 Aug 2003 18:53:37 +0530 Subject: [Commons-Law] Court tells RIAA to take subpoenas somewhere else Message-ID: <1060867416.2742.283.camel@mahitilaptop.mahiti.net> Court tells RIAA to take subpoenas somewhere else By Ashlee Vance in Chicago Posted: 12/08/2003 at 17:21 GMT http://www.theregister.co.uk/content/6/32303.html The race is on between file-traders and the RIAA's lawyers to see who can do more damage to the music labels' bottom line. As of Friday, the RIAA (Recording Industry Association of America) legal team has captured a comfortable lead in this contest. A Massachusetts court has sided with two universities, ruling that the RIAA cannot run a centralized subpoena sweatshop from Washington D.C. and expect to attack all 50 states. The court has called on the RIAA to file subpoenas against file-traders in their respective jurisdictions. This ruling must sting the RIAA. The music label mob may well have to go back and re-file thousands of subpoenas - a costly, time-consuming process. "Today's ruling requires the recording industry to file subpoenas where it alleges that copyright infringement occurs, rather than blanketing the country from one court in D.C.," said Electronic Frontier Foundation (EFF) Staff Attorney Wendy Seltzer, in a statement. "The court ruling confirms that due process applies to Internet user privacy nationwide." MIT and Boston College had taken a stand against the RIAA, looking to protect their students' privacy and make sure proper legal process was being followed. This is a refreshing stance compared to other schools such as Loyola University Chicago that were all too eager to hand over their students' names. With more and more challenges popping up against them, the RIAA's lawyers are starting to look about as competent as the organization's hosting company. ® -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw From sunil at mahiti.org Fri Aug 15 14:34:36 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 15 Aug 2003 14:34:36 +0530 Subject: [Commons-Law] Q&A re: SCO vs. IBM by Lawrence Rosen General Counsel, Open Source Initiative Message-ID: <1060938275.1824.12.camel@mahitilaptop.mahiti.net> © Copyright 2003 Lawrence Rosen. Licensed under the Open Software License version 2.0 (available at www.rosenlaw.com/osl2.0.html ). Q&A re: SCO vs. IBM by Lawrence Rosen General Counsel, Open Source Initiative * The following questions and answers were prepared by the author at the request of the Open Source Development Lab (OSDL) as a result of intellectual property issues arising in the wake of SCO Group's lawsuit against IBM. This position paper is intended by the author to calm some of those uncertainties. Filed a few months ago, SCO's lawsuit against IBM has rankled the Linux community and disconcerted its users. Much of the worry is caused by press exaggeration. Not many lawsuits, and certainly not this one, deserve to be called the "trial of the century." SCO vs. IBM should not be over-rated. It is a contract dispute between two companies with deep pockets, both of whom are prepared to send their attorneys into battle to protect their reputations and their economic interests. SCO is seeking lots of money from IBM and IBM refuses to pay. SCO obviously wants to force IBM's hand, and that accounts for at least some of the tactical moves being undertaken by SCO and its allies to stir up fear among Linux customers. IBM has responded with a countersuit, and now Red Hat has entered the fray to defend Linux and the right of the open source community to distribute that operating system to users worldwide. The entire situation must seem very murky to those of you not following it intently. These questions and answers may help you understand what's happening. Q: Is this a lawsuit against Linux? A: No. This is a lawsuit by SCO against IBM, with counterclaims by IBM against SCO. SCO claims money damages for breach of confidentiality and the disclosure of its Unix-related trade secret information to the public. IBM and SCO had an agreement to work together on IBM's AIX operating system. SCO alleges that, when IBM changed its business strategy and refocused its efforts on Linux, IBM disclosed SCO's confidential technical information. That confidential information, they assert, ultimately found its way into Linux. IBM denies all of SCO's material allegations. Recently IBM filed a countersuit against SCO alleging, among other things, that SCO is infringing some IBM patents, a move on IBM's part to put its strategic patent portfolio to defensive use. As this Q&A paper is written, the SCO vs. IBM litigation is still in its early stages. If this were a typical federal civil lawsuit, it would probably continue for 12-18 months and then settle before trial. But this case is such a public event that it may linger for a while before resolving itself ­ at the end ­ with either a defense judgment or with money changing hands. This lawsuit, with its claims and counter-claims, is at heart a legal dispute between those two companies over money. The Linux operating system itself, and its contributors, distributors and users, are not parties to this litigation and cannot be directly affected by it. But the indirect effects are being felt. The real problem for Linux and open source is not the lawsuit itself, but that the SCO vs. IBM case is creating confusion and doubt among Linux users. Q: How is Linux involved? A: SCO claims that IBM took SCO's confidential information about Unix and the AIX operating system and improperly contributed it to Linux. The Linux operating system, they assert, was infected with SCO's confidential information and, because Linux is open source, that confidential information has been disclosed to the world. Now that Linux is replacing Unix in the operating system marketplace, SCO has lost business. It claims over $1 billion in damages. Just because two parties enter into a confidentiality agreement and exchange so-called "confidential information" doesn't mean that there really are trade secrets involved. Sometimes the secrets are already out. In most jurisdictions, confidential information loses its trade secret status when it becomes a matter of public knowledge through no fault of the recipient, or was known to the recipient before it was disclosed, or was independently developed by the recipient without the use of the discloser's confidential information. Unix operating systems have been in widespread use for many years. How Unix works is not a trade secret -- it hasn't been a trade secret since long before SCO and IBM started to work together on AIX. In other words, there may have been some trade secrets exchanged between SCO and IBM, but there weren't that many secrets left for them to exchange that could relate to Unix and Linux functionality. Furthermore, SCO needs to prove that those trade secrets were actually copied into Linux. Linus Torvalds, working alone in his home in the early days on his Linux program, didn't have access to SCO's trade secrets. Nor did thousands of other programmers around the world who have made contributions to Linux software. Their work is original work based on commonly understood operating system principles and they didn't need to know SCO's trade secrets to write that software. But let's assume the worst. Suppose the jury, in its wisdom after hearing all the evidence, concludes that there are a few of SCO's trade secrets that ended up in Linux. This worst-case-scenario exercise will help us set the outer limits of risk to Linux and to its users. Not surprisingly, given my work with Linux and the open source community, I conclude below that the risk is very small indeed. But don't trust my judgment. I'm not trying to give you legal advice. Ask your own attorney to read these Qs and As and form your own judgment based on his or her advice. Q: Does SCO have a copyright on Linux? A: Perhaps. SCO can register a copyright in any software it wrote or modified or that it distributed as a collective work. So can Linus Torvalds, and Red Hat, and SuSE, and Debian, and so can anyone (including IBM) who contributed more than a trivial bit of code to Linux. Any of those people or organizations in the U.S. can send $30, and a form, and 50 pages of their source code to the Library of Congress and get a certificate of copyright registration suitable for framing. The procedures are described at www.loc.gov/copyright. There are similar procedures in other countries. Registering a copyright is only a ticket to get to court. Registration itself isn't proof of anything important. Of course, registration doesn't give SCO ownership rights to the original versions of the software it modified or re-distributed. Nor does SCO have any copyright ownership in software that is independently written by others, even if that software is based on ideas learned from SCO. Because copyright law only imperfectly applies to software, SCO has an even bigger hurdle to jump before it can assert its copyrights. Here's where the copyright aspects of this case will be a thrill for those of us who enjoy puzzles or metaphysics. The parties will, through expert witnesses, help the court undertake a somewhat mysterious "abstraction, filtration, comparison" test to remove the functional elements of SCO's copyrighted software and isolate the expressive elements. The law says that only the expressive elements of the software deserve copyright protection. And the "doctrine of merger" also applies, which denies copyright protection to expression necessarily incidental to the idea being expressed. This legal analysis will keep the parties busy in court for many months. Ultimately, after these tests and the merger doctrine are applied to SCO's software, far less will be legally copyrightable by SCO than the code they submitted to the Library of Congress along with their $30 check. And finally, SCO has to prove actual copying or modification of its copyrightable code. Linux's history is not secret. Linux source code is published for all to see, with copyright notices throughout. SCO can find who wrote Linux and ask them, under oath, to describe how they wrote their code. Many Linux programmers are already asserting publicly that they implemented their own software without input from SCO and that SCO's claims are exaggerated. It could take years for SCO to complete the depositions of programmers around the world who contributed to Linux and, when that's all done, SCO will probably not have much copyrightable code left to assert against Linux. Suppose though, after leaping those hurdles, SCO manages to convince the court that IBM improperly copied or modified some portion of SCO's trade secret copyrightable work and contributed it to be part of Linux. The Linux development community is prepared to address this risk head-on, if necessary, by re-implementing any portion of Linux that was written by SCO. SCO has refused so far to reveal which portions of Linux are derived from their software. If they did, the open source community would immediately start to design around those portions. I know Linus Torvalds, and I know a fair number of open source programmers who work on Linux worldwide. They are the best operating system engineers available anywhere. It is a safe bet that, whatever infringing software is ultimately found in Linux -- if any at all ­ it will be replaced within weeks by non-infringing versions. That's one of the strengths of open source software development. Like the automatic re-routing that makes the Internet such a robust network, the open source community can quickly route around software that doesn't belong because of third-party copyright claims. Q: Can SCO demand license fees to use Linux? A:Sure. But just because someone demands money doesn't mean you should pay them. SCO has sued only IBM, remember, not you, and is demanding at least $1 billion in economic damages. IBM didn't reach for its checkbook yet. Why should you? SCO already licensed Linux to you royalty-free when it distributed Linux under the GPL license. Although SCO purported to suspend its Linux distribution after the commencement of this lawsuit, SCO continued to make Linux code available for download from its website. By distributing Linux products under the GPL, SCO agreed, among other things, not to assert certain proprietary rights ­ such as the rights to collect license fees ­ over any source code distributed under the terms of the GPL. Some people complain about the absence of indemnity in open source licenses, including the GPL license used currently for Linux. The economic equation is simple: Because the software is given away for free, no open source licensor can afford to offer indemnity. I don't believe indemnity matters anyway in this case, because of the way SCO has structured its complaint. Assume, for example, that SCO wins its case against IBM and IBM pays $1 billion in damages to compensate for the use of SCO's confidential code in Linux. (Again, this is a worst case scenario helpful only to assess risk to Linux users.) How then could SCO turn to Linux users and ask for the same damages all over again. That double-dipping isn't fair in law or in equity. Courts usually don't allow that. Simply by being an interested and aggressive defendant with deep pockets, IBM is now effectively shielding Linux users from damages, even without an indemnity provision in the GPL. Q: What is my risk if I continue to use Linux? A:Assume the very worst: Assume SCO wins its case against IBM and IBM writes a big check for damages. Assume SCO proves that some portion of Linux is a copy or derivative work of its trade secret software. Assume SCO gets an injunction to prevent anyone from using any version of Linux containing infringing code. As I previously assured you, long before that happens there will be a new open source version of Linux omitting any SCO code. Non-infringing Linux will be readily available for everyone's free use because the open source community is entirely committed to Linux. Whatever IBM may be forced to pay will presumably compensate SCO for its damages. It would be astonishing if, after IBM p aid SCO some huge damage award, a court would let SCO go after users as well for the same damages. For these reasons, the SCO vs. IBM lawsuit is not likely to have any real impact on Linux users. It is a battle of big companies that will be resolved in due course by the court, perhaps by the payment of money. In the meantime, and forever, Linux is available for free. Q: What is the effect of the Red Hat lawsuit against SCO? A: Some of the major players in the open source community ­ in particular Red Hat ­ have finally had enough of SCO's efforts to disrupt the progress of Linux and to spread fear among its users. Red Hat has now sued SCO for unfair business practices. The stakes for SCO are now much higher. It is one thing to start a contractual dispute with IBM and to seek economic damages appropriate for the injury supposedly suffered. It is yet another thing to disparage the reputation of an operating system that was independently designed and developed by open source contributors worldwide, and to instill unreasonable fear in Linux customers about the possible consequences of using that operating system. The Red Hat lawsuit is one of a number of steps being taken by leaders of the open source community to respond to SCO's tactics against Linux. Meanwhile, development of Linux continues unaffected. You may continue to use Linux without fear. * Attribution Notice: Lawrence Rosen is founding partner of Rosenlaw & Einschlag, a technology law firm, with offices in Los Altos Hills and Ukiah, California (www.rosenlaw.com). He serves also as general counsel and secretary of Open Source Initiative (www.opensource.org), which reviews and approves open source licenses and educates the public about open source issues. While this paper is written by an attorney, you are not my client and I am not intending this to be legal advice. You are encouraged to show this article to your attorney and obtain his or her independent advice about how to proceed. This paper was written at the request of the Open Source Development Lab (OSDL). The content of this paper and the opinions expressed herein are solely those of the author and do not necessarily represent those of OSDL or its members -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw From sunil at mahiti.org Fri Aug 15 14:37:59 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 15 Aug 2003 14:37:59 +0530 Subject: [Commons-Law] SCO to argue General Public Licence invalid Message-ID: <1060938479.1823.15.camel@mahitilaptop.mahiti.net> http://www.theinquirer.net/?article=11031 The wacky wacky world of corporate lawyers ByINQUIRER staff: Thursday 14 August 2003, 08:56 SCO WILL attempt to win its $3 billion case against IBM by arguing that the General Public Licence (GPL) is invalid. That's what a pleader at legal practice Boies Schiller and Flexner is telling the Wall Street Journal today. The GPL licence allows software and work derived from it to be copied by anyone at no charge. But according to today's WSJ, quoting lawyer Mark Heise, the GPL is pre-empted by US federal copyright law. How does that work then? According to Heise, federal law only lets people make a single backup copy of software, and that makes the GPL void under US law. Seems like a bloody flimsy argument to us, but in the topsy-turvy Alice in Wonderland world of law, who knows what characters might suddenly turn into wild cards? In effect, Heise's argument seems to be that you have to have copyright on software even if you insist that your software is not copyrighted. D'oh. Of course GPL software is copyright and only public domain works, apparently, lack copyright protection, maybe. The GPL specifically makes use of copyright holders' authority to grant the right to copy authorisations. Effectively, GPL does not remove the copyright of the original author, it instead allows the work to be freely distributed as long as the distributions and works derived from them are also made available under the licence. If SCO's pleaders win this one, then surely it is guilty of massive copyright infringement too? And if they do, then surely it must apply to BSD and Apache style licences as well? Has the whole world gone stark staring bonkers? [Yes. Ed.] µ -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw From radica at hotmail.com Sat Aug 16 09:10:38 2003 From: radica at hotmail.com (Radhika Kolluru) Date: Sat, 16 Aug 2003 09:10:38 +0530 Subject: [Commons-Law] change of email address Message-ID: dear moderator, please change my email address to radhikakolluru at lycos.co.uk for the purposes of this list. and unsubscribe me from my hotmail address.. regards, radhika _________________________________________________________________ Formula 1 fan? This is for you! http://server1.msn.co.in/sp03/formula2003/photogallery/gallery/gal3.asp Best pics of the year. From radica at hotmail.com Sat Aug 16 09:10:38 2003 From: radica at hotmail.com (Radhika Kolluru) Date: Sat, 16 Aug 2003 09:10:38 +0530 Subject: [Commons-Law] change of email address Message-ID: dear moderator, please change my email address to radhikakolluru at lycos.co.uk for the purposes of this list. and unsubscribe me from my hotmail address.. regards, radhika _________________________________________________________________ Formula 1 fan? This is for you! http://server1.msn.co.in/sp03/formula2003/photogallery/gallery/gal3.asp Best pics of the year. From esparun at bgl.vsnl.net.in Tue Aug 19 02:12:36 2003 From: esparun at bgl.vsnl.net.in (esparun) Date: Mon, 18 Aug 2003 22:42:36 +0200 Subject: [Commons-Law] [Fwd: Fw: sc case] Message-ID: <3F413A3C.6080904@bgl.vsnl.net.in> Dear Friends, Can you please tell me where I can find the details of this case originally filed in Karnataka HC and of Lt. Gopinath? Arun -------- Original-Nachricht -------- Betreff: Fw: sc case Datum: Sun, 17 Aug 2003 23:34:44 +0530 Von: Dr Dabade An: esparun at bgl.vsnl.net.in, shyamanarang at hotmail.com DEAR ALL, URGENT HELP NEEDED. CAN YOU PL FIND OUT THE DETAILS FOR THIS LETTER. Best wishes and hopingto hear from you soon. Gopal Dr Gopal Dabade 57 'Sony' Tejaswinagar Dharwad-580002 Karnataka India +91 836 2461554 drdabade at sancharnet.in ----- Original Message ----- From: sahajbrc, renu and chinu To: Dr Dabade Cc: amol ; Yogesh Sent: Sunday, August 17, 2003 9:01 AM Subject: sc case > Gopal/Anant, > > This is prompted by a phone call of Anurag Bhargav of JSS Bilaspur. > > There is this case in SC originally filed in the Karnataka HC by one Lt > Gopinath and others regarding excessive pricing of drugs and so many drugs > being out of price control. The SC has given 4 weeks from Aug 2 to the GOI > to reply why so many drugs are out of price control. In response to the > court's orders the GOI has filed something called the natioanl essential > drug list (and reproduced in IDMA Bulletin). > > Firstly Gopal, if you can find out about the case from Bangalore more > details of the petition, current status, etc. Secondly if we can write to > the SC -- I do not know how what is the correct legal procedure -- that if > we need to be heard too. I know we are waking up a bit late. But better late > than never. We can write to the court/intervene formally as separate > organisations and/or jointly. Even Dr PK Sarkar is willing to put his name > (normally he cannot becasue he is govt servant etc.) > > Please let me have your reactions. > > Best, > > Chinu > -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20030818/19c2edbd/attachment.html From soenke.zehle at web.de Thu Aug 21 18:40:03 2003 From: soenke.zehle at web.de (Soenke Zehle) Date: Thu, 21 Aug 2003 15:10:03 +0200 Subject: [Commons-Law] Communication Rights Form is Creating Pre-WSIS Focus Groups Message-ID: <003501c367e5$88d70330$fe78a8c0@szbqkbao9nnomh> [fwd CRIS email] Anyone interested? I am not sure yet, but think that commons/opens source issues are more likely to receive proper attention in 'media divcersity and communication for development' (see list below) - could be, as CRIS argues, a good vehicle to get not-quite-mainstream-yet-OSS positions into an international NGO campaign. best, sz Dear All The majority of you have been in touch asking how to participate and support the CRIS campaign. When I mentioned the idea of developing Thematic Working Groups around 4 key areas most of you showed a high level of interest. So first of all, I have to apologise for the long delay between your enquiries and this response. For some of you I am aware that it has been particularly long. However we are now ready to start the ball rolling. We have decided to hold back on making the attached anouncement public as we felt that it was necessary for small groups to start working together first. At a later date we hope to enlarge these groups once they are functionning comfortably. If you are still interested in getting involved with the CRIS campaign at that level, then please do let me know which group you would like to part-take in and advise me of the email address you wish to use for this. Attached you will find a "public" announcement and the Terms of References for the groups, so you know what it is that we are hoping to develop over the next few months. As for the hours committed, this is more of an average and we will not be counting. What we aim for is to welcome people that are happy to spend some time sharing their already existing work and experiences to take us forward. A very big thank you to Kirstin Sharmas for all her help. Bestest Myriam Horngren CRIS Advocacy and Network Coordinator c/o WACC 357 Kennington Lane, London SE11 5QY Web: http://www.crisinfo.org Tel: 44 (0) 20 7582 9139 ext 226 <> <> Terms of Reference The CRIS Campaign Communication Rights in the Information Society (CRIS) is a campaign to ensure that communication rights are central to the information society. The campaign is sponsored and supported by the Platform for Communication Rights (http://www.crisinfo.org/live/index.php?section=5&subsection=0&doc=2 ), a group of Non-Government Organizations involved in media and communication around the world. CRIS definitions and aims "The information society" denotes the pervasive role of all traditional and new media technologies in organizing global peoples and cultures. The focus of the campaign is based around 4 priority areas and through research and advocacy we hope to enrich and promote a discourse which situate "communication rights" within the wider movement for Civil Society. CRIS themes Inspired by the CRIS charter (see attached), the CRIS themes are: 1) Information Security: Reclaiming civil and political rights in the information society 2) Intellectual Property Rights on Communication and Culture: Reclaiming the use of knowledge and the public domain 3) Media Diversity and Communication for Development: Creating spaces for democratic environments 4) Access: Securing equitable and affordable access. CRIS Thematic Working Groups (TWGs) In order to facilitate the development of the campaign's discourse on the designated CRIS themes, four Thematic Working Groups are being developed. Purpose The working groups are intended to support the CRIS campaign by producing advocacy, educational and informational content on issues related to communication rights. Each groups' role will be to actively develop and put forward aspects of the debate surrounding communication rights and communication for development. Objectives Development of discourse and strategies . The first task to be undertaken by each TWG will be an in-depth analysis of its specified focus area. Each group will provide an 8-10 page Thematic Brief which: S Identifies and defines the key issues related to its focus area; S Develops a realm of discourse around these issues which adheres to the governing principles of the CRIS charter; and S Specifies appropriate demands and attainable, timely objectives for the campaign related to the group's focus area. These reports will serve as an assertion and explanation of the CRIS position on specific communication rights issues and governance priorities. To maximise their impact and relevance, the briefs are to incorporate Gender as a cut-crossing theme throughout the research. . Each group will summarize its Thematic Brief into a two-page pamphlet for public communication. The purpose of these pamphlets is to: S Involve and consult the public on the establishment of communication rights issues; S Encourage public debate on such issues; and S Increase public knowledge and understanding of the CRIS position on communication rights issues. The groups' suggestions on issues, policy and actions should be abbreviated into four key areas which still convey the full scope of the thematic discourse to the public. . Each TWG will outline a work plan with specific, achievable goals; this outline will contribute to the formulation of a general CRIS strategy. Consultation, Publication and External Relations . Participants in the groups will be expected to respond to editorial demands and to provide content to external agents on an ad hoc basis. This includes but is not limited to a) providing content for any press release distributed by the CRIS campaign; b) providing statements in reaction to policy plans and implementations; c) producing campaign documents (either as new research or education and introduction materials). . Participants will be expected to identify areas of co-operation with Civil Society movements and establish links with them in order to develop common themes and discourses. . Participants will be encouraged to attend relevant international events linked to their thematic area. (CRIS is actively seeking funding in order to provide grants for such attendance). . Each group will post documents and materials on the CRIS website as they are developed. Monitoring . Thematic Working Groups will monitor events and international policy initiatives and developments in their focus area in order to provide informed and well-considered advice to the campaign on relevant international issues when they arise. Procedures and Meetings Membership . TWG members must be in full support of CRIS's vision and aims and must demonstrate such support by signing the CRIS charter. . Members must be willing to commit at least 10 hours a month to working on the campaign; this time commitment will not necessarily be evenly distributed, but will be on an as-needed basis dictated by relevant events and demands. . CRIS is particularly keen to involve people from the "South" in the groups. Although English is the primary working language of the CRIS campaign, all published CRIS documents will be translated into French and Spanish. CRIS will also endeavor to have as many documents as possible translated into Portuguese and Italian. While the intention is that Thematic Working Grups will operate as teams, CRIS seeks to include scholars, practitioners and activists already involved in communication and media research and activities. This will ensure that participants are able to situate their existing professional activities within the context of the campaign, thus contributing much-needed expertise while simultaneously enriching their own program of work through group discussion and increased public exposure to their ideas. Meetings Group work will be conducted on-line, initially through list-serves, and possibly later on discussion boards and when possible, face to face. Coordinators The campaign is also looking for volunteers to coordinate these groups. Responsibilities for TWG Coordinators include but are not limited to: . Chairing group meetings . Serving as a point of contact and accountability for the thematic groups and the CRIS campaign coordinator. . Liaising with specific designated members of the CRIS International Organising Committee for official campaign docs (such as campaign demands etc) . Organising and distributing work and activities . Coordinating workplans Contribute to CRIS! Communication Rights in the Information Society (CRIS) is a campaign to ensure that communication rights are central to the information society. The campaign seeks highly-motivated individuals to join one of four Thematic Working Groups to support the campaign in its research and outreach capacity. The CRIS campaign is calling on media and communication experts to help define and advance the realm of the campaign's discourse on issues related to four key themes as per the CRIS Charter http://www.crisinfo.org/live/index.php?section=3&subsection=2 · "Information Security" · Intellectual Property Rights on Communication and Culture · Media Diversity and Communication for Development · Access This is an excellent opportunity for scholars, practitioners and activists already involved in communication and media research to see their work implemented by an international campaign promoting communication rights and civil society. Getting involved will allow participants to situate their existing professional activities within the context of the campaign, thus enabling them to contribute their much-needed expertise while simultaneously enriching their own program of work through group discussions and increased public exposure to their ideas. While the work to be done by the groups is both timely and urgent, CRIS intends for no participant to have to contribute more than ten hours a month to the campaign. By incorporating volunteers' existing research, and through group cooperation, each group should be able to meet ad hoc publishing and monitoring demands without undue responsibilities placed on any individual By joining one of these groups, you can help ensure the saliency and success of the CRIS campaign. It is the Thematic Working Groups that will make CRIS's platform both relevant and vibrant. We welcome communication specialists who are willing to undertake such a commitment and who will make the most out of networking with like-minded communication researchers and activists. For further information, please contact act at crisinfo.org From monica at sarai.net Mon Aug 25 12:19:28 2003 From: monica at sarai.net (Monica Narula) Date: Mon, 25 Aug 2003 12:19:28 +0530 Subject: [Commons-Law] Fwd: Aveda - Trademark on "Indigenous" Message-ID: How in the world can Aveda do this??!! ANd i mean that not rhetorically, but in real terms. This is tantamount to my trademarking 'installation'!! best M >Delivered-To: monica at sarai.net >From: "nettime's word police" >Subject: Aveda - Trademark on "Indigenous" >Date: Fri, 22 Aug 2003 12:44:10 +0200 >To: nettime >Sender: nettime-l-request at bbs.thing.net >Reply-To: "nettime's word police" >X-Spam-Status: No, hits=-6.6 required=5.0 > tests=BAYES_01 > version=2.53 >X-Spam-Level: >X-Spam-Checker-Version: SpamAssassin 2.53 (1.174.2.15-2003-03-30-exp) >X-Sanitizer: Mail Sanitizer > > >-----Original Message----- >From: ------x----- >Sent: Wednesday, August 13, 2003 1:21 AM >Subject: Aveda - Trademark on "Indigenous" >To: -----x------ > > >Good morning colleagues, > ><...> > >I came across something that I found quite disturbing and I am hoping >that you may be able to assist me. > >It appears that Aveda Corporation has registered a trademark for the >term "Indigenous" in a number of jurisdictions including U.S., Canada, >Australia, NZ and Japan. I am hoping that one of you might be able to >provide me with an opinion on whether the trademark registrations below >may be in contravention of any international or domestic trademark >laws. > >Please follow the following links: > >http://www.aveda.com/protect/we/indigenous.asp > >http://strategis.ic.gc.ca/SSG/1028/trdp102896100e.html > >http://tess2.uspto.gov/bin/showfield?f=doc&state=fu1bma.2.1 > >http://pericles.ipaustralia.gov.au/atmoss/falcon_details.show_tm_details?p_tm_number=806883&p_search_no=2&p_ExtDisp=D&p_detail=QUICK&p_rec_no=1&p_r >ec_all=11 > > > > > >----+-------+---------+--- >http://felix.openflows.org > ># distributed via : no commercial use without permission ># is a moderated mailing list for net criticism, ># collaborative text filtering and cultural politics of the nets ># more info: majordomo at bbs.thing.net and "info nettime-l" in the msg body ># archive: http://www.nettime.org contact: nettime at bbs.thing.net -- Monica Narula Sarai:The New Media Initiative 29 Rajpur Road, Delhi 110 054 www.sarai.net From saif42 at hotmail.com Tue Aug 26 20:56:19 2003 From: saif42 at hotmail.com (Dev Gangjee) Date: Tue, 26 Aug 2003 16:26:19 +0100 Subject: [Commons-Law] Fwd: Aveda - Trademark on "Indigenous" References: Message-ID: Dear Monica I've had a look at the pending US trademark registration details at the Trademark registry website and it looks like they're serious. If I understand it correctly the mark is currently open to opposition proceedings - they appear to have abandoned a similar mark in 1994. The way the law generally works is :- In order for a mark to be registered, it 1. Must be distinctive; (i.e. allow a consumer to associate the mark with one particular undertaking) and 2. As an additional requirement, it should not be descriptive (i.e. normally marks like 'soap' or 'great' will not be registerable). It looks like this mark should fail both hurdles if there is any fair examination of it. The only way a mark can overcome these hurdles is where although it consists of a common word, it gets a 'secondary meaning' or acquired distinctiveness through use in the marketplace - over a sufficiently long period buyers come to associate the word with only one particular company. A precaution is that even in such situations, the owner normally gets trademark rights only for a particular category of goods. (In this case Aveda have filed for the categories of perfumes, cosmetics etc) So even if the mark is either immediately granted (poor examination by the registry) or can prove 'secondary meaning', having marketed the product already for a few years, their rights will be limited to (a) perfumes, cosmetics etc (b) in the territory of the United States - unless they also file an international aplication Whats even more scary is the number of applications for 'indigenous' - a quick visit to http://www.uspto.gov/main/trademarks.htm and typing in 'indigenous' into the search option brings up 13 records. I completely agree with your bewilderment at the absurdity of a system which allows such a thing to happen. Its a problem which is also seen in patent law - where the examining registry, which ought to act as a realistic filter to prevent excessively broad patent claims, is increasingly finding itself inundated with complex patents and so the quality of examination suffers in a race to clear backlogs. Here in trademarks its a potential (and permanent) monopoly over language which is at stake. I'm going to check if a letter/email to the examiner would constitute a valid opposition - if we could even begin an opposition electronically, it may be something. Alternatively we could contact Indigenous Peoples/First Nations Organizations in the US and inform them that its happening. Dev ----- Original Message ----- From: "Monica Narula" To: Sent: Monday, August 25, 2003 7:49 AM Subject: [Commons-Law] Fwd: Aveda - Trademark on "Indigenous" > How in the world can Aveda do this??!! ANd i mean that not > rhetorically, but in real terms. This is tantamount to my > trademarking 'installation'!! > > best > M > > >Delivered-To: monica at sarai.net > >From: "nettime's word police" > >Subject: Aveda - Trademark on "Indigenous" > >Date: Fri, 22 Aug 2003 12:44:10 +0200 > >To: nettime > >Sender: nettime-l-request at bbs.thing.net > >Reply-To: "nettime's word police" > >X-Spam-Status: No, hits=-6.6 required=5.0 > > tests=BAYES_01 > > version=2.53 > >X-Spam-Level: > >X-Spam-Checker-Version: SpamAssassin 2.53 (1.174.2.15-2003-03-30-exp) > >X-Sanitizer: Mail Sanitizer > > > > > >-----Original Message----- > >From: ------x----- > >Sent: Wednesday, August 13, 2003 1:21 AM > >Subject: Aveda - Trademark on "Indigenous" > >To: -----x------ > > > > > >Good morning colleagues, > > > ><...> > > > >I came across something that I found quite disturbing and I am hoping > >that you may be able to assist me. > > > >It appears that Aveda Corporation has registered a trademark for the > >term "Indigenous" in a number of jurisdictions including U.S., Canada, > >Australia, NZ and Japan. I am hoping that one of you might be able to > >provide me with an opinion on whether the trademark registrations below > >may be in contravention of any international or domestic trademark > >laws. > > > >Please follow the following links: > > > >http://www.aveda.com/protect/we/indigenous.asp > > > >http://strategis.ic.gc.ca/SSG/1028/trdp102896100e.html > > > >http://tess2.uspto.gov/bin/showfield?f=doc&state=fu1bma.2.1 > > > >http://pericles.ipaustralia.gov.au/atmoss/falcon_details.show_tm_details?p_ tm_number=806883&p_search_no=2&p_ExtDisp=D&p_detail=QUICK&p_rec_no=1&p_r > >ec_all=11 > > > > > > > > > > > >----+-------+---------+--- > >http://felix.openflows.org > > > ># distributed via : no commercial use without permission > ># is a moderated mailing list for net criticism, > ># collaborative text filtering and cultural politics of the nets > ># more info: majordomo at bbs.thing.net and "info nettime-l" in the msg body > ># archive: http://www.nettime.org contact: nettime at bbs.thing.net > > > -- > Monica Narula > Sarai:The New Media Initiative > 29 Rajpur Road, Delhi 110 054 > www.sarai.net > _______________________________________________ > commons-law mailing list > commons-law at mail.sarai.net > http://mail.sarai.net/cgi-bin/mailman/listinfo/commons-law > From meyarivan at sarai.net Tue Aug 26 22:39:15 2003 From: meyarivan at sarai.net (mary) Date: Tue, 26 Aug 2003 22:39:15 +0530 Subject: [Commons-Law] Demonstrations Against EU Software Patents Message-ID: <20030826170915.GB576@mail.sarai.net> On Wednesday August 27th, there will be a demonstration at the European Parliament in Brussels against the proposed directive on software patents, organised by the FFII. As an additional (or alternative) action, people are encouraged to participate in an online demonstration that day, replacing the main page of their website with a text explaining the dangers of introducing unlimited patentability in Europe. The proposed directive would make it impossible to refuse patents on algorithms and business methods such as a recently uncovered European patent from Amazon on ordering a gift for and automatically delivering it to a third party, which is even broader than its infamous 1-Click patent. Relevant URLs ------------- http://yro.slashdot.org/yro/03/08/26/0147202.shtml?tid=155&tid=185&tid=99 http://yro.slashdot.org/yro/03/08/20/1244241.shtml?tid=155 http://swpat.ffii.org/group/demo/index.en.html From sunil at mahiti.org Sun Aug 31 01:16:20 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 31 Aug 2003 01:16:20 +0530 Subject: [Commons-Law] WIPO + Open Source + Microsoft Lobbyists Message-ID: <1061632232.3672.4.camel@mahitilaptop.mahitinet> The quiet war over open-source By Jonathan Krim / The Washington Post WASHINGTON -- Every day now, it seems, we do battle with technology. If it isn't spam, it's worms. If it isn't the worms, it's viruses, or hacking, or identity theft. Sometimes, it's the gadgets and software we buy that are still too hard to use. But as technology in general, and the Internet in particular, drives deeper into the fabric of daily life, battles also rage behind the scenes. They are struggles for control over how the Internet should work, over who sets the rules for its pipes and gateways and who owns the material that moves through them. These are the wars fought with armies of corporate lobbyists, technologists and citizen activists but largely ignored by the general public. And none is larger, or carries higher financial stakes, than the issue with the eye-glazing name of intellectual property. Consumers are getting a taste of this right now, as the major record companies sue hundreds of people for stealing their works by using file-sharing programs. On another front, "open-source" software, which relies on collaboration and sharing of computer code rather than traditional for-profit development and distribution of programs, is capturing the attention of cash-strapped governments and businesses as a less-expensive alternative to commercial products. Open-source software has been embraced by some companies that are building businesses around it. But it is the bane of others, including the industry's most powerful player, Microsoft Corp. The world's largest software maker is lobbying furiously in state, national and international capitals against laws that would promote the consideration or use of open-source software. So alarmed agents of Microsoft sprang into high gear in June after a surprising quote appeared in Nature magazine from an official of the World Intellectual Property Organization (WIPO). The official said the Switzerland-based group of about 180 nations, which promotes intellectual-property rights and standards around the globe, was intrigued by the growth of the open-source movement and welcomed the idea of a meeting devoted to open-source's place in the intellectual-property landscape. The proposal for the meeting had come in a letter from nearly 60 technologists, economists and academics from around the world, and was organized by James Love, who runs the Ralph Nader-affiliated Consumer Project on Technology. Love and others argue that in some areas, such as pharmaceuticals or software that powers critical infrastructure or educational tools, developing nations in particular would benefit from less restrictive or alternative copyright, patent or trademark systems. In short order, lobbyists from Microsoft-funded trade groups were pushing officials at the State Department and the U.S. Patent and Trademark Office to squelch the meeting. One lobbyist, Emery Simon with the Business Software Alliance, said his group objected to the suggestion in the proposal that overly broad or restrictive intellectual-property rights might in some cases stunt technological innovation and economic growth. Simon insists that his group does not oppose open-source software, or discussion of the issue, but fights to defend the notion that a strong system of proprietary rights offers the best avenue for the development of groundbreaking software by giving its inventors economic incentive to do so. And he said that the BSA's governing board, composed of several companies in addition to Microsoft, unanimously opposed the letter and the meeting. The U.S. government, which wields considerable clout in WIPO, might not have needed prodding from Microsoft to demand that the idea of an open-source meeting be quashed. Lois Boland, director of international relations for the U.S. Patent and Trademark Office, said that open-source software runs counter to the mission of WIPO, which is to promote intellectual-property rights. "To hold a meeting which has as its purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO," she said. She added that the WIPO official who embraced the meeting had done so without proper consultation with the member states, and that WIPO's budget already is strained and cannot accommodate another meeting next year. Boland said that if groups such as Love's want an international forum for discussion of open-source, they need to find another organization to host it. The WIPO official, Francis Gurry, did not return numerous calls for comment, but the organization has said it no longer has plans for an open-source gathering. The meeting dust-up is further inflaming an argument that has the fervor of religious debate. Open-source proponents note that its software is here to stay, gaining adoption within the federal government and elsewhere. And they argue that many open-source models rely on property rights through licenses, but apply them in less traditional ways. More broadly, though, they envision a world in which the Internet is the connective tissue that creates a public commons, a place where art and technology should be shared as well as bought and sold. Why, they ask, should that not be debated with vigor? But open-source is not just a political challenge. It strikes a starkly different, and sometimes opposite, pose from that of traditional capitalist systems. And that prospect quickly draws the lobbyists, even if the public isn't tuned in. -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw From monica at sarai.net Wed Aug 27 01:22:24 2003 From: monica at sarai.net (Monica Narula) Date: Wed, 27 Aug 2003 01:22:24 +0530 Subject: [Commons-Law] Fwd: Aveda - Trademark on "Indigenous" In-Reply-To: References: Message-ID: Hi Dev, everyone, >From the list that the original Aveda news was posted on, i am collating and sending the 2 responses that have come in. You might find it interesting. And it would really be interesting to test if an email would constitute as valid opposition. Or if not, what would it take... best M To: nettime-l at bbs.thing.net Date: Mon, 25 Aug 2003 18:59:59 -0700 From: Michael H Goldhaber Subject: Re: Aveda - Trademark on "Indigenous" Sender: nettime-l-request at bbs.thing.net Reply-To: Michael H Goldhaber X-Spam-Status: No, hits=-9.4 required=5.0 tests=EMAIL_ATTRIBUTION,MSG_ID_ADDED_BY_MTA_3,QUOTED_EMAIL_TEXT version=2.53 X-Spam-Level: X-Spam-Checker-Version: SpamAssassin 2.53 (1.174.2.15-2003-03-30-exp) X-Sanitizer: Mail Sanitizer Having written about trademarks (see "Language as a Public Good Under Threat: The Private Ownership of Brand Names" in "Not for sale: In Defense of Public Goods," Anton, Fisk and Holmstrom, eds. Westview Press, 2000) I am less sanguine about the possiblity of getting the "Indigenous" trademark reversed. All sorts of common words are used in trademarks, from Apple Computers to Poison as a perfume. The trademark, legally, only restricts use of the name as a porduct label for a similar product. Indigenous as a word remains perfectly usable by anyonen for most purposes, at least theoretically. that does not mean however that Aveda might not try to intimidate anyone else using the term. Of course, if others who make or sell products similar to Aveda's line oof beauty products had used the term Indigenous in similasr enough contexts, and if they have the money to fight the legal cases, Aveda's trademark might be overturned. Best, Michael Michael H. Goldhaber From: "N Jett" To: nettime-l at bbs.thing.net Subject: Re: Aveda - Trademark on "Indigenous" Date: Fri, 22 Aug 2003 18:23:59 +0000 Sender: nettime-l-request at bbs.thing.net Reply-To: "N Jett" X-Spam-Status: No, hits=2.0 required=5.0 tests=MSG_ID_ADDED_BY_MTA_3,SEMIFORGED_HOTMAIL_RCVD version=2.53 X-Spam-Level: ** X-Spam-Checker-Version: SpamAssassin 2.53 (1.174.2.15-2003-03-30-exp) X-Sanitizer: Mail Sanitizer I am not a lawyer (IANAL), not yet anyways - but from my somewhat informed view this could easily go either way in a US court, it really depends on what they do with it. Personally, I think it could easily be called a "generic" term, something that can't be covered by a trademark. Politically they will get torn up over it. If anyone is interested in challenging Aveda's trademark on "indigenous" here is the relevant law which explains the why and how trademarks can be revoked in the US: http://www4.law.cornell.edu/uscode/15/1064.html -jett (http://gogobot.blogspot.com) At 16:26 +0100 26/08/03, Dev Gangjee wrote: >Dear Monica > >I've had a look at the pending US trademark registration details at the >Trademark registry website and it looks like they're serious. >If I understand it correctly the mark is currently open to opposition >proceedings - they appear to have abandoned a similar mark in 1994. > >The way the law generally works is :- >In order for a mark to be registered, it >1. Must be distinctive; (i.e. allow a consumer to associate the mark with >one particular undertaking) and >2. As an additional requirement, it should not be descriptive (i.e. normally >marks like 'soap' or 'great' will not be registerable). >It looks like this mark should fail both hurdles if there is any fair >examination of it. > >The only way a mark can overcome these hurdles is where although it consists >of a common word, it gets a 'secondary meaning' or acquired distinctiveness >through use in the marketplace - over a sufficiently long period buyers come >to associate the word with only one particular company. A precaution is that >even in such situations, the owner normally gets trademark rights only for a >particular category of goods. (In this case Aveda have filed for the >categories of perfumes, cosmetics etc) >So even if the mark is either immediately granted (poor examination by the >registry) or can prove 'secondary meaning', having marketed the product >already for a few years, their rights will be limited to (a) perfumes, >cosmetics etc (b) in the territory of the United States - unless they also >file an international aplication > >Whats even more scary is the number of applications for 'indigenous' - a >quick visit to http://www.uspto.gov/main/trademarks.htm and typing in >'indigenous' into the search option brings up 13 records. > >I completely agree with your bewilderment at the absurdity of a system which >allows such a thing to happen. Its a problem which is also seen in patent >law - where the examining registry, which ought to act as a realistic filter >to prevent excessively broad patent claims, is increasingly finding itself >inundated with complex patents and so the quality of examination suffers in >a race to clear backlogs. Here in trademarks its a potential (and permanent) >monopoly over language which is at stake. > >I'm going to check if a letter/email to the examiner would constitute a >valid opposition - if we could even begin an opposition electronically, it >may be something. Alternatively we could contact Indigenous Peoples/First >Nations Organizations in the US and inform them that its happening. > >Dev > >----- Original Message ----- >From: "Monica Narula" >To: >Sent: Monday, August 25, 2003 7:49 AM >Subject: [Commons-Law] Fwd: Aveda - Trademark on "Indigenous" > > >> How in the world can Aveda do this??!! ANd i mean that not >> rhetorically, but in real terms. This is tantamount to my >> trademarking 'installation'!! >> >> best >> M >> >> >Delivered-To: monica at sarai.net >> >From: "nettime's word police" >> >Subject: Aveda - Trademark on "Indigenous" >> >Date: Fri, 22 Aug 2003 12:44:10 +0200 >> >To: nettime >> >Sender: nettime-l-request at bbs.thing.net >> >Reply-To: "nettime's word police" >> >X-Spam-Status: No, hits=-6.6 required=5.0 >> > tests=BAYES_01 >> > version=2.53 >> >X-Spam-Level: >> >X-Spam-Checker-Version: SpamAssassin 2.53 (1.174.2.15-2003-03-30-exp) >> >X-Sanitizer: Mail Sanitizer >> > >> > >> >-----Original Message----- >> >From: ------x----- >> >Sent: Wednesday, August 13, 2003 1:21 AM >> >Subject: Aveda - Trademark on "Indigenous" >> >To: -----x------ >> > >> > >> >Good morning colleagues, >> > >> ><...> >> > >> >I came across something that I found quite disturbing and I am hoping >> >that you may be able to assist me. >> > >> >It appears that Aveda Corporation has registered a trademark for the >> >term "Indigenous" in a number of jurisdictions including U.S., Canada, >> >Australia, NZ and Japan. I am hoping that one of you might be able to >> >provide me with an opinion on whether the trademark registrations below >> >may be in contravention of any international or domestic trademark >> >laws. >> > >> >Please follow the following links: >> > >> >http://www.aveda.com/protect/we/indigenous.asp >> > >> >http://strategis.ic.gc.ca/SSG/1028/trdp102896100e.html >> > >> >http://tess2.uspto.gov/bin/showfield?f=doc&state=fu1bma.2.1 >> > >> >>http://pericles.ipaustralia.gov.au/atmoss/falcon_details.show_tm_details?p_ >tm_number=806883&p_search_no=2&p_ExtDisp=D&p_detail=QUICK&p_rec_no=1&p_r >> >ec_all=11 >> > >> > >> > >> > >> > >> >----+-------+---------+--- >> >http://felix.openflows.org >> > >> ># distributed via : no commercial use without permission >> ># is a moderated mailing list for net criticism, >> ># collaborative text filtering and cultural politics of the nets >> ># more info: majordomo at bbs.thing.net and "info nettime-l" in the msg >body >> ># archive: http://www.nettime.org contact: nettime at bbs.thing.net >> >> >> -- >> Monica Narula >> Sarai:The New Media Initiative >> 29 Rajpur Road, Delhi 110 054 >> www.sarai.net >> _______________________________________________ >> commons-law mailing list >> commons-law at mail.sarai.net >> http://mail.sarai.net/cgi-bin/mailman/listinfo/commons-law > > -- Monica Narula Sarai:The New Media Initiative 29 Rajpur Road, Delhi 110 054 www.sarai.net From sunil at mahiti.org Wed Aug 27 09:23:03 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 27 Aug 2003 09:23:03 +0530 Subject: [Commons-Law] WIPO + Open Source + Microsoft Lobbyists Message-ID: <1061632232.3672.4.camel@mahitilaptop.mahitinet> The quiet war over open-source By Jonathan Krim / The Washington Post WASHINGTON -- Every day now, it seems, we do battle with technology. If it isn't spam, it's worms. If it isn't the worms, it's viruses, or hacking, or identity theft. Sometimes, it's the gadgets and software we buy that are still too hard to use. But as technology in general, and the Internet in particular, drives deeper into the fabric of daily life, battles also rage behind the scenes. They are struggles for control over how the Internet should work, over who sets the rules for its pipes and gateways and who owns the material that moves through them. These are the wars fought with armies of corporate lobbyists, technologists and citizen activists but largely ignored by the general public. And none is larger, or carries higher financial stakes, than the issue with the eye-glazing name of intellectual property. Consumers are getting a taste of this right now, as the major record companies sue hundreds of people for stealing their works by using file-sharing programs. On another front, "open-source" software, which relies on collaboration and sharing of computer code rather than traditional for-profit development and distribution of programs, is capturing the attention of cash-strapped governments and businesses as a less-expensive alternative to commercial products. Open-source software has been embraced by some companies that are building businesses around it. But it is the bane of others, including the industry's most powerful player, Microsoft Corp. The world's largest software maker is lobbying furiously in state, national and international capitals against laws that would promote the consideration or use of open-source software. So alarmed agents of Microsoft sprang into high gear in June after a surprising quote appeared in Nature magazine from an official of the World Intellectual Property Organization (WIPO). The official said the Switzerland-based group of about 180 nations, which promotes intellectual-property rights and standards around the globe, was intrigued by the growth of the open-source movement and welcomed the idea of a meeting devoted to open-source's place in the intellectual-property landscape. The proposal for the meeting had come in a letter from nearly 60 technologists, economists and academics from around the world, and was organized by James Love, who runs the Ralph Nader-affiliated Consumer Project on Technology. Love and others argue that in some areas, such as pharmaceuticals or software that powers critical infrastructure or educational tools, developing nations in particular would benefit from less restrictive or alternative copyright, patent or trademark systems. In short order, lobbyists from Microsoft-funded trade groups were pushing officials at the State Department and the U.S. Patent and Trademark Office to squelch the meeting. One lobbyist, Emery Simon with the Business Software Alliance, said his group objected to the suggestion in the proposal that overly broad or restrictive intellectual-property rights might in some cases stunt technological innovation and economic growth. Simon insists that his group does not oppose open-source software, or discussion of the issue, but fights to defend the notion that a strong system of proprietary rights offers the best avenue for the development of groundbreaking software by giving its inventors economic incentive to do so. And he said that the BSA's governing board, composed of several companies in addition to Microsoft, unanimously opposed the letter and the meeting. The U.S. government, which wields considerable clout in WIPO, might not have needed prodding from Microsoft to demand that the idea of an open-source meeting be quashed. Lois Boland, director of international relations for the U.S. Patent and Trademark Office, said that open-source software runs counter to the mission of WIPO, which is to promote intellectual-property rights. "To hold a meeting which has as its purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO," she said. She added that the WIPO official who embraced the meeting had done so without proper consultation with the member states, and that WIPO's budget already is strained and cannot accommodate another meeting next year. Boland said that if groups such as Love's want an international forum for discussion of open-source, they need to find another organization to host it. The WIPO official, Francis Gurry, did not return numerous calls for comment, but the organization has said it no longer has plans for an open-source gathering. The meeting dust-up is further inflaming an argument that has the fervor of religious debate. Open-source proponents note that its software is here to stay, gaining adoption within the federal government and elsewhere. And they argue that many open-source models rely on property rights through licenses, but apply them in less traditional ways. More broadly, though, they envision a world in which the Internet is the connective tissue that creates a public commons, a place where art and technology should be shared as well as bought and sold. Why, they ask, should that not be debated with vigor? But open-source is not just a political challenge. It strikes a starkly different, and sometimes opposite, pose from that of traditional capitalist systems. And that prospect quickly draws the lobbyists, even if the public isn't tuned in. -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw From sunil at mahiti.org Wed Aug 27 09:24:25 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 27 Aug 2003 09:24:25 +0530 Subject: [Commons-Law] RIAA legal threat cuts P2P downloads by 23% Message-ID: <1061633394.3758.9.camel@mahitilaptop.mahitinet> http://www.theregister.co.uk/content/6/32456.html The campaign launched in May by the Recording Industry Ass. of America (RIAA) to target individual music sharers appears to be scaring punters away from file-sharing services, the latest figures from market watcher NPD appear to show. NPD tracks consumer file-sharing activity. It calculated that 14.5 million US households downloaded music files in April. In May the figure fell to 12.7 million, and dropped to 10.4 million in June, the company said today. On a statistical note, the figures listed are calculated from the activity of a sample of 40,000 users, NPD said. In April some 852 million songs were acquired via the Internet. Come June, the figure fell to 655 million. April, says NPD, was a record-setting month, but the fact it doesn't provide a figure for May, suggests the dip was relatively small. Indeed, the average number of files downloaded per household grew between April and June, from 59 to 63. The figures suggest that while hard-core downloaders are grabbing ever more tracks for themselves, more casual punters are holding fire. "Our data suggests that the RIAA's legal tactics have more of an effect on the attitudes and actions of lighter downloaders," said NPD VP Russ Crupnick in a statement. The vast majority of songs downloaded are from P2P services, he added, implying that some at least come from paid-for download services. Apple launched its Mac-based iTunes Music Service at the end of April, but even its impressive success - 6.5 million songs sold by the end of July - is nowhere near enough to counter the apparent decline between April and June. Similar services aimed at Windows users, such as BuyMusic and Listen.com, are likely to do better, but some have come too late to account for much more of the 197 million fewer songs downloaded between April and June than Apple does. Certainly we'll need to see July, August and September figures to see whether all those songs that are now not being nabbed for free from P2P services are being paid for at Apple and the other commercial sites. If the two figures don't match, it will put the nail in the coffin of the argument that punters would pay for music if they could, and confirm the view of the RIAA and its ilk that the only way to stop them is to threaten legal action. However, a more interesting statistic to see would be the number of sample tracks that punters listen to at the iTunes Music Store, BuyMusic and so on. P2P pundits often claim that Grokster, Kazaa, Morpheus and the like are used more for checking out new music rather than acquiring it free of charge. If that's the case, we'd expect to see the number of sample tracks users are listening to increasing at the same rate that the number of P2P downloads are falling. Instead of downloading potentially poorly encoded or virally infected files, music fans are choosing to sample music at the 'legitimate' sites before making music download or, more likely, CD purchases. Such a trend - if it emerges - is both good and bad news for the P2P service providers. Good, because it shows that their users really aren't interested in pirating music, rather in increasing their exposure to new artists and sounds. The bad news is that they prefer to use a clearly above-board service to do so, and not a P2P with its perceived air - rightly or wrongly - of illegitimacy. If NPD's analysis is correct, and it's the threat of legal action that is keeping punters away from the P2P services, it will be interesting to see what effect the RIAA's pledge not to pursue small-scale downloaders has as it becomes more widely known. ® -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw From sunil at mahiti.org Wed Aug 27 09:25:11 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 27 Aug 2003 09:25:11 +0530 Subject: [Commons-Law] Protesters to march against EU software law Message-ID: <1061633626.3758.11.camel@mahitilaptop.mahitinet> http://www.theregister.co.uk/content/4/32457.html By Kieren McCarthy Posted: 21/08/2003 at 14:09 GMT O'Really from Cash'n'Carrion The battle against a change in EU law that would see software opened up to worldwide patent law is hotting up. The key decision in the European Parliament will take place on 1 September but those opposed to the change have arranged a protest demonstration to take place next Wednesday, 27 August in Brussels, outside the Parliament in Place du Luxembourg. The demonstration will then be followed by a small conference held within Parliament, organised by Belgian activists, Eurolinux and FFII in which they hope to persuade MEPs to vote against the measure the following Monday. At the same time, FFII is planning an online demonstration in which websites stop access to their site and post instead a protest page against the issue of software patent. The theory behind it is that with patents introduced, website owners will not be able to know whether they are inadvertently infringing an old patent or not. This is music to our ears. On the balance of all the evidence, the case for allowing software patents into European law is far from argued. Moreover, the evidence from the US is that introducing this proviso into law will have an overall negative effect on the IT industry. It smacks more of protectionism than free and open markets. And it would be a severe blow against the fledgling open source community which has already achieved so much in a very short period of time. However, as we pointed out in June, the case against patents has been damaged by the protesters' approach. Politicians - especially the MEP that put forward the directive, Arlene McCarthy - have been barracked as opposed to persuaded and all the arguments put forward have only been argued from one minority position. If the releases put out by the organisers of the demonstrations and conference demonstrate anything, however, it is that they have become far more politically aware. For example, the arguments put forward now against a change in the law are that it would: * Reduce innovation and increase monopolies in such a basic asset as software, thus harming consumers choice and value for money and depriving citizens of a healthy information society * Undermine e-commerce by legalised extortion from patent holders * Jeopardise basic freedom of creation and publication (a software patent holder could censor publication by the author of an original program) * Cause legal uncertainty to copyright holders through patent inflation, since they won't know they are infringing someone else's patents until blackmailed or sued * Endanger SMEs and professionals who do not have the resources for patent buildup and litigation, and currently concentrate most jobs and innovation in European IT * Introduce a fundamental legal contradiction by using patents to monopolise information (software is only information) instead of its original purpose of dissemination of information on inventions Now, that, as they say, is more like it. On top of that, we also have a number of economists who have looked into the issue and concluded that introducing patent law on software "will have serious detrimental effects on European innovation, growth and competitiveness". It's a good critique and adds more weight to the anti-patent argument - you can read it at Research in Europe. The demonstration will start at noon at Place du Luxembourg (not hard to find) and will last until 2pm, at which point the conference will start and finish, it is estimated, at 4pm. So if you feel strongly about the issue, about open source or about software development in general, now is the time to put your money where your mouth is and get to Brussels for the day. It's easy to get to. You can even get the Eurostar direct from London. ® -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw From sunil at mahiti.org Wed Aug 27 09:27:37 2003 From: sunil at mahiti.org (Sunil Abraham) Date: 27 Aug 2003 09:27:37 +0530 Subject: [Commons-Law] File swapper fights RIAA subpoena Message-ID: <1061634680.3672.23.camel@mahitilaptop.mahitinet> http://news.com.com/2100-1025-5066754.html?part=dht&tag=ntop By John Borland Staff Writer, CNET News.com August 21, 2003, 3:58 PM PT update An anonymous California computer user went to court Thursday to challenge the recording industry's file-trading subpoenas, charging that they are unconstitutional and violate her right to privacy. The legal motion, filed in Washington, D.C., federal court by a "Jane Doe" Internet service subscriber, is the first from an individual whose personal information has been subpoenaed by the Recording Industry Association of America in recent months. The RIAA has used court orders to try to identify more than 1,000 computer users it alleges have been offering copyrighted songs on file-trading networks. It plans to use the information gained to file copyright lawsuits against the individuals. The motion was filed by a pair of Sacramento, Calif., attorneys who said the RIAA had gone too far in its effort to protect its online copyrights. "This is more invasive than someone having secret access to the library books you check out or the videos you rent," Glenn Peterson, one of the attorneys, said in a statement. "The recent efforts of the music industry to root out piracy have addressed a uniquely contemporary problem with Draconian methods--good old-fashioned intimidation combined with access to personal information that would make George Orwell blush." The Jane Doe motion comes as the first individual legal response to the RIAA's effort to sue large numbers of file swappers. It follows similar legal challenges from several Internet service providers (ISPs) and colleges, including Pacific Bell Internet Services, an SBC Communications subsidiary. A Massachusetts federal court has already ruled that some of the group's subpoenas, submitted to the Massachusetts Institute of Technology and Boston College, had not followed the correct legal process and were therefore invalid. That court left open the possibility that the RIAA could simply refile those subpoenas properly, however. According to documents filed with the court, Jane Doe used the Kazaa file-swapping software as a music player largely to listen to songs she had ripped from her own CDs and to music that came pre-loaded on her family computer. She also "participated" in the Kazaa file-swapping community but tried to prevent other people from accessing files on her computer, the documents state. On July 9, the RIAA sent her ISP, Verizon Communications, a subpoena seeking her name, address, phone number and e-mail address. Verizon contacted the anonymous subscriber on July 15, telling her that the group was targeting her. After consulting with attorneys, she asked Verizon to delay providing her information, because she would fight the request. The action filed Thursday is still a preliminary step before settling down to fight on constitutional or other grounds. Because the RIAA document was seeking information from Verizon, not directly from her, she must first petition the court for the right to challenge the subpoena herself. In their briefs, her attorneys argued that the RIAA's unconventional subpoena process has violated her rights to due process, privacy and anonymous association, along with her contract with Verizon. For its part, the RIAA said that Jane Doe's motion to intervene matters little, because a federal court has already upheld the validity of the subpoena process. "The courts have already ruled that you're not anonymous when you're publicly distributing music online," said Matt Oppenheim, senior vice president at the RIAA. "Her lawyers are trying to obtain a free pass to download or upload music online illegally. Their arguments have already been addressed by federal court and been rejected." The Electronic Frontier Foundation, a digital civil liberties group, is also working with some individuals who say their screen names have been the subject of RIAA subpoenas, but it has not yet filed any challenges with the court. However, the group said in other kinds of cases such as libel and defamation, the law allows individuals to intervene in ISP subpoenas when their privacy is at stake. "The most important issue is that if you are innocent, if the RIAA has screwed up, it is critical that individuals have the ability to challenge the subpoenas before their identifies are compromised," said Fred von Lohmann, an EFF attorney. -- Sunil Abraham, sunil at mahiti.org http://www.mahiti.org MAHITI Infotech Pvt. Ltd.'Reducing the cost and complexity of ICTs' 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 4150580. Mobile: 98455 12611 "If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have one idea and we exchange these ideas, then each of us will have two ideas" George B. Shaw From nidhi_tandon at hotmail.com Thu Aug 28 09:45:43 2003 From: nidhi_tandon at hotmail.com (Nidhi Tandon) Date: Thu, 28 Aug 2003 09:45:43 +0530 Subject: [Commons-Law] DVD CCA v. Bunner Ruling Message-ID: An important case relating to trade secrets, reverse engineering/independent development, and the right to free speech. -------------------------- California Court Rules for DVD Industry DAVID KRAVETS Associated Press http://www.bayarea.com/mld/montereyherald/business/6614738.htm ------------------------- SAN FRANCISCO - The California Supreme Court ruled Monday that courts may block Internet users from posting codes that could be used to illegally copy DVD movies, in a case that pitted trade secret rights against free speech. The justices did not resolve whether the code was in fact a trade secret, leaving that for a lower court to determine. They did rule, however, that they would not tolerate the posting of legitimate trade secrets online and reversed a lower court that said disseminating trade secrets was protected free speech. The case centered on San Francisco computer programmer Andrew Bunner, who in 1999 posted the code to crack the encryption technology and, according to the movie industry, helped users replicate thousands of copyright movies per day. The DVD Copy Control Association, an arm of Hollywood studios, said it controls the encryption system, which scrambles data to prevent unauthorized copying of a movie sold in the DVD format. The association sued Bunner and others under California's Uniform Trade Secrets Act. A San Jose judge ordered Bunner to remove the encryption-cracking code from the Internet. But the 6th District Court of Appeal in San Jose lifted that injunction, a move the DVD Copy Control Association said was akin to giving crooks the technology to reproduce protected material such as movies on a large scale. The court of appeal ruled that protecting trade secrets is not as important as "the First Amendment right to freedom of speech." A unanimous Supreme Court, however, ruled otherwise Monday. Justice Janice Rogers Brown, in reversing the appeals court on a 7-0 vote, said an order to remove the code "does not violate the free speech clauses of the United States and California constitutions." The case is not fully resolved, however, because the Supreme Court also ordered the San Jose appeals court to analyze whether the code is still a protected trade secret given its widespread exposure. The DVD association hailed Monday's decision. "This opinion has wide applications to trade secret law," said association attorney Robert G. Sugerman. "Owners of trade secrets can now protect those trade secrets through injunctive relief, which is clearly now available." During oral arguments three months ago, California Attorney General Bill Lockyer joined the group in arguing that industry secrets would be plundered if computer users could post them without court intervention. Companies including Boeing Co., Ford Motor Co. and AOL Time Warner Inc. urged the justices to side with the DVD association, arguing that trade secret protections trump First Amendment speech protections. Bunner did not devise the decryption code, but instead posted it on one of his Web sites. The Norwegian teen who cracked the code, Jon Johansen, was acquitted in Norway in January of charges he stole trade secrets. Bunner, 26, said he has removed any reference to it from the Internet and is fighting the case to stand up for free speech rights. He is one of dozens of people throughout the United States that the association is suing for posting the code. He said Monday he believed his actions were lawful, and said he posted the code to let others play DVDs on their computers. "The idea was to get it out there for an open-source DVD player," Bunner said. His attorney, David A. Greene, said the appeals court could still ultimately support Bunner's actions because the code's global dissemination may not grant it status as a trade secret anymore. ---------------------------------- The Opinion can be found at: http://www.courtinfo.ca.gov/cgi-bin/opinions.cgi?Courts=S For more background information relating to the case, see 1. http://www.eff.org/IP/DVDCCA_case/ 2. http://cyber.law.harvard.edu/openlaw/DVD/ _________________________________________________________________ Over 6,70,000 brides and grooms. http://www.bharatmatrimony.com/cgi-bin/bmclicks1.cgi?74 Click here to join for free. From sudhir75 at hotmail.com Fri Aug 29 10:31:34 2003 From: sudhir75 at hotmail.com (Sudhir Krishnaswamy) Date: Fri, 29 Aug 2003 10:31:34 +0530 Subject: [Commons-Law] Call for Researchers Message-ID: Announcement 29th August 2003 Appointment of Researchers for Sarai/CSDS Intellectual Property Law Project Sarai is an interdisciplinary research programme of the Centre for Study of Developing Societies New Delhi. The Intellectual Property Law research project is a key ingredient of Sarai's overall research interests on media and the city. The project aims to interrogate our current understandings of intellectual property law and the regulation of the knowledge and cultural commodities with a view to developing innovative means of protecting the public domain. Presently, Lawrence Liang and Sudhir Krishnaswamy (from Alternative Law Forum), are involved with the project as Consultants. The project seeks to expand the scope of its research activity and looks to recruit TWO researchers to work with Lawrence and Sudhir for a one year period. Graduate or Post Graduate law students and practitioners are invited to apply for a full-time position as Researchers resident in Bangalore. Researchers will be expected to conduct research and advocacy work with the IPL project team and will be encouraged to develop their research interests in the field. Further they may expect to travel nationally and internationally to present their work and the work of the project. They will be entitled to an adequate monthly stipend and offered a contract of one year duration beginning September 2003. Researchers will be encouraged to continue with the project on completion of the one year contract. Interested candidates may apply with a full CV and one written piece of work to by 7PM Friday September12, 2003. Candidates must be willing to make themselves available for an interview at short notice and commence work as soon as possible. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20030829/7fea5c04/attachment.html From asimov at vsnl.com Sat Aug 30 12:22:24 2003 From: asimov at vsnl.com (Badri Natarajan) Date: Sat, 30 Aug 2003 06:52:24 -0000 Subject: [Commons-Law] DVD CCA v. Bunner Ruling References: Message-ID: <036c01c33c1e$05a9b7c0$70a486ca@manager.cyberoam> The Bunner decision is not quite as bad as this article below paints it. Sure, we lost on First Amendment grounds, but (as the article does point out) the case isn't over yet. For example, the Court has said: "Our decision today is quite limited. We merely hold that the preliminary injunction does not violate the free speech clauses of the United States and California Constitutions, assuming the trial court properly issued the injunction under California's trade secret law." Also see the EFF's press release about the decision for a somewhat different perspective on it: http://www.eff.org/IP/Video/DVDCCA_case/20030825_eff_bunner_pr.php One of the strongest parts of Bunner's case is that the code in question has lost trade secret protection because it is publicly available. The entire basis of this decision was on the *assumption* that this was not true and the original preliminary injunction was correctly granted. But the Court has remanded this, and other trade secret issues for de novo reconsideration by the Court of Appeal. There is an excellent chance that the Court of Appeal will rule in Bunner's favour on these grounds. The Court has ruled that *in this case* the First Amendment rights of Bunner must give way to the Government's interest in assuring effective protection of trade secrets. The Court has NOT ruled that First Amendment scrutiny is not required for the disclosure of trade secrets, which is what the entertainment companies wanted. Even the Court's First Amendment analysis has one key weak point (in my opinion). The Court distinguishes the US Supreme Court's judgment in Bartnicki v Vopper where republishing of private phone conversations was upheld on First Amendment grounds and uses some statements in Bartnicki to justify its view that trade secrets and other matters of purely private concern do not deserve such a high standard of First Amendment protection as speech regarding matters of public concern. The Court goes on to hold that disclosing the DeCSS code is a matter of private concern. However, that conclusion is eminently arguable. Even as a general proposition it cannot be assumed that trade secrets by their very nature are purely matters of private concern. Although they may generally be so, when they DO become matters of public concern, they will be subject to First Amendment protection and trade secret law must give way to that. For an excellent discussion of the interaction between trade secrets and the First Amendment (written before this decision came out but discussing earlier stages of this case in detail) see Pamela Samuelon's article at: http://www.sims.berkeley.edu/~pam/papers/TS%201st%20A%203d%20dr.pdf Badri ----- Original Message ----- From: Nidhi Tandon To: Sent: Thursday, August 28, 2003 9:45 AM Subject: [Commons-Law] DVD CCA v. Bunner Ruling > An important case relating to trade secrets, reverse engineering/independent > development, and the right to free speech. > > -------------------------- > California Court Rules for DVD Industry > DAVID KRAVETS > Associated Press > http://www.bayarea.com/mld/montereyherald/business/6614738.htm > ------------------------- > > SAN FRANCISCO - The California Supreme Court ruled Monday that courts may > block Internet users from posting codes that could be used to illegally copy > DVD movies, in a case that pitted trade secret rights against free speech. > > The justices did not resolve whether the code was in fact a trade secret, > leaving that for a lower court to determine. They did rule, however, that > they would not tolerate the posting of legitimate trade secrets online and > reversed a lower court that said disseminating trade secrets was protected > free speech. > > The case centered on San Francisco computer programmer Andrew Bunner, who in > 1999 posted the code to crack the encryption technology and, according to > the movie industry, helped users replicate thousands of copyright movies per > day. > > The DVD Copy Control Association, an arm of Hollywood studios, said it > controls the encryption system, which scrambles data to prevent unauthorized > copying of a movie sold in the DVD format. The association sued Bunner and > others under California's Uniform Trade Secrets Act. > > A San Jose judge ordered Bunner to remove the encryption-cracking code from > the Internet. But the 6th District Court of Appeal in San Jose lifted that > injunction, a move the DVD Copy Control Association said was akin to giving > crooks the technology to reproduce protected material such as movies on a > large scale. > > The court of appeal ruled that protecting trade secrets is not as important > as "the First Amendment right to freedom of speech." > > A unanimous Supreme Court, however, ruled otherwise Monday. > > Justice Janice Rogers Brown, in reversing the appeals court on a 7-0 vote, > said an order to remove the code "does not violate the free speech clauses > of the United States and California constitutions." > > The case is not fully resolved, however, because the Supreme Court also > ordered the San Jose appeals court to analyze whether the code is still a > protected trade secret given its widespread exposure. The DVD association > hailed Monday's decision. > > "This opinion has wide applications to trade secret law," said association > attorney Robert G. Sugerman. "Owners of trade secrets can now protect those > trade secrets through injunctive relief, which is clearly now available." > > During oral arguments three months ago, California Attorney General Bill > Lockyer joined the group in arguing that industry secrets would be plundered > if computer users could post them without court intervention. Companies > including Boeing Co., Ford Motor Co. and AOL Time Warner Inc. urged the > justices to side with the DVD association, arguing that trade secret > protections trump First Amendment speech protections. > > Bunner did not devise the decryption code, but instead posted it on one of > his Web sites. The Norwegian teen who cracked the code, Jon Johansen, was > acquitted in Norway in January of charges he stole trade secrets. > > Bunner, 26, said he has removed any reference to it from the Internet and is > fighting the case to stand up for free speech rights. He is one of dozens of > people throughout the United States that the association is suing for > posting the code. > > He said Monday he believed his actions were lawful, and said he posted the > code to let others play DVDs on their computers. > > "The idea was to get it out there for an open-source DVD player," Bunner > said. > His attorney, David A. Greene, said the appeals court could still ultimately > support Bunner's actions because the code's global dissemination may not > grant it status as a trade secret anymore. > > ---------------------------------- > > The Opinion can be found at: > http://www.courtinfo.ca.gov/cgi-bin/opinions.cgi?Courts=S > > For more background information relating to the case, see > > 1. http://www.eff.org/IP/DVDCCA_case/ > 2. http://cyber.law.harvard.edu/openlaw/DVD/ > > _________________________________________________________________ > Over 6,70,000 brides and grooms. > http://www.bharatmatrimony.com/cgi-bin/bmclicks1.cgi?74 Click here to join > for free. > > _______________________________________________ > commons-law mailing list > commons-law at mail.sarai.net > http://mail.sarai.net/cgi-bin/mailman/listinfo/commons-law From asimov at vsnl.com Sat Aug 30 12:32:04 2003 From: asimov at vsnl.com (Badri Natarajan) Date: Sat, 30 Aug 2003 07:02:04 -0000 Subject: [Commons-Law] DVD CCA v. Bunner Ruling: One more point References: Message-ID: <037001c33c1f$652b5fe0$70a486ca@manager.cyberoam> Incidentally, the *concurring* opinion of Moreno, J is in some ways more interesting than the majority opinion. Moreno says, (and I agree completely): "I concur in the majority's narrow holding, which, as I understand it, is that the First Amendment does not categorically prohibit preliminary injunctions to enjoin the publication of trade secrets." Nobody is disputing that point - the question is whether the preliminary injunction is justifiable in this case on First Amendment grounds - I don't believe so because this is not a matter of "purely private concern" - while the California Supreme Court clearly believes that it *is* such a matter. Moreno J, also encouragingly goes on to say: "Second, I would forgo further proceedings in the Court of Appeal and simply affirm that court's judgment. In my view, the DVD Copy Control Association's (DVD CCA) trade secret claim against Bunner is patently without merit for the reasons explained below." The Court of Appeal has been instructed to conduct a de novo factual review of the case, but as Moreno, J says it is really unnecessary. Even a basic knowledge of trade secret law clearly shows that the code in question has become far too public to qualify for trade secret protection any longer. In my opinion there is also some question as to whether DVD CCA made "reasonable efforts" to maintain the secrecy of the code because they took THREE MONTHS to file suit for preliminary injunction after the code was freely available on the Internet. Anyway, now we wait and watch for the Court of Appeal.. 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