From sunil at mahiti.org Wed Jun 2 04:15:51 2004
From: sunil at mahiti.org (Sunil Abraham)
Date: Tue, 01 Jun 2004 22:45:51 +0000
Subject: [Commons-Law] Open Access and creative common sense
Message-ID: <1086129951.602.10.camel@box>
Open Access and creative common sense
http://www.biomedcentral.com/openaccess/archive/?page=features&issue=16
Intellectual property and copyright laws exist to protect creators and
to encourage creative freedom. But many feel that these laws have become
too restrictive for the Internet era and are now stifling creativity and
innovation. Lawrence Lessig, an expert on the law of cyberspace, spoke
to Open Access Now about new projects to help remove the burden of
intellectual property law from authors and scientists.
There are two ways to get hold of Professor Lessig's latest book, Free
Culture. Either you can purchase a hardcover copy from your nearest
bookstore for US$24.95 or you can download it for no charge from his
website. The publisher, Penguin Press, agreed to release Free Culture
under a new type of copyright license being championed by Lessig and by
Creative Commons, a non-profit corporation that he founded. Creative
Commons promotes the use of copyright to encourage the creative re-use
of intellectual works, rather than to prevent it. The organization
provides a free set of copyright licenses that creators can use, which
explicitly allow re-use while protecting certain rights.
"Penguin adopted the licence because they believed that if they did that
they would sell more books," explains Lessig, a professor at Stanford
Law School and founder of the school's Center for Internet and Society.
"Some publishers are beginning to see these licenses as a strategy for
increasing sales." When asked whether it was hard to convince Penguin
Press to adopt this unconventional tactic, Lessig chuckles. "Actually,
they raised the idea first. I wrote about it in my book with respect to
someone else's book. And during the editing process my editor said to me
'should we do this with your publication?' I was intending to suggest
this later in the cycle. But they raised it first and I was excited to
do it," recalls Lessig.
The Creative Commons licenses indicate that copyrighted works are free
for sharing, but only on certain conditions. In the case of Lessig's
book, the license specified that derivative works can be made and
distributed, as long as they are for non-commercial purposes and the
source is attributed. Within days of the launch of Free Culture
derivative works and copies had sprung up all over the Internet. "It has
produced an extraordinary number of remixes of the book in different
forms and formats. There is even an audio MP3 version," says Lessig, who
is delighted to see how other people's creativity is helping to bring
his work to a wider audience. "People have made a lot of changes that
were enabled because of the freedom attached to the license."
"Whether in fact publishers need to control access the way that they
control it today is a contestable assertion," notes Lessig. "They don't
really know themselves." Lessig admires Penguin Press for having the
guts to experiment with the new license. "The fact that they needed to
experiment with it signals that there is a lot of learning to be done.
So far the experiment has been very successful. But we need a lot more
data and a lot more time to get a better sense of how well it works. I
can understand that traditional publishers will view this as competition
with their model - and my view is that competition is something that we
should encourage, so let's have more of it!"
Free Culture
Free Culture is Lessig's third book. His earlier works, Code and The
Future of Ideas, focused on the influence of the Internet and related
technologies. Free Culture, which is subtitled How Big Media Uses
Technology and the Law to Lock Down Culture and Control Creativity,
addresses the wider issue of how intellectual property law is being used
to stifle creativity and innovation. The law seeks a balance between
rewarding creativity and allowing the building on previous ideas from
which new creativity springs. Lessig feels that large powerful
corporations are using these laws to restrict creative freedom. "Never
before have the big cultural monopolies used the fear created by new
technologies, specifically the Internet, to shrink the public domain of
ideas, even as the same corporations use the same technologies to
control more and more what we can and can't do with culture."
In the book's introduction Lessig writes about how the Wright brothers'
invention and the growth of the aviation industry led to changes in
American property laws. In 1945, Justice Douglas of the US Supreme Court
ruled against the traditional doctrine that common law ownership of land
extended to all the airspace above that land, so those flying airplanes
could not be sued for trespassing. "Common sense revolts at the idea,"
wrote Douglas. Lessig is a big advocate of common sense. He reminds us
that "the law adjusts to the technologies of the time. And as it
adjusts, it changes. Ideas that were as solid as rock in one age crumble
in another."
"My view is that the law has, for unintended and intended reasons,
radically changed the burden on creators and producers of knowledge who
wish to share and make their work available to a larger public,"
explains Lessig. "My objective is to work to find ways to reduce that
burden. Creative Commons was started with that as its objective. The
basic intuition was that the law, as it is right now, makes the default
in the Internet 'No' (so one must seek permission first), whereas the
technology screams 'Yes'. Initially people thought that would be the end
of the law, but what happens is that the law finds its revenge, finding
ways to reinforce the default as 'No'."
Creative Commons licenses
Lessig founded Creative Commons in 2001 together with cyber-law and
intellectual property experts and computer scientists. "We were
initially thinking about people who were creating text and music and
film," recalls Lessig. "They wanted to get content that they could build
on or transform, as well as contribute content to a common space so that
others could use it." The Creative Commons licensing tools allow authors
to define the nature of the agreement in terms of attribution,
commercialization, derivative works, and distribution. Creative Commons
enables authors and creators to label their work "Some rights reserved"
or even "No rights reserved."
The license is expressed in three ways: the 'Commons Deed' is a simple,
human-readable, plain-language summary of the license that says what may
be done with the content; the Legal Code ensures that the license will
stand up in court; and the Digital Code is a machine-readable
translation of the license that helps search engines and other
applications identify the terms of use.
"I think that the third layer is the most important," says Lessig. "You
can begin to imagine the Internet developing an intelligence around
content, so that you could search the Internet and say 'give me all the
pictures of the Empire State building that are available for
non-commercial use'. It increasingly makes the user aware of the
freedoms associated with the content, as opposed to being afraid of the
potential liability."
Science Commons
The first licenses were used for blog entries, pictures, music files and
film files. Over a million Internet entries are now linked to Creative
Commons licenses. "Pretty early in the process it became clear that
publishers who want to make sure that their content is available in a
certain free form could take advantage of the same tools," notes Lessig.
Both Public Library of Science and BioMed Central have adopted Creative
Commons licenses for their content to guarantee Open Access. "That led
us into other areas of scientific research where people had been
complaining about the burdens that intellectual property were creating.
And so we started thinking about ways to remove those burdens," says
Lessig.
This led to the Science Commons project. "Numerous scientists have
pointed out ... that, right at the historical moment when we have the
technologies to permit worldwide availability and distributed processing
of scientific data ..., broadening collaboration and accelerating the
pace and depth of discovery, we are busy locking up that data and
slapping legal restrictions on transfer," states the project website.
The Board feel that its experience in creating licensing solutions will
be useful in developing new strategies for sharing scientific
information. Commons hopes to address issues related to patents and
database sharing. "The general idea is that every time there is a burden
that is created by intellectual property that is unrelated to the
underlying purpose of the field of research, then we should find a way
to remove that burden," explains Lessig.
Creative Open Access
Lessig is enthusiastic about what Creative Commons can offer to Open
Access. "Some people view the objective of the Open Access publishing
movement as 'Let's screw the publishers'. I don't think that's a very
interesting or worthwhile objective. I think that the real objective of
Open Access publishing is to enable scientists to distribute their work
as widely as possible around the world. This alternative model has a
number of issues that it's trying to address and I am eager to see it
succeed."
Lessig cites the music industry in the United State as a classic example
of how creativity was stifled by copyright and lawsuits. "There was a
huge amount of innovation of content that was effectively quashed by a
very powerful recording industry. And we are still recovering from
that." He feels that the best away to get around this is to compete and
to demonstrate that the industry can produce high-quality material with
an alternative business model.
The scientific publishing industry is less aggressive than the recording
industry, notes Lessig. "There is less of a war in this context. But the
alternative modes of publishing, supported by scientists or
universities, have a lot to compete against. In some ways it will be
harder to crack it. And it's not certain what the business model is to
crack it," comments Lessig. "There are obviously huge expenses
associated with entry and new technology, and how you support that
expense is going to be difficult. But that's an appropriate challenge
for the competitive market."
Lessig has drawn much inspiration from Richard Stallman and the Free
Software Foundation. "I think that the big lesson from Open Source
Software is that you can support a platform of software development that
provides great positive externalities to the world because it carries
source code that people know how to change. But on the other hand you
can still make money from it by bundling it or tying it into some other
suite of services," says Lessig. "There is an equivalent struggle that
is going to be necessary in the context of Open Access publishing."
Open Access publishing needs to be more creative, suggests Lessig; "In
some sense, that first stage of Open Access publishing has taken some
obvious steps. Public Library of Science, for example, is trying to be
extremely conservative in its approach by basically replicating
high-quality printed journals supplemented with an online version that
is free. But I think that we all need to spend more time with
technologists who can help us think through some of the technical
opportunities that might reduce the costs of producing work and might
actually increase its value," Lessig proposes. This might include
mechanisms for gathering feedback that work effectively to add another
layer of peer review from the consumers of the content, says Lessig.
Historically, new technologies have often been conservative, notes
Lessig. "Look at the very beginning of the film era. Films were
initially just staged plays with cameras put in front of the stage. It
took a long time before filmmakers began to think about the special
genre of filmmaking rather than just remaking plays. The same thing
needs to happen with online publishing."
"Another reason why [the uptake of Open Access] is slow is that Open
Access publishers have to convince a traditional market that this new
form of publication is as valuable, and has an equivalent set of
credentialing signals. So, it's going to take some time to begin to
develop a culture that supports online Open Access publishing, from the
norms as well as the financial perspective. We need stamps of approval,
and how we are going to create them is going to be a challenge. Yet it's
clear to me that there is more than one way to create them."
Lessig isn't against copyright. "Everyone needs copyright. Open Access
publishing isn't publishing without copyright. It's publishing with
copyright exercised in a way that makes material open and available for
others to build upon. It still uses copyright, but for a reason
different than the reason used by proprietary publishers who exclude
people from getting access to the content."
Of course, there will always be people who resist changes to the system,
agrees Lessig. "But technology has changed radically, and in the face of
a radical new technology we should rethink the business model. I can
understand how every business wants to avoid that, but nobody has the
right to prevent progress."
Thanks,
ಸುನೀಲ್
--
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 51150580. Mobile: +91 80 36701931
"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 paivakil at yahoo.co.in Thu Jun 3 10:50:10 2004
From: paivakil at yahoo.co.in (Mahesh T. Pai)
Date: Thu, 3 Jun 2004 10:50:10 +0530
Subject: [Commons-Law] Who is infected?
Message-ID: <20040603052009.GA1579@nandini.home>
Somebody on this list, who has Lawrence Liang's and my email address
in his address book and who accessed the net using this IP address:-
61.95.200.71 sometime between 930 and 10 today morning,
is infected by a virus. I have received the third virus loaded mail
from him.
--
Mahesh T. Pai <<>> http://paivakil.port5.com
താങ്കള്ക്ക് ഇത് വായിക്കാമെങ്കില് താങ്കളുടെ കംപ്യൂട്ടറില് മലയാളം ഉപയോഗിക്കാം
From shuddha at sarai.net Thu Jun 3 18:57:22 2004
From: shuddha at sarai.net (Shuddhabrata Sengupta)
Date: Thu, 03 Jun 2004 18:57:22 +0530
Subject: [Commons-Law] (no subject)
Message-ID: <40BF273A.3060704@sarai.net>
Dear Friends on the Commons Law List,
(Apologies for Cross Posting to those also on the Sarai Reader List)
Paranoia sometimes attains heights difficult for us to even imagine.
That the so called 'War Against Terror' is going drastically wrong is
obvious to anyone who cares to examine the facts as they present
themselves to us. The pictures in Iraqi prisons (although not very
different in terms of the attitudes they portray from what is
commonplace in US prisons) have confirmed that what we are seeing is a
deep systemic pathology manifesting itself in every possible way.
I am appending below news of another symptom of the same malaise.
Not in Iraq, but in the United States. The persons involved are not
'terrorist' but 'artists', people many of us know and respect. Steve
Kurtz, artist, thinker and writer, member of the Critical Arts Ensemble,
known to some of us on this list as an incisive but gentle creative
practitioner- intellectual who has always (together with his colleauges
in CAE) in the foreground of inaugurating new ways of thinking and doing
art, was detained for questioning by the Joint Terrorism Task Force and
FBI agents following the tragic death of his wife Hope due to a cardiac
arrest (see background below). Following this detention, Kurtz's papers,
computer, and materials for a CAE Art Project in process were also imponded.
Subsequently, Kurtz, and his colleagues in the Critical Arts Ensemble,
Beatriz da Costa and Steve Barnes have been subpoenaed under the Patriot
Act in the United States. Some of you on this list may have had occasion
to meet Beatriz at Sarai during her brief time here and have spoken to
her about her projects. I personally know of very few people as gentle
and as sensitive as Beatriz, only a sick and insane state apparatus can
begin to see someone like Beatriz as a suspected terrorist.
The immediate provocation for this sad turn of events seems to be
materials associated with CAE's artistic projects that relate to
Biotechnology. In a strange way, it is almost as if the things that CAE,
in its dramatization of the new militarized culture and apparatus of the
intersection between 'intelligence', state terror and surveillance and
the bio science milieu, used to point our attention towards in gently
allegorical ways, have now become scarily real.
I have always had the highest regard for the intellectual rigour and
artistic depth of the work of the CAE and I have found both their art
projects as well as their writings inspiring, particularly in the way
they are able to address the poltics of knowledge, and critically
interrogate the cultures of science as it is practiced today, without
ever falling into the trap of a vague and ill informed 'anti scientism'
I find the arbitrary actions of the concerned US government agencies
with regard to the members of the CAE insulting and injurious to the
freedom of expression and artistic/scientific inquiry and urge everyone
to make their protest known.
Please read the notice below for more details. I would urge everyone on
this list to write letters in his support at the address given below.
In solidarity with Steve Kurtz, Beatriz da Costa, Steve Barnes and their
colleagues in the Creative Arts Ensemble.
Shuddha
____________________________________
June 2, 2004
FOR IMMEDIATE RELEASE
Contact: Beatriz da Costa, mailto:media at caedefensefund.org ARTISTS
SUBPOENAED IN USA PATRIOT ACT CASE
Feds STILL unable to distinguish art from bioterrorism
Grand jury to convene June 15
HELP URGENTLY NEEDED - SEE BELOW
Three artists have been served subpoenas to appear before a federal
grand jury that will consider bioterrorism charges against a
university professor whose art involves the use of simple biology
equipment.
The subpoenas are the latest installment in a bizarre investigation
in which members of the Joint Terrorism Task Force have mistaken an
art project for a biological weapons laboratory (see end for
background). While most observers have assumed that the Task Force
would realize the absurd error of its initial investigation of Steve
Kurtz, the subpoenas indicate that the feds have instead chosen to
press their "case" against the baffled professor.
Two of the subpoenaed artists--Beatriz da Costa and Steve Barnes--are,
like Kurtz, members of the internationally-acclaimed Critical Art
Ensemble (CAE), an artists' collective that produces artwork to
educate the public about the politics of biotechnology. They were
served the subpoenas by federal agents who tailed them to an art show
at the Massachusetts Museum of Contemporary Art. The third artist,
Paul Vanouse, is, like Kurtz, an art professor at the University at
Buffalo. He has worked with CAE in the past.
The artists involved are at a loss to explain the increasingly bizarre
case. "I have no idea why they're continuing (to investigate)," said
Beatriz da Costa, one of those subpoenaed. "It was shocking that this
investigation was ever launched. That it is continuing is positively
frightening, and shows how vulnerable the PATRIOT Act has made freedom
of speech in this country." Da Costa is an art professor at the
University of California at Irvine.
According to the subpoenas, the FBI is seeking charges under Section
175 of the US Biological Weapons Anti-Terrorism Act of 1989, which has
been expanded by the USA PATRIOT Act. As expanded, this law prohibits
the possession of "any biological agent, toxin, or delivery system"
without the justification of "prophylactic, protective, bona fide
research, or other peaceful purpose." (See
http://www4.law.cornell.edu/uscode/18/175.html for the 1989 law and
http://www.ehrs.upenn.edu/protocols/patriot/sec817.html for its USA
PATRIOT Act expansion.)
Even under the expanded powers of the USA PATRIOT Act, it is difficult
to understand how anyone could view CAE's art as anything other than a
"peaceful purpose." The equipment seized by the FBI consisted mainly of
CAE's most recent project, a mobile DNA extraction laboratory to test
store-bought food for possible contamination by genetically modified
grains and organisms; such equipment can be found in any university's
basic biology lab and even in many high schools (see "Lab Tour" at
http://www.critical-art.net/biotech/free/ for more details).
The grand jury in the case is scheduled to convene June 15 in Buffalo,
New York. Here, the jury will decide whether or not to indict Steve
Kurtz on the charges brought by the FBI. A protest is being planned at
9 a.m. on June 15 outside the courthouse at 138 Delaware Ave. in
Buffalo.
HELP NEEDED
Financial donations:
The CAE Defense Fund has so far received over 200 donations in amounts
ranging from $5 to $400. This is a wonderful outpouring of sympathy,
but a drop in the bucket compared to the potential costs of the case.
To make a donation, please visit http://www.caedefensefund.org/
Letters of support:
Letters and petitions of support from biologists, artists, and others,
especially those in positions of responsibility at prominent
institutions or companies, could be very useful. See
http://www.caedefensefund.org/ for a sample letter of support.
Legal offers and letters of support:
If you are a lawyer, offers of pro bono support or offers to write
amicus briefs would be very helpful.
BACKGROUND
Early morning of May 11, Steve Kurtz awoke to find his wife, Hope,
dead of a cardiac arrest. Kurtz called 911. The police arrived and,
after stumbling across test tubes and petri dishes Kurtz was using
in a current artwork, called in the Joint Terrorism Task Force.
Soon agents from the Task Force and FBI detained Kurtz, cordoned off
the entire block around his house, and later impounded Kurtz's
computers, manuscripts, books, equipment, and even his wife's body for
further analysis. The Buffalo Health Department condemned the house as
a health risk.
Only after the Commissioner of Public Health for New York State had
tested samples from the home and announced there was no public safety
threat was Kurtz able to return home and recover his wife's body. Yet
the FBI would not release the impounded materials, which included
artwork for an upcoming exhibition at the Massachusetts Museum of
Contemporary Art.
While most observers assumed the Task Force would realize that its
initial investigation of Steve Kurtz was a terrible mistake, the
subpoenas indicate that the feds have instead chosen to press their
"case" against Kurtz and possibly others.
To donate to the CAE Defense Fund, and for up-to-date information on
the case, please visit http://www.caedefensefund.org/
For more information on the Critical Art Ensemble, please visit
http://www.critical-art.net/
To join a list about the case, please visit
http://groups.yahoo.com/group/CAE_Defense
Articles and television stories about the case:
http://www.appliedautonomy.com/cae/
http://www.washingtonpost.com/wp-dyn/articles/A8278-2004Jun1.html
http://www.newsday.com/news/local/wire/ny-bc-ny--materialsremoved0601jun01,0,3539235.story?coll=ny-ap-regional-wire
http://www.buffalonews.com/editorial/20040602/1048042.asp
On advice of counsel, Steve Kurtz is unable to answer questions
regarding his case. Please direct questions or comments to
mailto:media at caedefensefund.org.
--
(MAKE SURE TO CUT BELOW LINES OFF WHEN FORWARDING, or your personal
profile will become known to everyone.)
To edit your profile or unsubscribe from mailings, please visit
http://rtmark.com/caedefense/dblist/prof.php?e=shuddha at sarai.net&x=796902518
_________________________________________
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From fred at bytesforall.org Wed Jun 2 12:50:46 2004
From: fred at bytesforall.org (Frederick Noronha (FN))
Date: Wed, 2 Jun 2004 12:50:46 +0530 (IST)
Subject: [Commons-Law] The Internet came with a promise "everyone can be a
publisher"....
Message-ID:
THE INTERNET came with a promise that "everybody can be a publisher".
Although not everybody wants to be a publisher, those who actually do,
find it hard to make it work. As it turns out, this promise is only true
in an extremely limited, technical sense.
Yes, I can set up a website, or put my song on the Net, but
what next? The problem becomes not so much technical as social
-- there is a lot of sharing, but little in terms of making
a living. Money remains squarely in the hands of the old
industry.
The issue of distribution is not just an economic question. It's also
a political one. At stake is the 'semiotic democracy', that is the
ability of the largest number of people to create and share culture
freely. It is about making sure that despite of heavy-hitting marketing
machines, new, independent content can still fill its audience.
In short, the question is how do innovative production
and distribution come together to support each other.
Free Software seems to have found a way to do just that,
but what about the rest of cultural production? How do
we get from technological visions to actual cultures that
are open yet sustainable in a climate where funding runs short?
FreeBitflows will bring together artists, researchers, activists,
and hackers from Europe and beyond to investigate current strategies
to build sustainable, open and experimental cultures through
electronic media. A conference, workshops, performances and
an exhibition will examine cultures of access and the politics of
dissemination from a broad range of perspectives.
http://freebitflows.t0.or.at
S P E A K E R S
Ian Clarke (IE/US) architect and coordinator of the Freenet project
http://www.freenetproject.org
Marco Deserlis (IT) freelance journalist, Internet critic and media
activist http://www.thething.it http://www.d-i-n-a.net
Volker Grassmuck (DE) researcher at the Humbold University Berlin and
initiator of the Wizards of OS conference.
http://waste.informatik.hu-berlin.de/Grassmuck/
Menno Grootveld (NL) co-founder of the former pirate TV channel Robotnik
TV and co-founder of the festival for tactical media, Next 5 Minutes.
http://www.next5minutes.org
Bjoern Hartmann (DE/FR) conceived the Net label textone.org
http://www.textone.org http://www.bjoern.org
Reni Hofmueller (AT) media artist and activist
http://helsinki.at http://www.mur.at
Brewster Kahle (US) founder and digital librarian for the Internat Archive
(IA) http://www.archive.org
Paula Le Dieu (UK) project director of the Creative Archive, a BBC
initiative to distribute its audio and video archival content in ways that
allows the UK public to use it to fuel their own creative endeavours
http://www.bbc.co.uk/pressoffice/pressreleases/stories/2004/03_march/02/on_demand.shtml
Pauline van Mourik Broekman (UK) founding co-editor and co-publisher of
the techno culture magazine Mute, co-founded as "the Arts and Technology
Newspaper" in 1994. http://www.metamute.com/ http://www.openmute.org
Sjoera Nas (NL) works with Bits of Freedom, a not-for-profit privacy and
civil rights organisation http://www.edri.org or http://www.bof.nl
Istvan Rev (HU) professor of History and Political Science, Central
European University, Budapest http://www.osa.ceu.hu
Janko Roettgers (DE/US) writes for on- and offline-media about net
culture, net policy and music on the Internet. http://www.mixburnrip.de
http://www.lowpass.de
Thorsten Schilling (DE) founder and president of mikro.org also
http://www.bpb.de
Pit Schultz (DE) author, artist and computer professional. Co-founder of
Bootlab, Berlin and before that the mailing list Nettime. Currently,
project manager for reboot.fm, a Berlin-based open radio
http://www.Bootlab.org or http://www.reboot.fm
Wendy Selzer (US) staff attorney with the Electronic Frontier Foundation,
where she focusses on intellectual property an dfree speech issues.
http://www.eff.org http://cyber.law.havard.edu/seltzer.html
Kristin Thomas (US) research director and organizer with The Future of
Music Coalition and works for a DC-based PR firm.
http://www.futureofmusic.org
Exhibitions run from June 3 to 17, 2004. Locations: Semperdepot, K-Hause,
Temporary locations: Karlsplatz, Vienna.
POSTED VIA:
--
---------------------------------------------------------
Frederick Noronha * Freelance Journalist * Goa, India
f r e d @ b y t e s f o r a l l . o r g
Ph 832.2409490 / 832.2409783 Cell 9822 122436
784 Near Lourdes Convent, Sonarbhat, Saligao 403511 Goa
---------------------------------------------------------
From dev.gangjee at st-catherines.oxford.ac.uk Thu Jun 3 19:43:25 2004
From: dev.gangjee at st-catherines.oxford.ac.uk (Dev Gangjee)
Date: Thu, 3 Jun 2004 15:13:25 +0100 (BST)
Subject: [Commons-Law] Open Source and Biotech
Message-ID: <20040603141325.0C20122687@webmail218.herald.ox.ac.uk>
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From chandernigam at rediffmail.com Tue Jun 8 17:52:09 2004
From: chandernigam at rediffmail.com (chander nigam)
Date: 8 Jun 2004 12:22:09 -0000
Subject: [Commons-Law] Fwd: first posting
Message-ID: <20040608122209.5703.qmail@webmail26.rediffmail.com>
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From paivakil at yahoo.co.in Tue Jun 8 21:20:40 2004
From: paivakil at yahoo.co.in (Mahesh T. Pai)
Date: Tue, 8 Jun 2004 21:20:40 +0530
Subject: [Commons-Law] Fwd: first posting
In-Reply-To: <20040608122209.5703.qmail@webmail26.rediffmail.com>
References: <20040608122209.5703.qmail@webmail26.rediffmail.com>
Message-ID: <20040608155040.GA8554@nandini.home>
chander nigam said on Tue, Jun 08, 2004 at 12:22:09PM -0000,:
> There is another building on the rightside of the main building,
> known as Tahseel Building.
If I stand on the other side of the main building, the Tahseel
building will be on my left, No? So what side were you standing on?
> side), eastern wing (civil side), K block (on the back side of
> tahseel building), Baba Gurucharan Singh block (near western wing),
If I stand in front of K block, K block is on front of Tahseel
building, No?
> C.L.Joseph block (on the very back side of the main building).
Urm. yetanothernitpick
> Beside the chambers advocates operate from their seats, which are
> spread all over the court premises. Baring a few chambers all are
> unauthorized from one way or another.
Ah. Lawyers breaking the law. Interesting.
> Although I have interviewed number of advocates, court staffs and
Was there a questionnaire?
> For the time being this is it. Very soon my next posting will
> follow. In the next posting I will write a brief note on Delhi Bar
While at it, you will do well the spend some efforts understanding
deployment of Information Technology in lawyers' offices. NOT courts.
Maybe, you will find something as uncomfortable like the unauthorised
chambers. Maybe, you will find that all information is contained in
treeware rather than software. Maybe, you will find that trial side
lawyers do not require even treeware .... but do investigate and find
out for yourselves.
AFAIK, after the (in)famous(*) study of the Tamil Nadu bar by Dr.
N.R. Madhava Menon this is going to be first study of the profession.
(*) Infamous among the lawyers, that is. Truth is very unpalatable
that the profession tried to push the study under the carpet.
Dr. NRM once mentioned at a talk that the Bar Council took ten
years to decide on the issue of releasing the study. (the book was
already printed, if I got him correctly) Wonder if anybody is
willing to repeat that study now.
--
Mahesh T. Pai <<>> http://paivakil.port5.com
"Those willing to give up a little liberty for a little security
deserve neither security nor liberty"
From monica at sarai.net Wed Jun 9 16:12:05 2004
From: monica at sarai.net (Monica Narula)
Date: Wed, 9 Jun 2004 16:12:05 +0530
Subject: [Commons-Law] Fwd: Creative Commons and Re:combo
Message-ID:
Dear all
Re:combo was one of the earliest users of Opus,
and were in dialogue with us on remix culture and
possibilities of freedom of usage of cultural
material, and the building of common resources.
One of the creative commons licences for remix
and repurposing has been named after them
best
M
>With the intention of expanding the spectrum of
>creative and free works serving
>as a basis for new artistic creations ("remakes" or "remixes"), the Creative
>Commons group, now based at Stanford Law School, has published one of the most
>relevant works among licenses that aim to guarantee the free use of cultural
>products.
>
>During the Annual Software Livre conference in Porto Alegre, the organization
>spoke out a homage to Re:combo´s pioneering spirit by naming the new Creative
>Commons license for Remixes of Songs after the artist collective , "Creative
>Commons Recombo 1.0"(http://creativecommons.org/weblog/entry/4234).
>
>In April 2001, Re:combo realized the need to publish the sources of its works
>(sounds, static or moving images, texts,
>installations and any other production
>of the collective) to make them acessible to third parties. Apparently, the
>creation of a license was necessary to assure that these contents remain free
>for subsequent steps of the remixed work.This is how LUCR, the Licença de Uso
>Completo Re:combo came up.
>
>LUCR was published in effect in 2003 and was treated as carefully and
>conscientiously as the collective´s other software and art products. The
>license´s creation was a collaborative act, as much as was the production of
>previous works. The process of developing the
>license enabled us to add one more
>item to the list of art objects created by Re:combo.
>In that moment, the option of creating a License
>for Re:combo works represented
>the most logical step towards a regulation that allows and guarantees its free
>use for third parties without having to deal with those bureaurocratic
>officialisms inherent to today´s entertainment industry.
>
>Keeping in mind the benefits of processes that allow us to apply the desired
>intellectual generosity, it is clear to see what the homage spoken out by
>Creative Commons means to us; a group that we respect and that constituted an
>important reference for the creation of our license. It is a great honour for
>the collective to give name to a license that opens up many possibilities to
>recombine, remake and remix, and that strengthens discourse and action against
>wrong and predacious use of copyright.
>
>Once more we would like to thank for the received homage, and we believe that
>the same is being forwarded to groups that have
>been working with the concept of
>free cultural products: Sarai (www.sarai.net) from India, Detritus
>(www.detritus.net) from the USA, pingfm (http://pingfm.org) from Germany or
>Wu-Ming (www.wumingfoundation.com) from Italy,
>among all the others that inspire
>and push forward cultural progress for humanity.
>
>abraços - thanks a lot
>
>[ ] ' s
>
>Re:combo
>----------------------------------
>re:make/re:combine
>www.recombo.art.br
--
Monica Narula [Raqs Media Collective]
Sarai-CSDS
29 Rajpur Road, Delhi 110 054
www.sarai.net
From meyarivan at sarai.net Wed Jun 9 16:22:43 2004
From: meyarivan at sarai.net (meyarivan at sarai.net)
Date: Wed, 9 Jun 2004 16:22:43 +0530
Subject: [Commons-Law] WIPO Broadcast Treaty Creates New Legal Rights for
Broadcasters
Message-ID: <20040609105243.GF11192@mail.sarai.net>
WIPO (The World Intellectual Property Organization) created by the UN is
now creating a new copyright for 'broadcast transmissions' giving
broadcasters ownership of the content that they broadcast (even if the
program being broadcast is in the public domain). IP Justice has created
a Top 10 List of reasons to reject this proposal and has published a
detailed report that dissects the proposal from a civil liberties and
freedom of expression point of view.
http://yro.slashdot.org/yro/04/06/08/1918237.shtml
--
A previous story on slashdot related to the above:
http://yro.slashdot.org/yro/04/04/07/1925222.shtml
From chandernigam at rediffmail.com Tue Jun 8 17:51:04 2004
From: chandernigam at rediffmail.com (chander nigam)
Date: 8 Jun 2004 12:21:04 -0000
Subject: [Commons-Law] Fwd: second posting
Message-ID: <20040608122104.888.qmail@webmail36.rediffmail.com>
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From: "chander nigam"
To: reader-list at sarai.net
Cc: chandernigam at rediffmail.com
Subject: second posting
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From paivakil at yahoo.co.in Wed Jun 9 21:24:18 2004
From: paivakil at yahoo.co.in (Mahesh T. Pai)
Date: Wed, 9 Jun 2004 21:24:18 +0530
Subject: [Commons-Law] Fwd: second posting
In-Reply-To: <20040608122104.888.qmail@webmail36.rediffmail.com>
References: <20040608122104.888.qmail@webmail36.rediffmail.com>
Message-ID: <20040609155417.GA3725@nandini.home>
chander nigam said on Tue, Jun 08, 2004 at 12:21:04PM -0000,:
> May. This time the advocate requested for summon through the Chief
> Judicial Magistrate (CJM) of District Balia. Summon via CJM is
I'm not sure if I got you right here. THis is a _civil_ case? and how
come an authority constituted under the Code of Criminal Procedure is
serving the summons?
> summon goes through the court under which jurisdiction the
> respondent resides.
You meant the _civil_ court in whose jurisdiction the respondent
resides?
> (which is not less than Rs. 5000/-) she has to spend Rs.200/- on
> every date of hearing for filling the process fees and the charge
> of registered post (PF & RC).
Will you please compare the official rates this as prescribed in the
Civil Rules of Practise?
> service of notice is still considered to be effective by the
You mean `in-effective'?
> She refused and said that if she was saying that he is not
Obstructing a public official in discharge of his durites ....
> policewallah left the place appallingly. Since her husband was
> afraid of his arrest he also fled from the scene.
So he was there, hiding, after all. That he may be innocent, is an
entirely different issue.
> affairs. However, it is a clear case of abetment of suicide under
> section 306 of IPC against the police personals and under this
Well, what about the offences of obstructing a public officer and
harbouring a (suspected) offender?
> I am also trying to collect the statistics of cases in Tis Hazari
> both in terms of civil as well as criminal cases.
Here, in Kerala, subordinate courts send monthly reports of new
filings and disposals to the High Court. The high court goes to great
pains to collate this information on a state wide basis, which is
printed as a book. May be, you should approach the Delhi High Court
for this information?
> this regard I have started looking at criminal cases of two of the
> police stations and trying to find out the statistics of last 2-3
> years. Actually the main purpose of doing this exercise is that I
> am interested in understanding the pattern of crimes and its
> trends in the last few years.
Fine. Usually, several police stations are `attached' to a single
Magistrate court. Collect information from all these police stations.
Compare this with the number of complaints recorded in the
Magistrate's courts. Also, there is an organisation called the
National Crime Records Bureau, which has a local unit. They will
collate entirely independent (AFAIK) statistics. Compare the three
sets of data.
Hey!!The entire nation is waiting for results of your study!!!
> very tough kind of job to get such data, especially in terms of
tsk. tsk... tough to get ANY data. Unless you are a Fulbright
scholar. Which you certainly are not.
--
Mahesh T. Pai <<>> http://paivakil.port5.com
``You can demonstrate a program for a corporate executive, but you
can't make him computer literate.''
From avinash at csdsdelhi.org Thu Jun 10 14:27:31 2004
From: avinash at csdsdelhi.org (Avinash Jha)
Date: Thu, 10 Jun 2004 14:27:31 +0530
Subject: [Commons-Law] Politics of knowledge
Message-ID: <001001c44ec7$c35e1d80$a500a8c0@library>
Note for a discussion on Knowledge and Democracy
In the academy, we are witnessing a situation of conflict between two knowledge formations, which go under the rubric of `theory', and 'science'. 'Theory' can be replaced by 'postmodernism', or relativism, or 'social constructivism'. 'Science' can similarly be exchanged for 'objectivism', or 'scientism'. We are left with essentially the same conflict even when the terms are changed. Conceptions of experience and language and their implications for criteria of right knowledge are central to this debate. Do we need to take sides in this conflict? What is the meaning and social significance of this 'war of ideas'?
In the activist world, we see another struggle between two formations of knowledge and values, which often takes place within the same individuals, or in the same organizational and social context. On the one hand, we have the 'modern' or 'scientific' or 'theoretical and abstract' knowledge and, on the other, we have 'ecological', 'experiential', 'traditional or tribal', or even 'social'. The meaning of 'science' here is much broader. It is not primarily the research activity being carried out in the academy, but a complex of knowledge, power and technology embodying values of dominant class, gender, civilization, or human species itself. Science employs millions of scientists and technical workers in war machines or profit machines. On the opposite side is the reality of egalitarian movements for emancipation of workers, women, children, and citizens which are coextensive with modernity in some sense. This debate is often embroiled in the academic debate between postmodernism and science and the political conflict of liberalism and fundamentalism.
These conflicts, dilemmas and arguments are overshadowed by Globalisation and the emergence of new information technologies. 'Knowledge-society' can in some sense resolve the conflicts of knowledge by accommodating both sides through a model of 'knowledge management'. Both modern and traditional knowledge can be managed and used productively in this system where knowledge is commodity or property. Hardware mirrors the realm of nature and necessity while the software mirrors the realm of freedom and desire, or culture. The body is a battlefield of nature and culture and the location of fulfillment. Knowledge institutions and activities are often torn between the interests of the private sector and civil society. Sponsored research make many results doubtful. Global media thrives. Activists increasingly use internet for communication and organization.
What we have tried to do is to create the context for a discussion on the question of knowledge and democracy. When we want to discuss the issue of knowledge in a democratic society, we encounter at least two dimensions. What should be the philosophical, institutional and social basis for creation, organization and communication of knowledge in a democratic society? In other words, how should knowledge activities and knowledge become a part of life in a democratic society? The second dimension is the question of democratization of knowledge itself. Can something be voted by majority to be truth? Does truth belong to the oppressed?
Comments, responses are welcome.
- Avinash
__________________________________________________
Centre for the Study of Developing Societies, Delhi.
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From davidt at public-domain.org Mon Jun 14 05:34:26 2004
From: davidt at public-domain.org (David Tannenbaum)
Date: Mon, 14 Jun 2004 01:04:26 +0100
Subject: [Commons-Law] India stands up at WIPO
Message-ID: <40CCEB8A.3010408@public-domain.org>
Sarai members might be interested in the recently posted (very detailed)
notes on the WIPO Broadcasting Treaty negotiations at WIPO.
India, along with Brazil and Egypt (representing the African bloc), took
the strongest positions, despite much pressure to ram the treaty through.
The notes are available at http://www.public-domain.org/?q=node/view/42,
and were written in collaboraton with EFF's delegation.
Summary info on the treaty is available from
http://www.public-domain.org/?q=node/view/33.
Best,
David
--
David Tannenbaum
Coordinator
Union for the Public Domain
davidt at public-domain dot org
http://www.public-domain.org
From cindubkrishnan at yahoo.co.in Thu Jun 10 18:08:46 2004
From: cindubkrishnan at yahoo.co.in (=?iso-8859-1?q?cindu=20balakrishnan?=)
Date: Thu, 10 Jun 2004 13:38:46 +0100 (BST)
Subject: [Commons-Law] research proposal
Message-ID: <20040610123846.81559.qmail@web8307.mail.in.yahoo.com>
Dear all,
I am sending my research proposal for your consideration.I would like to hear feedback from you.
regards
cindu
Yahoo! India Matrimony: Find your partner online.
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From paivakil at yahoo.co.in Wed Jun 16 23:39:30 2004
From: paivakil at yahoo.co.in (Mahesh T. Pai)
Date: Wed, 16 Jun 2004 23:39:30 +0530
Subject: [Commons-Law] research proposal
In-Reply-To: <20040610123846.81559.qmail@web8307.mail.in.yahoo.com>
References: <20040610123846.81559.qmail@web8307.mail.in.yahoo.com>
Message-ID: <20040616180930.GA6784@nandini.home>
cindu balakrishnan said on Thu, Jun 10, 2004 at 01:38:46PM +0100,:
> I am sending my research proposal for your consideration.I would
> like to hear feedback from you.
> regards
For the nth time, I do wish that posters do not use proprietary file
formats while posting.
It is not really difficult to use the `file > save as' feature in your
word processor to save these files as plain ASCII or UTF-8 text. The
43 Kilo byte file would have been reduced to a mere 12 K, and would be
easier to read in the mail reader itself, without having to start off
another application for this purpose.
There are a million other reasons. One of them is that you cannot read
this file few years down the line. And I am speaking from experience.
I have a box of floppies containing my LL. M. dissertation which
happened to be created by the DTP operator's `latest' version of this
particular word processor. Hardly 3 years later, I had to jump
through a few hoops to get these files to open in another `latest'
version of this same word processor.
So, if you wish to be able to read these files, some time in the
future, please, please, please, do not use this format.
And if you are interested, you certainly can include this topic as a
part of your study.
--
Mahesh T. Pai <<>> http://paivakil.port5.com
~/\$ mv -vfi linux gnu/linux
From monica at sarai.net Fri Jun 18 19:07:18 2004
From: monica at sarai.net (Monica)
Date: Fri, 18 Jun 2004 19:07:18 +0530
Subject: [Commons-Law] Re: Msg reply
Message-ID:
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*****
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this message because it possibly contained a windows
executable or other potentially dangerous file type.
Contact admin at sarai.net for more information.
From lawrenceliang99 at yahoo.com Mon Jun 21 14:27:00 2004
From: lawrenceliang99 at yahoo.com (Lawrence Liang)
Date: Mon, 21 Jun 2004 01:57:00 -0700 (PDT)
Subject: [Commons-Law] California Digital Library
Message-ID: <20040621085700.71295.qmail@web52710.mail.yahoo.com>
Hi all
I came across this site while looking for the
reference of a book called manay ramayanas, and to my
pleasant surprise found the entire book available
online, and followed the link and found that the
Digital library California has made available a decent
set of academic books , not all of them available to
the public, but quite a few nontetheless.
Hope you guys find it useful and please pass it around
to lit/ anthro/ history students
http://texts.cdlib.org
Lawrence
/
__________________________________
Do you Yahoo!?
Yahoo! Mail is new and improved - Check it out!
http://promotions.yahoo.com/new_mail
From cindubkrishnan at yahoo.co.in Mon Jun 21 18:31:58 2004
From: cindubkrishnan at yahoo.co.in (=?iso-8859-1?q?cindu=20balakrishnan?=)
Date: Mon, 21 Jun 2004 14:01:58 +0100 (BST)
Subject: [Commons-Law] (no subject)
Message-ID: <20040621130158.39360.qmail@web8312.mail.in.yahoo.com>
EFFECTIVENESS OF IPR PROTECTION IN THE FIELD OF
COMPUTER SOFTWARE
Intellectual property is a powerful tool for economic development. Industries and business organizations accumulate large IP assets for use in mergers, acquisitions, joint ventures, cooperative R&D and licensing agreements. IPR management is becoming a major element in competitive business advantage. The scope and subject of IPR protection has undergone remarkable transformation in the past decade. The most significant areas of change include biotechnology, software patents and business methods. Software patents are gaining wider global acceptance, but pose certain issues.
In late 1990s, it became widely understood that computer software may be patented in the United States. Other nations like Japan, Australia, Ireland, Israel and China have followed it. However, the debate arises over the adequacy of existing laws. Thus to achieve maximum possible benefits out of computer software patents for Indian industries, there is a need to examine the Indian legal framework vis-à-vis other legal systems for patenting software in the light of emerging judicial and legal developments worldwide. At the same legal framework should balance the interests of the IPR holders and users. My primary point is that we must try to find out the optimal social policy balance of legal protection for computer software.
Prior to the concept of software patents, the intellect in corporate houses was protected primarily through technological means, copyright law and secrecy. The prohibition in copyright law for unauthorized copying grants the right to the copyright owner to sue infringer for unauthorized copying of the protected work. However, functional aspects of the computer programs are excluded from copy right protection. A competitor may therefore reverse engineering a software product, and copy functional aspects of the copyright product without violating the law. In order to avoid this copyright lawyer were seeking to expand copyright protection to the functional aspect also. They were making an effort to show that functionality is not a bar to copyright protection. It led to further confusion. The copyright cases concerning computer programs exhibit a chronic failure to distinguish merely useful works under copyright from truly functional works, like lawn mowers
and, now, computer programs themselves. Consequently, Judges in the early software copyright cases made the fundamental mistake of treating computer programs as literary works amenable to the same analysis they had used for years in application to works like novels and plays. The result was broad protection of technological features of programs for the very long period of copyright without any showing that the features in question would have qualified for even a twenty year patent.
Development in the last few years, and in particular the PTOs guidelines (61 Fed, Reg. 7478, 1996) have began a new and welcome approach from the patent side. Because the subject matter question had then been mooted, patent lawyers must began to deal with the real issues of program novelty and non-obviousness. Unless and until patent law gets its act together to protect non-code technological innovation in computer programs, clearly and unambiguously, the pressure to effect such protection under copyright will continue.
Concerning the patentability of the software inventions, the subject matter issue is in the prominent place. I have the strong impression that the patent law has gone from Benson(Gottschalk v. Benson) to AT and T Corp. v. Excel Communications Inc.(172F.3d1352) as if it were essentially the only relevant player. Looking into the attitude of the judiciary, the Freeman-Walter-Abele test threatens to significantly limit patentability of all software inventions. This was far away from the Supreme Courts call in Diehr for the patentability of anything under the sun that is made by man. Latest decisions of the Federal Circuit widened the scope of patentable subject matter. When examined in light of the original purposes of the US patent system, these decisions make perfect sense. That is patents are granted to promote inventions, including the novel and non-obvious usage of old ideas. In doing so the court has really struck the balance by interpreting the scope
of patentable subject matter broadly, enough to encompass software having algorithms and business methods.
The recent FTC report put forward certain suggestions to tackle the situation. It clearly reveals that administrative authority is conscious about promotion of innovations and at the same time it calls for the proper balance of competition, patent law and policy. These recommendations seem to be tightening the criteria for patentability that are liberalized by the judiciary.
The patentability of software in India was ambiguous until the Patents (Second Amendment) Act, 2002. Before the amendments software could not be patented but patents could be obtained in respect of novel hardware integrated with software. After the Amendment Act, mathematical or business methods or computer programs per se or algorithms are excluded from the ambit of patentability. The interpretation of the term computer program per se will create problems. US judicial activism will definitely influence the Indian judiciary. Moreover another important question here is who is actually benefited out of patenting of software in India? Indian industries or MNCs from outside? (in the context of most of the industries are service providers). So it should be bridled by the effective legal frame work so as to promote software industries in India.
Software consists of a set of instructions that direct the operation of a computer system. When the software instructions are executed by the computer system it performs the specific task defined by the program. Then two possible functional uses of the software can be identified. First, software can act as the specific technological vehicle for implementing new or existing activities as part of a computer system, actual instructional program for hardware. Second, software serves as a language, which like any another language is a symbolic vehicle for communicating and underlying idea. so we can say that the software has both utilitarian and symbolic aspects. Patents were established to protect the utilitarian application and copyrights evolved to protect non-utilitarian symbolic expressions. In the context of patent claims, this distinction frequently disappears and the computer instruction and communication functionality of software become completely
intertwined. This merger of expression and function also raises concerns that there will be unjustified or improper overlapping of copyright and patent protection for the same program.
After the arrival of the TRIPS, computer programs are to be protected as literary works. Despite the difficulties that the functional aspects of computer programs pose, WTO member countries are bound to protect them under copyright. Computer programs as such are deemed to be non-patentable in most countries. But in US patenting of software has been admitted with a broader view. It may influence the legal frame work of other countries. Patent to the extent that unlike copyright, they protect idea-may have significant implication for the development of software industry. The trend for granting software patents, overlooking the requirements for granting patentability may hinder innovation and unduly restrict competition in an area where countries like India may still create industrial capabilities.
From the above analysis it is clear that the application of IPR law to the computer programs create so many questions. Because of these unresolved questions, the software industry often cannot predict how IPR law applies to specific types of behaviors shown by the firms in the market place, to concerns about specific elements of software or industry wide issues. As a result of this developers are forced to gamble on unpredictable judicial interpretation.
Issues identified are:
1. What protection, patent or copyright is most appropriate for a particular software invention? Will either provide adequate protection?
2. Is computer program as such, independent of associated hardware, patentable?
3. Is the specification in the software patent application an idea or is it an expression?
4. Should there be limits on the availability of patent protection for the program beyond the requirements of traditional patent law, usefulness, novelty and non-obviousness?
5. How far the concept of prior art be satisfied in determining the novelty of the computer program?
6. Since utility does not occur until computation result is applied to a practical problem, is encoded instruction or instructed machine patentable apart from the context of its use?
7. What we are trying to achieve with the patent system? Whether the current legal regime concerning software patent is in complying with the basic philosophy of the patent system?
8. Do our property law premises limit the available interest of the public (in the context of transition of abstract ideas and possessors interests from public domain to private hands?)
9. What are the impacts of open source movement on the software industry?
Yahoo! India Matrimony: Find your partner online.
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From dev.gangjee at st-catherines.oxford.ac.uk Mon Jun 21 19:20:36 2004
From: dev.gangjee at st-catherines.oxford.ac.uk (Dev Gangjee)
Date: Mon, 21 Jun 2004 14:50:36 +0100 (BST)
Subject: [Commons-Law] IPR in the field of Software
In-Reply-To: <20040621130213.AF0B828E069@mail.sarai.net>
Message-ID: <20040621135036.8A91C2268A@webmail218.herald.ox.ac.uk>
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From rajlakshmi_nesargi at yahoo.com Wed Jun 23 16:52:45 2004
From: rajlakshmi_nesargi at yahoo.com (Rajlakshmi Nesargi)
Date: Wed, 23 Jun 2004 04:22:45 -0700 (PDT)
Subject: [Commons-Law] =?iso-8859-1?q?Dealing_with_Pirated_VCD=92s/DVD=92?=
=?iso-8859-1?q?s?=
Message-ID: <20040623112245.47989.qmail@web51605.mail.yahoo.com>
Hi all,
My thought went to the practicality of the Indian Copyright Act and its practical implementation when it comes to a situation that I faced yesterday. I knew that I was not supposed to borrow the pirated VCD�s/DVD�s since it amounts to promoting piracy but I was left with no other choice but to choose from the existing pirated stuff.
The Copyright Act actually states that any Indian citizen can approach the police in whose jurisdiction the shop is situated and the police on such complaint can accompany the complainant to the premises without the issuance of warrant.
Some of the issues that arise out of these provisions are as follows:
To what extent the police oblige and comply with the Act?
To what extent the actual numbers of infringing copies are confiscated?
To what extent such raids deter the acts of such infringers given the fact that the raids happen after successfully going through all the statutory formalities which gives enough scope to the infringer to deal with the infringing copies.
Why can�t India come up with legislations as is in Hong Kong for example Optical Disc Law to keep a track on number of blank cassettes/CD�s etc., raiding five times a day in a particular area and decreasing it accordingly depending on statistical decrease in such piracy.
Best
Rajlakshmi with assistance from Puja Singhal
---------------------------------
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From jeebesh at sarai.net Thu Jun 24 15:39:50 2004
From: jeebesh at sarai.net (Jeebesh Bagchi)
Date: Thu, 24 Jun 2004 15:39:50 +0530
Subject: [Commons-Law] Dealing with Pirated =?windows-1252?Q?VCD=92s/?=
=?windows-1252?Q?DVD=92s?=
In-Reply-To: <20040623112245.47989.qmail@web51605.mail.yahoo.com>
References: <20040623112245.47989.qmail@web51605.mail.yahoo.com>
Message-ID: <40DAA86E.8000601@sarai.net>
Rajlakshmi Nesargi wrote:
> Why can’t India come up with legislations as is in Hong Kong for
> example Optical Disc Law to keep a track on number of blank
> cassettes/CD’s etc., raiding five times a day in a particular area and
> decreasing it accordingly depending on statistical decrease in such
> piracy.
Intriguing!
What do you think this imagined scenario aided by massive and violent
enforcement regime benefit the `aam aadmi`?
Whot social stakes are being protected by this imagined regime of
everyday excess of intervention?
To understand illegal copying we need to seriously engage with social
conflict, and look at the histories of making and protecting property.
Desire for more and more social intervention by states to control the
`copy-form` needs some interrogation.
best
Jeebesh
From tarundua at linux-delhi.org Thu Jun 24 16:02:31 2004
From: tarundua at linux-delhi.org (Tarun Dua)
Date: Thu, 24 Jun 2004 16:02:31 +0530
Subject: [Commons-Law] Dealing with Pirated
=?ISO-8859-1?Q?VCD=92s=2FDVD=92s?=
In-Reply-To: <20040623112245.47989.qmail@web51605.mail.yahoo.com>
References: <20040623112245.47989.qmail@web51605.mail.yahoo.com>
Message-ID: <1088073151.2460.10.camel@tarund>
On Wed, 2004-06-23 at 16:52, Rajlakshmi Nesargi wrote:
> Why cant India come up with legislations as is in Hong Kong for
> example Optical Disc Law to keep a track on number of blank
> cassettes/CDs etc., raiding five times a day in a particular area and
> decreasing it accordingly depending on statistical decrease in such
> piracy.
Horrible thought!!!
I distribute "Free Software" (see http://www.gnu.org/philosophy/free-sw.html ) CDs without violating any copyrights and you want people
raiding my bedroom for that.
Just because I bought a couple of hundred blank CDs.
Whoever told you that sharing is evil.
-Tarun
--
http://www.tarundua.net
Nothing you ever wished to find about Tarun Dua
From lawrenceliang99 at yahoo.com Thu Jun 24 16:20:37 2004
From: lawrenceliang99 at yahoo.com (Lawrence Liang)
Date: Thu, 24 Jun 2004 03:50:37 -0700 (PDT)
Subject: [Commons-Law] Dealing_with_Pirated_VCDs/DVDs
In-Reply-To: <20040623112245.47989.qmail@web51605.mail.yahoo.com>
Message-ID: <20040624105037.31508.qmail@web52703.mail.yahoo.com>
Hi Rajlakshmi
I think your mail presumes that piracy is necessarily
a bad thing, and I think it is perhaps important to
reverse the presumption and ask the question of the
legitimacy of media companies, how we can attempt to
look at non legal media practises within a larger
social and historical context, and within the
contemporary dynamics of globalization of media. In
this context I think it is important to have a
slightly more critical take on legality itself. I am
including a piece that I have been working on, which
tries to locate the larger history of 'piracy' in
India, as well as attempting to link it to attempts at
understanding the illegal city. This was a draft paper
which needs much revision but thought it was important
to respond to the arguments that you have raised
Lawrence
=================
Porous Legalities and Avenues of Participatio
Introduction
More often than not, the story of copyright piracy
narrates itself through the language of statistics and
figures and the narrative strategy of excess,
designed to induce a 'shock and awe' response at the
alarming rate of piracy and illegality' that exists,
especially in non western countries. As with any
story that seeks an international audience, the choice
of narrative strategy is the key and for the story to
be understood and have appeal it will have to
transcend the cultural speceficity under which certain
stories come to be appreciated. This is especially
true when one is attempting one's hand in the genre of
horror stories and in the present case the horror
story of piracy just does not work in terms of
inducing a sense of anxiety and fear in countries like
India.
One must however provide reasons for why these stories
don't work in some context and for that we will have
to travel to distant cities like Delhi and Sao Paulo
and perhaps even walk through the more unfamiliar
bylines of familiar cities like New York. After urban
studies, the idea of an illegal city is familiar to
us. One reads for instance that an average of 40 per
cent and in some cases 70 per cent of the population
of major cities live in illegal conditions.
Furthermore, 70 to 95 % of all new housing is built
illegally. (Durand -Lasserve and Clerc, 1996). The
primary reason for this state of illegality arises
from the nature of land tenure forms in cities, where
the twin tropes of ownership and title are clearly
unable to account for the myriad ways through which
people assert a claim on land and to the city more
generally. The people who live in this perpetual state
of illegality also engage in other networks of
illegality, such as stealing electricity, water,
bribing their way through the Kafkaeque bureaucratic
structures to access civic amenities that the legal
city takes for granted. A first glance at the official
responses to this older illegal city reveals the
familiar face of anonymous statistics and 'shock and
awe' figures. Thus when we cut back the piracy story
and we are told that over 70% of the software used in
India is illegal; we encounter this figure with a
sense of familiarity and not anxiety.
Clearly any simplistic account of the widespread
illegality in terms of efficiency, morality, disorder
or corruption etc. would only perform an epistemic
violence which does little to aid our understanding of
urban experience and the ways in which people create
avenues of participation and make claims to the city.
The contribution of urban studies has been to provide
a more nuanced sense of the phenomenon of the illegal
city.
In a city like Bangalore for instance the urban
planning authority, the Bangalore Development
Authority provides for approximately 15-20% of the
housing requirements, while another 12-15 % are met by
private developers. The rest of the city emerges
outside of planned development and is hence outside
the law. Most urban citizens have no choice but to
build, buy or rent illegal dwellings since they cannot
afford the cheapest legal accommodation or there is
not enough supply to meet the demands of a growing
city, marked by high migration as a result of the new
information technology dreams that also spurs the
imagination of the city's official residents.
A liberal understanding of land tenure forms is
limited because of its understanding of interest in
land relies too heavily on how ownership and
legitimate claims are narrated through the title deed
and other legal documents. Any attempt to understand
the complexities of the ways in which people make a
claim to land in the city would have to take into
account the multiple and complex forms that it takes
in terms of networks of relationships that constitute
a land tenure claim ( the hawker who has a designated
place even though he is not entitled to the place in
any formal manner, the squatter who pays a rent to the
local policeman, the illegal slum that begs borrows
and steals electricity and water from the rest of the
productive city, the unauthorized revenue layout that
gets regularized or legalized near election time on
the basis of their strength as a vote bank).
Writing about the modernist project of planning, James
Holstrom writes that " modernist planning does not
admit or develop productively the paradoxes of its
imagined futures. Instead it attempts to be a plan
without contradictions or conflict. It assumes a
rational domination of the future in which its total
and totalizing plan dissolves any conflict between the
imagined and existing society in the enforced
coherence of its order. This assumption is false and
arrogant as it fails to include as its constituent
element, the conflict, ambiguity and indeterminacy
characteristic of actual social life".
While the older illegal city has been in existence for
a while, in the past ten years there has been another
layer that has been integrated into the experience and
narration of this illegal city. The proliferation of
non legal media practices ranging from pirated VCD's,
DVD, MP3's to grey market mobile phones informs the
practices and imagination of the illegal city. This
paper attempts to understand this new layer of
illegality and the manner in which it integrates into
the older city. The task will be to pose the question
of how the older form and the newer form integrate,
intertwine to collectively interrogate our liberal
assumptions of legality and highlights the limitations
of any study based on a strictly legal understanding
of contemporary urban practices. I will do this
examining the cassette revolution that took place in
India in the eighties, and the sphere of illegality in
which it emerged. Building on some significant
attempts to provide entry points into understanding
this aspect of the city, I would also like to posit
the idea that porous legalities are often the only
modes through which people can access and create
avenues of participation in the new economy
The information era props up a master plan, similar
to that of modernist planning. The institutional
imagination of the era relies on the WTO as chief
architect and planner, copyright lawyers as the
executive managers of this new plan and the only
people who retain their jobs from the old city are the
executors of the old plan, the police force and the
demolition squad. Just as one cannot understand land
tenure through the prism of liberal legality alone,
any attempt to understand the complex networks of
economic and social relations that underlie the
phenomenon of piracy will have to engage with the
conflict over control over the means of technological
and cultural production in the contemporary moment of
globalization. The ways in which the illegal media
city emerges and co exists alongside the vibrant,
innovative and productive debris of the older city,
the schizoid relationship between legality and
illegality in postcolonial cities suggest that the
crisis may not lie in these relations, and we may need
to turn the gaze of the law from the usual suspects of
legality to legality itself and the relations that
underlie its existence. Derrida has said very
poignantly that the admiring fascination of the rebel
can be understood not merely as the fascination for
someone who commits a particular crime but that
someone, in defying the law bares the violence of the
legal system or the juridical order.
Cassette Culture and the creation of the new media
city
Before we begin to point out to the different entry
points through which we can understand this new
illegal city, it would be useful for us to take a trip
to the 80's to understand the developments that
preceded the formation of this new city in India. I
believe that it is critical for us to understand this
period to get a sense of why non state, non elite
electronic cultures have always had a problematic
relationship with law and legality.
Peter Manuel provides us with an excellent history of
the emergence of new media in India tracing out the
cassette revolution that took place from the mid
eighties. This revolution, he claims created a new
aesthetic of media production and consumption that
escapes the totalizing imagination of old media in the
form of national television, radio and cinema.
According to him, new media challenges the one
way, monopolistic, homogenizing tendencies of old
media as it tends to be decentralized in ownership,
control and consumption patterns and hence offer
greater potential for consumer input and interaction.
I shall briefly summarize Manuels� account of the
emergence of cassette culture in India.
In 1908 the British owned GCI had established its
factory in Calcutta and through exclusive distribution
agreements, it came to dominate the market in an
absolute manner. The monopoly had profound cultural
impacts in terms of the local genres and languages
which it either appropriated, ignored or reduced into
a dialect. The necessity of an all India market to
ensure great profits ensured the emergence of an all
India aesthetic form in film music. The dominance of
the Hindi film music and the monopoly of GCI continued
till well past the postcolonial period.
The development model adopted by the Nehruvian state
emphasized state investment in large scale
infrastructure projects like dams, mines, factories
while discouraging luxury consumption through high
import tariffs. These policies of over taxation,
cumbersome licensing inhibited the consumer
electronics industry and related industries. Manuel
reports that by the late seventies however, large
number of immigrant workers to the gulf countries had
begun to bring back cassette players into India (These
were Japanese two-in ones) and the ubiquitous cassette
player soon became a symbol of affluence and object of
modern desire. This is also the period that saw the
emergence of a nascent market for pirate cassettes of
film music, feeding off the growth of cassette players
and also contributing to the expansion of the gray
market where such �luxury' items could be purchased by
the relatively well off.
The liberalization policy of the state in the late
70's designed to stimulate growth, demand, exports and
product quality saw a liberalization of many import
restrictions. The bourgeoning middle class stimulated
the electronic industry and while a few were willing
to pay the high import duties on foreign electronic
goods, a larger number were content tot buy them off
the gray market.
Certain significant developments in this period helped
to create a mature market for consumer electronics
industry:
∑ Reduction of duties enabled Indian
manufacturers to import selected components for local
manufacture of cassette players.
∑ New policies encouraged foreign
collaborations in the field of consumer electronics
including magnetic tape production.
∑ Tape coating became big in India and
from the period of 1982 to 1985, record dealers
switched to cassettes and by the mid 80's cassettes
came to account for 95% of the market.
Sales of cassettes went from $1.2 million in 1980 to
$12 million in 1986 and $21 million in 1990. Export
of Indian made records jumped from 1.65 million rupees
in 1983 to 99.75 million in 1987. By the end of the
80's Indian consumers were buying around 2.5 million
cassette players. This is also the period that saw the
swift decline of GCI- HMV as the dominant/ sole player
in the industry and the emergence of a handful of
large players and over 500 small music producing
companies. In a period of a few years, India had
become the world's second largest manufacturers of
cassettes marketing 217 million cassettes. This period
also saw the decline of the film music as the dominant
aesthetic form and its marker dropped from 90% to 40%
and a whole new range of forms from devotional music,
to local language songs and other kinds of markets
began to emerge.
This period of tremendous growth is however marked
clearly by its troubled relationship of with and
legality, with various practices that often straddled
both the worlds� sometimes making it difficult to
distinguish one from the other. In its initial boom
period, most of the music companies were a part of the
informal but well networked sector. They often worked
with illegally obtained components to ensure cost
effectiveness of their product. These ranged from
smuggled goods to indigenously manufactured but
unlicensed products, components and magnetic tapes.
It in this context that we can evaluate the story of
one such maverick entrepreneur who with a combination
of dynamic business skills, ruthless tactics and a
elastic idea of legality came to shaper the music
industry. In 1979 two brother Gulshan and Gopal Arora
who ran a fruit juice shop in Delhi, and were also
electronic buffs began a small studio where they
recorded Gharwali, Punjabi and Bhopjpuri songs. After
borrowing money they visited Japan, Hong Kong and
Korea to study cassette technology and the industry.
They returned to set up a factory in India to produce
magnetic tapes, and also started producing cassettes
and silicon paper and finally built a complete
manufacturing plant where they offer duplication
services to the smaller regional cassette producers.
By the late 80's T Series emerged as the clear market
leader and currently they have a set up with worth
over $ 120 million and have diversified into
manufacturing video tapes, television, VCD players,
MP3 players, washing machines and even detergents.
The elastic legality of Gulshan Kumar's world
translated itself in the following manner:
∑ Using a provision in the fair use
clause of the Indian Copyright Act which allows for
version recording, T Series issued thousands of cover
versions of GCI's classic film songs, particularly
those which HMV itself found to be unfeasible to
release. T Series also changed the rues of
distribution by moving into neighborhoods shops,
grocery shops, paan waalahs, and tea shops to
literally convert the cassette into a bazaar product.
∑ T Series was also involved in straight
forward copyright infringement in the form of pirate
releases of popular hits relying on the loose
enforcement of copyright laws.
∑ Illegally obtaining film scores even
before the release of the film to ensure that their
recordings were the first to hit the market
∑ Inserting huge amounts of inferior tape
into the established brands to discredit the well
established names.
While one could easily dismiss these practices as
unscrupulous, unethical or clearly illegal activities,
we also need to keep in mind the overall impact that T
Series had on the music industry in India and cassette
culture itself. T Series created as new cassette
consuming public by focusing on various genres and
languages, which were completely ignored by HMV. HMV
had promoted Hindi at the cost of many other
languages, which it deemed to be unfeasible in
economic terms given the scale of their operations. T
Series by changing the rules of the game and
introducing for the first time the idea of networked
production, where it would offer its duplication
services to a number of the small players revived
smaller traditions of music. Finally the reduction of
the price of the cassette by T Series created a mass
commodity.
Clearly no straightforward account of legality and
business ethics can capture the dynamics and the
network of interests that fueled the cassette
revolution. For instance in an interview with Peter
Manuel, one of the employees of T Series stated that "
What the people say about our activities in the early
years- its is mostly true. But I tell you that back
then, the big Ghazal singers would come to us and ask
us to market pirate versions of their own cassettes,
for their own publicity, since HMV wasn't really able
to keep up with the demand". Similarly even major
players like HMV in the past dealt with the pirates.
For instance when HMV found that it could not met the
demands for one of their biggest hits, Maine Pyar
Kiya, they are reported to have entered into an
agreement with the pirates whereby the pirates would
raise their price from Rs. 11 to Rs. 13 and pay HMV
half a rupee for every unit that they sold on the
condition that HMV did not sue them or raid their
businesses. Other producers are also known to have
colluded with pirates in production and marketing so
that they can minimize their cost, the taxes payable
and royalties by hiding the extent of their sales.
The role played by piracy in the creation of a market,
in the process of creating a lock in period and also
in the reduction of price and has been clearly in
software industry and film industry. (Similarly the
price of VCD's has come down to Rs. 99, even lesser
than what the pirated copy used to be Rs. 100).
Similarly the free school street phenomenon of
Calcutta created a sub cultural consumption of large
amounts of sixties rock before these tapes were
available in the Indian markets. Without such a niche
elite public, it is highly debatable as to whether
Magnasound could have emerged in the early nineties as
the most important player in the English music
industry in India.
I would like to conclude this segment with two
ironical stories that can then lead us to the
contemporary. The first is that after its rather
chequered history with copyright law, T Series is now
one of the most aggressive enforcers of their
copyright in India. The have a battery of
professionals, generally retired police officials who
monitor copyright and trademark infringement cases.
The second story is an extract from Peter Manuel�s
conclusion to the history of cassette cultures in
India. After providing us with a fascinating look at
the ad hoc world of innovation based on very porous
ideas of legality, Manuel speculates on the possible
developments in the future where he says " In India a
pre recorded CD costs as much as Rs. 250 or twelve
times the price of a tape. CD players themselves
anywhere between 5000 upwards, which would constitute
a fortune for most Indians/. As a result, CD's
naturally remain confined to the upper class. For the
music producer, the growth of the CD market is seen as
a possible weapon against piracy, as the CD's cannot
be duplicated (onto other CD's).
Entering the new city
We can now return to the contemporary urban landscape
where the prevailing model of piracy is precisely
through the form that was intended to guard against
piracy. With the absolute collapse of the costs of CD
writers and CD's, every computer owner is a potential
producer and redistributor. The logical transition of
the older inhabitants of the world of pirated cassette
cultures, video library owners etc. into the world of
CD's then almost appears as a natural progression. I
have outlined the two central histories that we need
to narrate to understand the present moment. The first
attempt was to problematize and contextualize the idea
of illegality vis a vis claiming a space in the city,
and the manner in which these claims challenge the
liberal premise of law, citizenship, access to
institutions of democracy. The second move was to
provide a brief history to eh emergence of cassette
cultures, and why it emerged in a context of
illegality, the central role that it plays in the
creation of a public that is not based on print medium
imagined sense of the public sphere. It also narrates
a world of innovation and discovery which treat any
monopolistic claims, be it legality or economic
participation, with a sense of irreverence. I would
now like to examine some of the ways in which a
critical dialogue around IP may take place. At the
moment there exists a rich body of the work in the US
that seeks to challenge some of the developments in IP
law. These are generally posited within literary
theory inspired critiques of the assumption of
authorship, or they argue that copyright endangers the
free flow of information within the public domain.
Implicit within this critique however is an assumption
of a vibrant public sphere, where constitutionally
guaranteed rights such as freedom of speech and
expression should dictate IP policy.
The challenge of having an inter continental dialogue
is really to push the limits of thinking through the
problem of understanding the publics which lie outside
the assumptions of the liberal public sphere; to
understand the complex spatial logic of globalization
and the unfolding of highly unequal division of labour
within the sphere of cultural production ( a bootleg
Nike t shirt surely has a very different tale to tell
as it circulates as a fake or a copy in Los Angeles
compared to the circulation in Thailand, one of the
largest hosts of the various sweatshops of the world.
To understand the difference between the cultural
politics of content and appropriation, and the world
where content may fit into the larger politics of
cultural hegemony of Hollywood, while at the same time
enabling diverse entry points into the global modern
for a range of people, ordinarily left out of the
imagination of the nationalist project of modernity.
The social of the remix in India may have little to do
with the romantic assumptions of cultural
appropriation and resignification as expressed in
Campbell v. Acuff Rose, and more to do with the impact
of the structural transformation of industry practices
and monopolies as articulated in a Sega v. Accolade.
The avenues I have suggested below offer an entry
point into understanding the challenges posed by
different media practices to an IP regime that insists
on the creation of a global regime of ownership and
control on which there is an assumed social cohesion
and a containment of all social conflict and that
there will be no dispute over the forms of property
that emerge and expand.
a. The first and most simplistic account of the
phenomenon of piracy is that of unequal access between
the developing countries and the developed countries.
The argument is that the price differential forces
people in developing countries to buy pirated goods
since they would not be able to buy the original
goods. While there s a truth in this proposition of
the price factor, the inherent problem of such an
entry point is that it relies on a model of piety (
the poor third world figure) and is fundamentally
dependent on the 'development', catching up with the
west' account of global relations. The global
contemporary is far more complex and one would have to
provide an account of the complex logic of cultural
production in the era of globalization. The pirate in
developing countries is not a figure of piety and this
account divests him of any agential role as s/he
navigates through the mediascapes of globalization
that frames his experience.
b. The second entry point emerges from writers like
Jeremy Rifkin who would argue that there is a
fundamental shift in our understanding of the logic of
production, distribution and consumption. Rifkin
argues that we live in an age of access and the
culture of the internet for instance is predicated on
a culture of networked distribution and circulation.
In this new era, there is a transition fro the idea of
the market in the older senses of the term to the idea
of networks. His account of the nature of the
networked economy would render futile for instance any
account of piety, as his account is not configured on
differential access or privilege alone. He sees the
culture of the networked economy as fundamentally
shaping the way people think about production,
distribution and collaboration. The older form of
regulation and structuring of economic transactions
will then just not work within this framework.
According to Rifkin, "The young people of the new
'protean' generation are far more comfortable
conducting business and engaging in social activity in
the worlds of electronic commerce and cyberspace, and
they adapt easily to the many stimulated worlds that
make up the cultural economy. Theirs is a world that
is more theatrical than ideological and oriented more
to a play ethos, than to a work ethos. For them,
access is already a way of life, and while property is
important, being connected is even more important. The
people of the twenty first century are likely to see
themselves as nodes in embedded networks of shared
interests as they are to perceive themselves as
autonomous agents in a Darwinian world of competitive
survival. For them, personal freedom has less to do
with the right of possession and the ability to
exclude others and more to do so with the right to be
included in webs of mutual relationships. They t are
the first generation of the Age of Access". In such an
account, copyright would emerge as a slightly archaic
mode of regulation that is culturally embedded in the
technology pf paper. This is also a world which
transforms the older worlds of legal imaginaries,
using the language of exclusive rights to generate a
world of access. The GNU GPL is a classic instance of
such a use.
c. Our third entry point is through an examination of
the intertwined histories of postcolonial nationalist
aspirations of modernity and a particular relationship
tot he public sphere. Ravi Sundaram in a Series of
articles has been theorizing the phenomenon of piracy
and illegal media cultures in the new media city.
According to Ravi Sundaram, this world of non legal
medias in a number of south Asian cities, marked by
its rather ad hoc innovativeness and its various
strategies of survival, is the world of recycled
modernity. It exists in the quotidian spaces of the
everyday and cannot be understood within the terms of
the earlier publics (the nationalist public and the
elite public sphere). Fueled by aspirations of upward
mobility, it is an account of the claims to modernity
made by a class of people, otherwise unaccounted for
by the meta narrative f the nationalist project of
modernity. These cultures of recycling do not however
exhibit any of the characteristic valor or romance of
counter publics. Beginning with the audio cassette
revolution that we examined and moving rapidly into
the worlds of computers and digital entertainment,
this world has been based on a dispersed logic of
production and consumption, and marked by is
preponderant illegality. This rearticulated entry
point into the modern is also contemporaneous with the
emergence of the global moment and this arrival of the
global via media, new forms of labour like call
centers, the software industry in India etc replace
the earlier configuration of national/ modern with the
global modern. While understanding the issue of entry
points that one makes into the modern it now becomes
critically important for us to recognize that the
shifts in registers of imagination that the global
brings upon the national/ modern configuration.
d. Our fourth entry point into understanding these
practices comes from a metaphorically rich account of
the role of networks and seepages provided by Raqs
media collective. Looking at five figures of
transgressions in the contemporary context ( the
migrant, the hacker, the pirate, the alien and the
squatter), Raqs argues that the modes through which
these transgressors of law emerge as residues in the
gigantic movement of capital. �Capital transforms
older forms of labour and ways of life into those that
are either useful for it at present, or those that
have no function and so must be made redundant. Thus
you have the paradox of a new factory, which instead
of creating new jobs often renders the people who live
around �unemployable�; A new dam, that instead of
providing irrigation, renders a million displaced, a
new highway that destroys common paths, making
movement more, not less difficult for the people and
the communities it cuts through�, and the question
posed by Raqs is how does one begin to understand what
happens to these people who fall off from official
maps, official plans and official histories.
The argument is that these people travel with the
histories of the networks that they were a part of and
are able at any point to deploy the insistent,
ubiquitous insider knowledge of today�s networked
world. They then introduce the powerful metaphor of
seepage and how it may help us to think through these
acts of transgressions. �How does this network act,
and how does it make itself known in our
consciousness? We like to think about this in terms of
Seepage. By seepage, we mean the action of many
currents of fluid material leaching on to a stable
structure, entering and spreading through it by way of
pores. Until, it becomes a part of the structure, both
in terms of its surface, and at the same time
continues to act on its core, to gradually
disaggregate its solidity. To crumble it over time
with moisture. In a wider sense, seepage can be
conceived as those acts that ooze through the pores of
the outer surfaces of structures into available pores
within the structure, and result in a weakening of the
structure itself. Initially the process is invisible,
and then it slowly starts causing mould and settles
into a disfiguration � and this produces an anxiety
about the strength and durability of the structure.
By itself seepage is not an alternative form; it even
needs the structure to become what it is � but it
creates new conditions in which structures become
fragile and are rendered difficult to sustain. It
enables the play of an alternative imagination, and so
we begin seeing faces and patterns on the wall that
change as the seepage ebbs and flows.
In a networked world, there are many acts of seepage,
some of which we have already described. They
destabilize the structure, without making any claims.
So the encroacher redefines the city, even as she
needs the city to survive. The trespasser alters the
border by crossing it, rendering it meaningless and
yet making it present everywhere � even in the heart
of the capital city � so that every citizen becomes a
suspect alien and the compact of citizenship that
sustains the state is quietly eroded. The pirate
renders impossible the difference between the
authorized and the unauthorized copy, spreading
information and culture, and devaluing intellectual
property at the same time. Seepage complicates the
norm by inducing invisible structural changes that
accumulate over time.
It is crucial to the concept of seepage that
individual acts of insubordination not be uprooted
from the original experience. They have to remain
embedded in the wider context to make any sense. And
this wider context is a networked context, a context
in which incessant movement between nodes is critical.
Porous Legalities and avenues of Participation
Finally I would like to weave another entry point
building on those which I have outlined thus far. What
seems to weave the stories of the inhabitants of the
older city with the denizens of the new city is the
umbilical cord of illegality that defines the ways
through which they create for themselves avenues of
participation. Building on the seepage metaphor of
Raqs I would like to add another trope which allows us
to understand what allows these seepages to take
place, viz. the idea of porous legalities. Porous
legalities are created through different forms and
materials, but primarily through a profound distrust
of the self narrated life of law and law enforcers.
The slum dweller with a desperate instinct for
survival has little choice but to ignore the law in
order to carry on with the rather difficult task of
surviving a hostile city, challenging the idea that it
is the natural role of law to ensure the public good.
At other times, you follow the pores created to
benefit the elite few who know how to enter into the
legal machinery in their favour, and entering these
pores use the same routes to secure yourself. In this
avenue, the idea of corruption, bribery , especially
within the police force for instance, act like a self
fulfilling prophecy which works at different levels/
hierarchies for different kinds of claims. The music
company paying the police to conduct raids also has to
deal with the policeman who will pass the information
of the raid to the pirates. A few pores exist as a
part of the structure and design of the legal order
itself. Thus the ability to produce cover versions
available in the Copyright Act becomes the basis of
the creation of a new set of media practices that in
turn create an anxiety of regulation all over again.
One could understand these porous legalities as
inevitable reproductions of social relations of power,
but social struggles, whether they constellate around
power, law or knowledge, also have an internal logic
of their own where they tend to be performative, as
they actively produce (rather than merely reproducing)
the forms of power, law or knowledge that best suit
their horizons of expectations. The tragedy would be
to examine a practice of illegality, especially around
media within its own horizons of expectations. We need
instead to uncover the various constellations of
fantasy, mobility, innovations that mark the realities
of these social worlds. Santos states for instance
that �Though for different reasons, maps, poems and
laws distort social realities, traditions or
territories, and all according to certain rules. Maps
distort reality in order to establish orientations;
poems distort reality to establish originality and
laws distort reality to establish exclusivity�.
The figures of illegality poses fundamental questions
to our neat categories of the liberal public sphere
were citizens interact through constitutionally
guaranteed rights, as the exclusive mode of
understanding the world of law and legality. The
status of these transgressors as the �not quite� and
yet �not quiet� citizens creating their own avenues of
participation in the multiple worlds of media,
modernity and globalization demands that we ask
fundamentally different questions of the relationship
between law, legality property (tangible and
intangible) and that which we call the public domain.
Bibliography
1. Alain Durand- Lasserve and Lauren Royston,
Holding their ground, (London: Earthscan, 2002)
2. Arthur J. Jacobso, The informal economy: the
other path of the law, 103 Yale L.J. 2213
3. Boaventura De Sousa Santos, Towards a new
common sense, ( New York : Routledge, 1995).
4. Carlos Osorio, A contribution to the
understanding of the llegal copying of software,
Working Paper, MIT Program on Internet and Telecoms
Convergence.
5. Christain Zlolniski, The Informal Economy in
an Advanced Industrialized Society: Mexican Immigrant
Labor in Silicon Valley, 103 Yale L.J. 2305
6. Diane Singerman, Avenues of participation:
Family politics and networks in urban quarters in
Cairo, (Princeton: Princeton Univ. press, 1997)
7. Jeremy Rifkin, The Age of Access, The New
Culture Of Hypercapitalism, Where All Of Life Is A
Paid-For Experience, (New York: Penguin 2001)
8. Jeorge Hardoy & David Braithwaite, Squatter
Citizen, (London: earthscan, 1989).
9. Mitchell Duneieir, Sidewalk, (New York:
Farrar, Straus and Giroux, 1999)
10. Peter Manuel, Cassette Culture: Popular Music and
technology in North India, (New Delhi: Oxford Univ.
press, 2001).
11. Ravi Sundaram, Recycling modernity: Pirate
electronic cultures in India, Sarai Reader 01: The
Public Domain
12. Ravi Sundaram, Beyond the Nationalist Panopticon:
the Experience of Cyberpublics in India, available at
http://amsterdam.nettime.org/Lists-Archives/nettime-l-9611/msg00018.html
13. Ravi Sundaram, Electronic Marginality Or,
Alternative Cyberfutures in the Third World,
http://www.ljudmila.org/nettime/zkp4/08.htm
14. Raqs Media Collective, X notes on Practice:
Stubborn Structures and Insistent Seepage in a
Networked World (To be published)
__________________________________
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From sunil at mahiti.org Fri Jun 25 01:23:48 2004
From: sunil at mahiti.org (Sunil Abraham)
Date: Thu, 24 Jun 2004 19:53:48 +0000
Subject: [Commons-Law] Dealing with Pirated VCD's/DVD's
In-Reply-To: <20040623112245.47989.qmail@web51605.mail.yahoo.com>
References: <20040623112245.47989.qmail@web51605.mail.yahoo.com>
Message-ID: <1088106828.592.25.camel@box>
Dear Rajlakshmi Nesargi,
Pirated books, pirated seeds, pirated music, pirated movies, pirated
HIV/AIDS medicine, pirated software, pirated clothes and pirated
everything. This is a non-negotiable part of your life if you live in
the developing world. You should see the pirated CDs arranged in
alphabetic order in all super malls in Malaysia. If the law ends up
criminalising the entire nation - shouldn't you be considering greater
legal reform rather than greater enforcement.
Thanks,
ಸುನೀಲ್
--
Sunil Abraham, sunil at mahiti.org http://www.mahiti.org
314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA
Ph/Fax: +91 80 51150580. Mobile: +91 80 36701931
Currently on sabbatical with APDIP/UNDP
As FOSS Consultant - International Open Source Network
Wisma UN, Block C Komplex Pejabat Damansara.
Jalan Dungun, Damansara Heights. 50490 Kuala Lumpur.
P. O. Box 12544, 50782, Kuala Lumpur, Malaysia
Tel: (60) 3-2095-9122, Fax: (60) 3-2095-2087
sunil at apdip.net http://www.iosn.net http://www.apdip.net
From patrice at xs4all.nl Fri Jun 25 04:02:40 2004
From: patrice at xs4all.nl (Patrice Riemens)
Date: Fri, 25 Jun 2004 00:32:40 +0200
Subject: [Commons-Law] Dealing with Pirated VCD's/DVD's
In-Reply-To: <1088106828.592.25.camel@box>
References: <20040623112245.47989.qmail@web51605.mail.yahoo.com>
<1088106828.592.25.camel@box>
Message-ID: <20040624223240.GC23938@xs4all.nl>
On Thu, Jun 24, 2004 at 07:53:48PM +0000, Sunil Abraham wrote:
> Dear Rajlakshmi Nesargi,
>
> Pirated books, pirated seeds, pirated music, pirated movies, pirated
> HIV/AIDS medicine, pirated software, pirated clothes and pirated
> everything. This is a non-negotiable part of your life if you live in
> the developing world. You should see the pirated CDs arranged in
> alphabetic order in all super malls in Malaysia. If the law ends up
> criminalising the entire nation - shouldn't you be considering greater
> legal reform rather than greater enforcement.
>
> Thanks,
When in "Kay El" (Kuala Lumpur) one and half year ago, I witnessed a
"clamp down" on illegal software an DVDs taking place. It was hilarious.
As soon as the 'plaincloth' (ie immediately recognizable) policemen
entered the market area, they were surrounded by talkative youths slowing
down their advance. Meanwhile all mini-stalls instantly turned into
trollies that were speedily wheeled into adjoining bylanes and immediately
vanished behind storages, cupboards whatever. The street was cleared in no
time, that is the portion of the market through which the policemen were
presently proceeding. As they advanced, the trollies were wheeled out
again behind their back, while the scene above was played out ahead of
them. All this happened in plain sight of everyone. Transactions that had
been halted by the incident (leaving the unaware tourist-buyers puzzled
and sure to have just been ripped of) were immediately resumed, with the
seller and the goods reappearing out of nowhere..A great show. The
Malaysian authorities pleaded they were doing "all in their might" to stop
piracy, but they simply could not cope... Everybody knowing Dr Mahatir Bin
Muhamad of course knew better...
cheers from Pula,
patrizio & Diiiinooos!
(in Pula, TransHackMeeting)
From jeebesh at sarai.net Fri Jun 25 20:08:56 2004
From: jeebesh at sarai.net (Jeebesh Bagchi)
Date: Fri, 25 Jun 2004 20:08:56 +0530
Subject: [Commons-Law] A biography from tees hazari
Message-ID: <40DC3900.3010403@sarai.net>
From: Chander Nigam
Email : chandernigam at rediffmail.com
Date: 24 June, 2004
Dear all
My research under Sarai Independent fellowship is going well. For the last 2 months I am interviewing and talking to people of different walks in Tis Hazaari and getting some interesting stories. This mail is basically a brief biography of a female criminal lawyer. I hope you will enjoy going through this and bombarding your suggestions and questions.
If you go to criminal side, Tis Hazari and ask for any senior lady advocate to any person, most probably you will get the name Urmila Gupta. She is practicing law almost for the last 30 years. Moreover, she is the 2nd lady advocate, who joined the practice of criminal cases. When I entered into her chamber, she was busy in giving dictation to her staff. After initial exchange when I requested for an interview with her, she became ready to talk with me. She talked at length about her professional career and experience.
Can you imagine a Sanskrit graduate turning to a Criminal Lawyer? Yes, she is one. She says, “Neither my father side nor in-laws side had any lawyer prior to me. I was the first person from either side who joined law. And tell you, no body in my family was willing to let me choose this profession.” Actually her story goes something like this. As a daughter of middle class family she passed higher secondary from I. P. School in 1969 with distinction in all the subjects. Her father was a business man, so he did not have much to guide her, what to pursue after school. Her brother was a TGT in a government school, who used to teach Sanskrit. This was he, who persuaded her in all possible ways to opt Sanskrit in graduation. She had no option but to go with her suggestion. And thus she landed up in the prestigious Inderprastha College, DU. There again she performed well and came out with a 1st class in Sanskrit. Once again her career became a question in the family. Her brother was thinking of get her admitted in B. Ed, which she was least interested in. In fact, she says, “Since my childhood I was fascinated about law, so that I was not in favour of making any compromise then. Finally after so many rounds of heated exchange I managed to get admission in my dream project, i.e., LL. B. in 1972. In fact those days there was no entrance test for getting into LL. B., but People were serious about their studies. After spending three consecutive years in Campus Law Center, Delhi University I came out with a professional degree. And you know, you have come to interview me only because of that ha ha ha … (she laughs). She says that there were very few females those days, interested in Law, at least in my faculty the number of girls were very less. She got first division in LL. B. also.
This is her 29th year of her Bar Council membership. She joined the Bar in July 1975. She very proudly says, “You know, Maine use sail love marriage kid this. And us jasmine I love marriage karma kopi asana cam naming than. Ajar to hard gnat me hot hay aisi shadiayan. Can you imagine a SHUDDHA BANIA marrying with a MUSLIM in 1975? But we did …….” I could not hide the resemblance of marriage of mine with her, “madam, maine bhi love marriage ki hai”. This discloser brought us slightly closer.
Now whatever Urmila Gupta speaks is more interesting and hurting also in some amount. As I earlier mentioned that she was the second lady advocate in Tis Hazari who joined criminal practice. Ms. Mahender Chaudhary was the first, who expired a few years back. She started her days in Tis Hiszaari working as a junior of Advocate Mr. B. B. Sood. Advocate Sood was a reputed Civil Lawyer those days. He has a chamber in the Civil Side and a seat also in front of Treasury building. Mr. Sood’s practice was very good, his chamber was full of case-files, but all were of civil matters, which Urmila was least interested. “Knowing my interest he offered me his seat and said that I am free to entertain my clients from the seat”, says she. After a week she realized that the attitude of male in general was very terrible. People used to roam around; sometimes they used to spend hours on her seat without any reason. Moreover, some male advocates also used to treat her like a women, who is there only to please their eyes. “And I cannot tell you, how I managed those seven days on that seat. I felt I was like a tongue stuck between 32 teeth. I became very disturbed”, says she. She shared her problem and dilemma with a very close friend of her Kamna Prasad, who was spending her days within her house after having the LL.B degree. In the course of problem sharing she offered her to start practice jointly from the seat, which she was given by her senior. “Fortunately Kamna accepted my offer and we started practice together”, says Urmila. But that settlement also did not help the ladies duo in getting cordial place in the patriarchal world of advocates. Being new in the profession the Ladies had very few cases. But one bail, which Urmila managed to get in a case under section 307 IPC (attempt to murder), gave a kind of work satisfaction and immediate relief for the ladies duo in the mail dominated advocates’ world. She says, “Now they started whispering about our success and gradually their attitude also started changing towards us, they started discussing cases with us. After some time clients started approaching us too. It is amazing that in spite of not being in sound position in some of our cases in the beginning we got bail. Influencing by our performance and ability the advocates started asking us to appear before the court in bail matters on behalf of them. In number of bail matters we got relief. And that performance built my confidence.” She says, “ho sakta hai tab magistrates ne hume encourage karne ke liye relief diye hon, kyonki tab criminal cases me females jati hi nahin thi, lekin kewal magistrates ke liberal hone se to humari practice chalti nahin”. In fact they were laboring hard also.
They started coming to courts in vacations also. Those days very few lawyers used to come in vacations. Even today when the number of lawyers has increased tremendously the income of those suddenly becomes high, who come in vacations, therefore, and it is not difficult to assume the income of vacation lawyers those days. She says, “Sometimes we used to earn Rs. 500- 600 in a day. Remember the value of 5-600 in 1970’s… And In fact after earning 5-600 in a day we were thinking ourselves not less than a queen. If I exclude the ill behavior of male counterparts in the beginning I would say practicing the criminal law is really a fantastic experience
Her professional association with Kamna Prasad got an end in 1980 with Kamna’s marriage. Her in-laws were not in favor of her practicing law. Even her husband was not keen of her profession. There was hardly any option for her except accepting the dictates of husbands and SAS-SASUR. Actually Urmila remained in touch with her for some time after her marriage but she had to disconnect her relationship with Kamna because her in-laws did not want it to continue. In fact this was not the problem of 1980’s Kamna but several Kamnas and others have to surrender before their families even today. First thing is that the parents do not give permission to the girls to opt a career in law and in case they manage to get permission after much hue and cry in their families, many of them have to leave the profession after marriage. “If I am a successful lawyer today then it is only because of my husband’s support. Because our’s is a love marriage. Generally the spouses in this kind of marriage understand each other’s aspirations and to some extent they support and help each other in pulling off those aspirations also”, says she. She further suggests, “why not you study the matrimonial life of female lawyers? If the constituency appears you vast, then limit yourself only to Tis Hazaari or to those only who are regular to the Ladies Bar room of Criminal side. Quite often I see you in the bar room, you must be familiar with most of them. So you can do it. Yes, you do it. It would be helpful in general and to our folk particular.”
Comparing the state of affairs in Tis Hazari of 2004 to Tis Hazaari of 1980’s she opines that it is deteriorated. According to her only Delhi wallahs were in the profession those days and the reputation of the profession was also good. Advocates used to get handsome fees. Speaking about the degradation of profession she says, “But today Biharis have defamed the profession. Like any other profession they are coming into this profession also in large numbers. If you walk around the courts you will find every second person is a Bihari Advocate. If we ask Rs. 11000 as fees for a work, they become ready to do the same work on a mere fee of 500 or 1000. Even some of them offer their service for 200-300. This is not good for our profession.” My interruption firstly, that the number of Bihari advocates are not as huge as she spoke and secondly, if somebody offering service on meager fee then it is good for the poor litigants incensed her a bit. “I am not saying that all advocates are from Bihar and all are ready to work on lesser fees. It can not be and it should not be. But Biharis are practicing in Delhi in large numbers. And if you think offering service on 500-600 rupees is a help for poor then your perception is wrong. Poor litigants can move to Legal Aid Cell, they can get free lawyers form there. If they are taking money from the poor, they are cheating them. In fact these are the lawyers who are defaming our profession. They are actually not lawyers but a gang of touts. That’s why I am saying that the reputation of the profession has decreased.”
Recollecting the notorious emergency of Mrs. Indira Gandhi in 1975 she says, “The lawyer community in Delhi was also on the hit list of Sanjay Gandhi. He was working like a prime minister de-facto. The general mass of Delhi was frightened by his terror. All those centers of meetings and discussions became the target of Sanjay Gandhi, which seemed to him possible threat to Ms. Gandhi. Our campus was also targeted.” She tries to recall the exact date when the chambers were demolished in Tis Hazaari, but she can not. She says that without any notice Sanjay Gandhi’s bulldozer ran over the chambers, which were legally allotted by the bar. Within an hour the chambers of civil and criminal sides transformed into debris. All the furniture and case files of advocates transformed into garbage. “That day is known as the black day in the history of Tis Hazaari”, says she. Next time the fresh allotments were made only after the change of guard in the center. In 1977 the bar made fresh allotments of CHABUTRAS. There were total 1000 chabutras in civil and criminal side, 500 each. From 1977 to 1984 advocates did their practice from the chabutras. It was only in 1984 that the bar gave permission for constructing chambers. But today the number of chambers in Tis Hazaari is more than double of the chabutras. In fact, she says, “gradually, people started encroaching the land and constructing chambers. Although the structures made in the name of chambers are illegal but sooner or later they were regularized by the Delhi Bar Association (DBA).” One chabutra was allotted to her also, which she transformed into chamber in 1984. And from ’84 onwards she is working form there only.
Talking about the nature of cases she says that comparatively the number of matrimonial cases has increased tremendously. And she explains section 498A of IPC (related to dowry, harassment of women by her in laws and husband), the key factor of increasing number of matrimonial cases. Section 498 A was inserted in the IPC in 1983. “Actually before this section, women had hardly any way to resolve their matrimonial troubles; they were forced to accept all kinds of ill treatments and exploitation by in-laws. So through the section 498A for the first time Indian women got legal voice against matrimonial disturbances and troubles”, says she. But at the same time she admits that the misuse of this section has become a fashion today, which is alarming.
Talking about the functioning and the work culture of the courts she says, “Corruption, fraud, dishonesty, treachery all are the part of courts’ functioning. You already are practicing in Tis Hazaari you already have experienced the court staff. So it is worthless to talk about the courts’ work culture. If you are able to bribe every desk and table, no body can stop your work to be done.”
However she also feels that being a female one has to face a lot of difficulties in the profession. A female has no liberty to go home late or attend parties and all like her mail counterpart. She is bound to perform certain household responsibility. She has to look after her children, attend her husband and in-laws in the house while if she is a junior advocate she has to obey the orders and dictates of her senior also in the courts. That is what she feels being a female lawyer.
Finally she speaks about her family. Her husband is a businessman. She has two children. Daughter Samita, a fashion designer married last year. Although Urmila Gupta herself went into love marriage but she had to search a groom for Samita. Her son Samit has written the final year exams, and is waiting for a degree of English Graduate from Zakir Husain College.
“Though Samit’s father is an established businessman, he is trying to go with me, he has given the entrance examination for LL.B in DU”, she says.
My next posting, again a biography of a former employee of Delhi Bar Association will followed very soon. For the time being I am waiting for you suggestions and comments.
cheers
chander
From cindubkrishnan at yahoo.co.in Mon Jun 28 15:35:18 2004
From: cindubkrishnan at yahoo.co.in (=?iso-8859-1?q?cindu=20balakrishnan?=)
Date: Mon, 28 Jun 2004 11:05:18 +0100 (BST)
Subject: [Commons-Law] POSTING-2
Message-ID: <20040628100518.45460.qmail@web8307.mail.in.yahoo.com>
Dear All,
The first chapter of my research work on SOFTWARE PATENTING:CONCEPTUAL ISSUES comprised of the evolution of patent system and the history of software patents.In this posting I will be discussing the first part of the chapter.
................................................................................................................
Evolution of Patent System
Why We Study History
The computer empowers a programmer to capture a creative thought in software and then watch as the computer makes the creation comes alive.All of the human effort here is essentially mental.The end result may be essentially intagible.In this sense software is very close to the pure thought which has long been regarded as something that no one can own as exclusive right.Thus the software patents have linked to the history of patents eventhough,the computers were not developed until the 20th century.
Concept of Property
Property is the dejure right to exclude others from use of its subject matter1.Under the common law only tangible stuff was the subject of property that is one can exclude others from using his stuff but had no rights to interfere with the use of other people's stuff.Thus the sub. matter and possessory interest of common law property were congruent and there were no exclusive rights associated with intangible ideas.Everyone had the right to possess and practice their ideas.No one had the negative right to exclude use by others2.
Modern intellectual property rewards the creative fruits of intellectual skill with a separate property status.There are two fundamental juridical premises applicable to the I.P.
1.Nothing may be removed from the public domain that is an inventor/author may get a property interest in what he contributes to the public domain.This is generally satisfied by the novelty requirement.
2.Preemption of scientific principle or abstract idea is prohibited that is all scientific principle and abstract ideas remain available to the public.
Rene Descarte's division of reality in to the subjective(mental, intangible) and objective( physical/tangible) realms3 provide a useful context for examining I.P.whose sub. matter is abstract but whose possessory interest applies only to others stuff.
Patents
Patents provide an I.P.R.,that is,a patentee may exclude others from making or using embodiments4(objective realm) of an inventive conception(subjective realm).That is sub. of patent protection is an abstract inventive idea.The patentee's common law right to possess and practice the invention with his own stuff remains intact,subject to any prior patent of another.Thus patent provides only a negative right to interfere with use of other's stuff when embodying a patented invention.They provide no possessory interest or right over any dis embodied conception5.
History of Patents
Patents can be traced as far back as the 3rd century B.C.In that period,the Greek historian Phylarchos tells that the Greek city of Sybaris granted a patent for an article of cuisine,presumably a recipe6.In this early context,the patent was a form of monopoly.This idea of granting monopoly by the sovereign or city-state had been carried over in to the middle ages.
In order to raise England's commerce and industry in the 10th century,the Crown of England established a reward7 to encourage subjects to travel outside the realm and bring back goods that England did not have.Granting the title of " thane"may have worked in the year 1100s but in the 1300s, a need of better incentive was felt.Thus in 1326 ,the Crown established a new policy to encourage importation of new arts to England by issuing Letters Patent (open lerrers)8.They were granted primarily to those who found technology or goods abroad and brought them back to England.The patent grantee need not be the original inventor but only the first importer9.It appears that the basic theory of the protection of the intellectual labour of the man has not been recognised.This is evident from the grants issued at that time.10.
Dark sides of the letters patents were price hike and abuse of monopolies.The public protests against the abusive monopolies resulted in the Case of Monopolies11 and finally in the Statute of Monopolies of 1624 It became the first patent statute.The foundations of the modern patent system were laid down in Section 6.It was the codification of the common law practice of the patent system in the 17th century.Though the test of novelty was introduced,12 since it was not defined in the statute for a considerable period of time, a person who brings the invention was also given the monopoly right.
Thus it is clear that in olden days neither disclosure of invention to public nor the protection of the intellectual skill was the consideration or basis of the patent system.Industrial growth was the immediate object of granting monopoly.
---------------------------------------------------------------------------------------------------------
1.The Encyclopaedia of Philosophy,6 Property 491(1972)
2.See, Gaylor v Wilder 51U.S.(10 How.) 477(1850)
3.The Cartesian division
4.embodiment is an objective manifestation, that is to invest with a physical body.See,WEBSTER'S NEW INT'L DICTIONARY 739(3rd ed.1993)
5.for example,In re Schrader, 22F.3d290,293-959(Fed.Cir.1994)process is patentable only if the series of steps transform or manipulate data or signals representing or constituting physical activity or objects but in Gottschalk v Benson ,409 U.S.63 (1972) The contrary can be seen.See Le Roy v Tatham 55U.S.156 ,175 (1852)limitation of patent to a useful application of principle or algorithm
Rubber-Tip Pencil Co. v Howard 87U.S.498,507 (1874) (" An idea of itself is not patentable, but new device by which it may be made practically useful is").
6. E.P.Lipscomb, 1 Lipscomb's Walker on Patents1.1 at (3rd ed.1984)
7.the title of thane to any one who made three trading voyages abroad.
P.J.Federico,"Origin and Early History of Patents",18 J.of Patent Off. Soc'y No:7 at 19,20(July 1936)
8.see, Blackstone,Commentaries on the Law of England,Book ll,chap.21,s.11,p.346
9.see,E.Wyndham Hulme, "The History of the Patent System under the Prerogative and at Common Law-A Sequel", 16 L.Q.R.44,55 1900
10.E.Wyndham Hulme,"The History of the Patent System under the Prerogative and at the Common Law",12 L.Q.R.14(1896)
11.Darcy v Allein (1 Abott Patent Cases1602)
12. To obtain the privilege the invention must be 'a new manner of manufacture" and the patentee must be the" true and first inventor'.
Yahoo! India Matrimony: Find your partner online.
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From cindubkrishnan at yahoo.co.in Mon Jun 28 15:37:07 2004
From: cindubkrishnan at yahoo.co.in (=?iso-8859-1?q?cindu=20balakrishnan?=)
Date: Mon, 28 Jun 2004 11:07:07 +0100 (BST)
Subject: [Commons-Law] POSTING-2
Message-ID: <20040628100707.45811.qmail@web8307.mail.in.yahoo.com>
Dear All,
The first chapter of my research work on SOFTWARE PATENTING:CONCEPTUAL ISSUES comprised of the evolution of patent system and the history of software patents.In this posting I will be discussing the first part of the chapter.
................................................................................................................
Evolution of Patent System
Why We Study History
The computer empowers a programmer to capture a creative thought in software and then watch as the computer makes the creation comes alive.All of the human effort here is essentially mental.The end result may be essentially intagible.In this sense software is very close to the pure thought which has long been regarded as something that no one can own as exclusive right.Thus the software patents have linked to the history of patents eventhough,the computers were not developed until the 20th century.
Concept of Property
Property is the dejure right to exclude others from use of its subject matter1.Under the common law only tangible stuff was the subject of property that is one can exclude others from using his stuff but had no rights to interfere with the use of other people's stuff.Thus the sub. matter and possessory interest of common law property were congruent and there were no exclusive rights associated with intangible ideas.Everyone had the right to possess and practice their ideas.No one had the negative right to exclude use by others2.
Modern intellectual property rewards the creative fruits of intellectual skill with a separate property status.There are two fundamental juridical premises applicable to the I.P.
1.Nothing may be removed from the public domain that is an inventor/author may get a property interest in what he contributes to the public domain.This is generally satisfied by the novelty requirement.
2.Preemption of scientific principle or abstract idea is prohibited that is all scientific principle and abstract ideas remain available to the public.
Rene Descarte's division of reality in to the subjective(mental, intangible) and objective( physical/tangible) realms3 provide a useful context for examining I.P.whose sub. matter is abstract but whose possessory interest applies only to others stuff.
Patents
Patents provide an I.P.R.,that is,a patentee may exclude others from making or using embodiments4(objective realm) of an inventive conception(subjective realm).That is sub. of patent protection is an abstract inventive idea.The patentee's common law right to possess and practice the invention with his own stuff remains intact,subject to any prior patent of another.Thus patent provides only a negative right to interfere with use of other's stuff when embodying a patented invention.They provide no possessory interest or right over any dis embodied conception5.
History of Patents
Patents can be traced as far back as the 3rd century B.C.In that period,the Greek historian Phylarchos tells that the Greek city of Sybaris granted a patent for an article of cuisine,presumably a recipe6.In this early context,the patent was a form of monopoly.This idea of granting monopoly by the sovereign or city-state had been carried over in to the middle ages.
In order to raise England's commerce and industry in the 10th century,the Crown of England established a reward7 to encourage subjects to travel outside the realm and bring back goods that England did not have.Granting the title of " thane"may have worked in the year 1100s but in the 1300s, a need of better incentive was felt.Thus in 1326 ,the Crown established a new policy to encourage importation of new arts to England by issuing Letters Patent (open lerrers)8.They were granted primarily to those who found technology or goods abroad and brought them back to England.The patent grantee need not be the original inventor but only the first importer9.It appears that the basic theory of the protection of the intellectual labour of the man has not been recognised.This is evident from the grants issued at that time.10.
Dark sides of the letters patents were price hike and abuse of monopolies.The public protests against the abusive monopolies resulted in the Case of Monopolies11 and finally in the Statute of Monopolies of 1624 It became the first patent statute.The foundations of the modern patent system were laid down in Section 6.It was the codification of the common law practice of the patent system in the 17th century.Though the test of novelty was introduced,12 since it was not defined in the statute for a considerable period of time, a person who brings the invention was also given the monopoly right.
Thus it is clear that in olden days neither disclosure of invention to public nor the protection of the intellectual skill was the consideration or basis of the patent system.Industrial growth was the immediate object of granting monopoly.
---------------------------------------------------------------------------------------------------------
1.The Encyclopaedia of Philosophy,6 Property 491(1972)
2.See, Gaylor v Wilder 51U.S.(10 How.) 477(1850)
3.The Cartesian division
4.embodiment is an objective manifestation, that is to invest with a physical body.See,WEBSTER'S NEW INT'L DICTIONARY 739(3rd ed.1993)
5.for example,In re Schrader, 22F.3d290,293-959(Fed.Cir.1994)process is patentable only if the series of steps transform or manipulate data or signals representing or constituting physical activity or objects but in Gottschalk v Benson ,409 U.S.63 (1972) The contrary can be seen.See Le Roy v Tatham 55U.S.156 ,175 (1852)limitation of patent to a useful application of principle or algorithm
Rubber-Tip Pencil Co. v Howard 87U.S.498,507 (1874) (" An idea of itself is not patentable, but new device by which it may be made practically useful is").
6. E.P.Lipscomb, 1 Lipscomb's Walker on Patents1.1 at (3rd ed.1984)
7.the title of thane to any one who made three trading voyages abroad.
P.J.Federico,"Origin and Early History of Patents",18 J.of Patent Off. Soc'y No:7 at 19,20(July 1936)
8.see, Blackstone,Commentaries on the Law of England,Book ll,chap.21,s.11,p.346
9.see,E.Wyndham Hulme, "The History of the Patent System under the Prerogative and at Common Law-A Sequel", 16 L.Q.R.44,55 1900
10.E.Wyndham Hulme,"The History of the Patent System under the Prerogative and at the Common Law",12 L.Q.R.14(1896)
11.Darcy v Allein (1 Abott Patent Cases1602)
12. To obtain the privilege the invention must be 'a new manner of manufacture" and the patentee must be the" true and first inventor'.
--------------------------------------------------------------------------------------------------------
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From cindubkrishnan at yahoo.co.in Mon Jun 28 15:41:02 2004
From: cindubkrishnan at yahoo.co.in (=?iso-8859-1?q?cindu=20balakrishnan?=)
Date: Mon, 28 Jun 2004 11:11:02 +0100 (BST)
Subject: [Commons-Law] POSTING-2
Message-ID: <20040628101102.38849.qmail@web8304.mail.in.yahoo.com>
Dear All,
The first chapter of my research work on SOFTWARE PATENTING:CONCEPTUAL ISSUES comprised of the evolution of patent system and the history of software patents.In this posting I will be discussing the first part of the chapter.
................................................................................................................
Evolution of Patent System
Why We Study History
The computer empowers a programmer to capture a creative thought in software and then watch as the computer makes the creation comes alive.All of the human effort here is essentially mental.The end result may be essentially intagible.In this sense software is very close to the pure thought which has long been regarded as something that no one can own as exclusive right.Thus the software patents have linked to the history of patents eventhough,the computers were not developed until the 20th century.
Concept of Property
Property is the dejure right to exclude others from use of its subject matter1.Under the common law only tangible stuff was the subject of property that is one can exclude others from using his stuff but had no rights to interfere with the use of other people's stuff.Thus the sub. matter and possessory interest of common law property were congruent and there were no exclusive rights associated with intangible ideas.Everyone had the right to possess and practice their ideas.No one had the negative right to exclude use by others2.
Modern intellectual property rewards the creative fruits of intellectual skill with a separate property status.There are two fundamental juridical premises applicable to the I.P.
1.Nothing may be removed from the public domain that is an inventor/author may get a property interest in what he contributes to the public domain.This is generally satisfied by the novelty requirement.
2.Preemption of scientific principle or abstract idea is prohibited that is all scientific principle and abstract ideas remain available to the public.
Rene Descarte's division of reality in to the subjective(mental, intangible) and objective( physical/tangible) realms3 provide a useful context for examining I.P.whose sub. matter is abstract but whose possessory interest applies only to others stuff.
Patents
Patents provide an I.P.R.,that is,a patentee may exclude others from making or using embodiments4(objective realm) of an inventive conception(subjective realm).That is sub. of patent protection is an abstract inventive idea.The patentee's common law right to possess and practice the invention with his own stuff remains intact,subject to any prior patent of another.Thus patent provides only a negative right to interfere with use of other's stuff when embodying a patented invention.They provide no possessory interest or right over any dis embodied conception5.
History of Patents
Patents can be traced as far back as the 3rd century B.C.In that period,the Greek historian Phylarchos tells that the Greek city of Sybaris granted a patent for an article of cuisine,presumably a recipe6.In this early context,the patent was a form of monopoly.This idea of granting monopoly by the sovereign or city-state had been carried over in to the middle ages.
In order to raise England's commerce and industry in the 10th century,the Crown of England established a reward7 to encourage subjects to travel outside the realm and bring back goods that England did not have.Granting the title of " thane"may have worked in the year 1100s but in the 1300s, a need of better incentive was felt.Thus in 1326 ,the Crown established a new policy to encourage importation of new arts to England by issuing Letters Patent (open lerrers)8.They were granted primarily to those who found technology or goods abroad and brought them back to England.The patent grantee need not be the original inventor but only the first importer9.It appears that the basic theory of the protection of the intellectual labour of the man has not been recognised.This is evident from the grants issued at that time.10.
Dark sides of the letters patents were price hike and abuse of monopolies.The public protests against the abusive monopolies resulted in the Case of Monopolies11 and finally in the Statute of Monopolies of 1624 It became the first patent statute.The foundations of the modern patent system were laid down in Section 6.It was the codification of the common law practice of the patent system in the 17th century.Though the test of novelty was introduced,12 since it was not defined in the statute for a considerable period of time, a person who brings the invention was also given the monopoly right.
Thus it is clear that in olden days neither disclosure of invention to public nor the protection of the intellectual skill was the consideration or basis of the patent system.Industrial growth was the immediate object of granting monopoly.
---------------------------------------------------------------------------------------------------------
1.The Encyclopaedia of Philosophy,6 Property 491(1972)
2.See, Gaylor v Wilder 51U.S.(10 How.) 477(1850)
3.The Cartesian division
4.embodiment is an objective manifestation, that is to invest with a physical body.See,WEBSTER'S NEW INT'L DICTIONARY 739(3rd ed.1993)
5.for example,In re Schrader, 22F.3d290,293-959(Fed.Cir.1994)process is patentable only if the series of steps transform or manipulate data or signals representing or constituting physical activity or objects but in Gottschalk v Benson ,409 U.S.63 (1972) The contrary can be seen.See Le Roy v Tatham 55U.S.156 ,175 (1852)limitation of patent to a useful application of principle or algorithm
Rubber-Tip Pencil Co. v Howard 87U.S.498,507 (1874) (" An idea of itself is not patentable, but new device by which it may be made practically useful is").
6. E.P.Lipscomb, 1 Lipscomb's Walker on Patents1.1 at (3rd ed.1984)
7.the title of thane to any one who made three trading voyages abroad.
P.J.Federico,"Origin and Early History of Patents",18 J.of Patent Off. Soc'y No:7 at 19,20(July 1936)
8.see, Blackstone,Commentaries on the Law of England,Book ll,chap.21,s.11,p.346
9.see,E.Wyndham Hulme, "The History of the Patent System under the Prerogative and at Common Law-A Sequel", 16 L.Q.R.44,55 1900
10.E.Wyndham Hulme,"The History of the Patent System under the Prerogative and at the Common Law",12 L.Q.R.14(1896)
11.Darcy v Allein (1 Abott Patent Cases1602)
12. To obtain the privilege the invention must be 'a new manner of manufacture" and the patentee must be the" true and first inventor'.
--------------------------------------------------------------------------------------------------------
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From cindubkrishnan at yahoo.co.in Mon Jun 28 17:50:16 2004
From: cindubkrishnan at yahoo.co.in (=?iso-8859-1?q?cindu=20balakrishnan?=)
Date: Mon, 28 Jun 2004 13:20:16 +0100 (BST)
Subject: [Commons-Law] Research Proposal(POSTING-1)
Message-ID: <20040628122016.79298.qmail@web8310.mail.in.yahoo.com>
Dear all,
I am sending this final draft proposal for July-August workshop as directed by Mr.Sudhir and Ms.Rajlakshmi. My focus is on the conceptual issues in the software patenting.Feed back,comments and criticisms are welcome.
Thank you
Cindu
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From tarundua at linux-delhi.org Mon Jun 28 18:23:41 2004
From: tarundua at linux-delhi.org (Tarun Dua)
Date: Mon, 28 Jun 2004 18:23:41 +0530
Subject: [Commons-Law] Research Proposal(POSTING-1)
In-Reply-To: <20040628122016.79298.qmail@web8310.mail.in.yahoo.com>
References: <20040628122016.79298.qmail@web8310.mail.in.yahoo.com>
Message-ID: <1088427221.3150.28.camel@tarund>
On Mon, 2004-06-28 at 17:50, cindu balakrishnan wrote:
> Dear all, I am sending this final draft proposal for July-August
> workshop as directed by Mr.Sudhir and Ms.Rajlakshmi. My focus is on
> the conceptual issues in the software patenting.Feed back,comments and
> criticisms are welcome. Thank you Cindu
Did you talk to a single developer of software.
Patents when applied to software is a stupid idea.
Maybe you should send your proposal as inline plain text(i.e. not as attachment)
to ilugd at lists.linux-delhi.org for further input on the issue from the free software developers.
-Tarun
From cindubkrishnan at yahoo.co.in Wed Jun 30 11:15:27 2004
From: cindubkrishnan at yahoo.co.in (=?iso-8859-1?q?cindu=20balakrishnan?=)
Date: Wed, 30 Jun 2004 06:45:27 +0100 (BST)
Subject: [Commons-Law] POSTING-3
Message-ID: <20040630054527.2215.qmail@web8302.mail.in.yahoo.com>
Dear all,
In this posting I will be dealing with the history of software patent,which is closely connected with the history of patent law in the U.S.
---------------------------------------------------------------------------------------------------------
HISTORY OF SOFTWARE PATENTS
The U.S.Govt. began operation under the constitution on March 4,1789.The constitution gave Congress the power to promote science and useful arts.The first patent Act was passed in 1790.Under the Act patent can be issued for a period not exceeding 14 years,to any petitioner that " hath...invented or discovered any useful art,manufacture or device or any improvement therein not before known or used.''1 The
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From cindubkrishnan at yahoo.co.in Wed Jun 30 15:17:24 2004
From: cindubkrishnan at yahoo.co.in (=?iso-8859-1?q?cindu=20balakrishnan?=)
Date: Wed, 30 Jun 2004 10:47:24 +0100 (BST)
Subject: [Commons-Law] POSTING-3
Message-ID: <20040630094724.9416.qmail@web8308.mail.in.yahoo.com>
Dear all,
In this posting I will be dealing with the history of software patent,which is closely connected with the history of patent law in the U.S.
---------------------------------------------------------------------------------------------------------
HISTORY OF SOFTWARE PATENTS
The U.S.Govt. began operation under the constitution on March 4,1789.The constitution gave Congress the power to promote science and useful arts.The first patent Act was passed in 1790.Under the Act patent can be issued for a period not exceeding 14 years,to any petitioner that " hath...invented or discovered any useful art,manufacture or device or any improvement therein not before known or used.''1 The applicant had to submit a written specification under the Act.Later the patent ACT 1793 changed the patent system from an examination system to registration system.A patent was issued on the application as a simple clerical act.This registration system did not work and was replaced in 1836 again with an examination system2.
Roughly 10000 patents were granted under the 1793 Act.,which was replaced in 1836.3.Although it would still be many years before the invention of the programmable digital computer,there is evidence from this time that the software patent was about to emerge.In 1837 Samuel Morse applied for a patent on the telegraph.4.Morse claim(5) is interesting from a software patent standpoint.There is little difference between Morse's claimed telegraphic code and modern computer machine code5
1966 Presidential Commission on Patent System recommended that patents on computer programs should be permitted.The principal objections are that the patent office cannot classify software effectively and copyright protection available for software is adequate.In 1976 Congress created a National Commission on New Technological Uses of Copyrighted works (CONTU) to evaluate adequacy of copyright law regarding computer based information systems and photocopying technology6.
Software sub-committee consider the hybrid form of protection to the computer program7.Such hybrid proposals generally combine elements of patent and copyright.The committee rejected hybrid forms of protection by stating that any form of protection other than copyright would restrict society's access to information8.
The Committee articulated one key difference between copyright protection and patent protection.
" copy right law gives moderate protection to the original writings of authors for an extented period of time without regard to the quality of the work.Patent law on the other hand , gives stronger protection to certain discoveries of inventors for a much shorter period of time if and only if the Fed. Govt.is satisfied that the work is useful.novel and non-obvious to those familier with the related technology.Very broadly the C.R. is designed to protect the expression of ideas, while patent's purpose is to protect what are generally understood to be inventions-in a sense the ideas themselves."9
When considering CONTU SUB-COMMITTEE's report,bear in mind that the committee's mission was to update the copyright law.This is evident in the way the committee defines the term '' computer program", as a writing"10.Writings are the sub.matter of C.R.The committee did not rule out patent protection for software.It acknowledged that patent protection may also be possible for the underlying idea or software process itself11. However,it does express three problems with software patents.
1."availability of patent protection for programs is unclear.
2. even if available, only software meeting the rigid standards of novelty and non-obviousness required by Title 35 of the U.S.code could be patented.
3. unlike C.R.,patents can be used to protect " processes'',and under the patent system the independent development of the same work is an infringement."12
The 1st problem identified by the software subcommitteee originated directly from then existing uncertainities over the patentable sub.matter.Lower court interpretation of the S.C decision in Gottschalt v Benson13 is the principal source of the problems.Uncertainities injected by the decision have been largely erased by the S.C. in the Diamond v Diehr14by stating that software is patentable.This decision was strongly influenced by Chakrabarty's15 decision.
The remaining problems are not criticisms of patent law at all.The second problem simply states that all software is not protectable.Thus committee notes much software would go unprotected if a patent only approach was adopted. The 3rd problem is simply a truth about the difference between patent and copyright.
In 1994 patent office held public hearing on soft patents in San Jose. With a few notable exceptions many large corporate software developers and computer manufacturers favoured software patents
Thus the history of software patents is not final or complete.There is no doubt that the soft patents will flourish.Here we keep in mind the statement made by the CONTU that '' any form of protection other than copyright would restrict society's access to information."16
---------------------------------------------------------------------------------------------------------
1.1 Stat.110(1790)
2.P.J.Federico,''Origin and Early History of Patents",18 J. of Patent Off.Soc'y ,No:7 at 91
3.Ibid.
4.O'Reilly v Morse ,56 U.S.62(1853)
5.I claim, as my invention, the system of signs,consisting of dots and spaces and of dots,spaces and horizontal lines.......substantially as herein setforth and illustrated for telegrafic purposes'',Id. at 112
6.House of Commons on the Judicial Hearings on Act of Dec.31,1974,93rd Con.2nd sess.(Feb.23,1976)
7.among the hybrid proposals considered were those presented to the WIPO in Kolle
8.Software SubCommittee to the Nat'l Comm'n on New Technological Uses of Copyrighted Works 7-8.Report of the CONTU(July 13 ,1978)
9.Id. at 2-3
10. "A computer program is a writing which sets forth instructions which can direct the operation of an automatic system capable of storing,processing,retrieving or transferring information.It is an explanation of a process and not the process itself ''., Id. at 3
11 .'' this distinction between the process and the writings which describes it is of critical importance to understanding how copyright applies to coputer programs.With a program as with all forms of creative endeavor,there are three different phenomena:
1.description of activity (process)
2.the activity itself
3.the result of activity
Descriptions of a process are protectable through C.R.without regard to whether they are narrative descriptions or lists of instructions.Processes or principles of operation are protectable through patents or trade secrets"', Id. at 3-4
12.Ibid.
13.409 U.S.63 (1972)
14.450 U.S.175 (1981)
15.447 U.S. 303,309(1980),the court held that congress in drafting the Patent Act 1952, intended statutorily patentable subject matter to include '' anything under the sun that is made by man''
16.Supra n.8
---------------------------------------------------------------------------------------------------------
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From cindubkrishnan at yahoo.co.in Wed Jun 30 15:23:44 2004
From: cindubkrishnan at yahoo.co.in (=?iso-8859-1?q?cindu=20balakrishnan?=)
Date: Wed, 30 Jun 2004 10:53:44 +0100 (BST)
Subject: [Commons-Law] POSTING-3
Message-ID: <20040630095344.66356.qmail@web8302.mail.in.yahoo.com>
Dear all,
In this posting I will be dealing with the history of software patent,which is closely connected with the history of patent law in the U.S.
---------------------------------------------------------------------------------------------------------
HISTORY OF SOFTWARE PATENTS
The U.S.Govt. began operation under the constitution on March 4,1789.The constitution gave Congress the power to promote science and useful arts.The first patent Act was passed in 1790.Under the Act patent can be issued for a period not exceeding 14 years,to any petitioner that " hath...invented or discovered any useful art,manufacture or device or any improvement therein not before known or used.''1 The applicant had to submit a written specification under the Act.Later the patent ACT 1793 changed the patent system from an examination system to registration system.A patent was issued on the application as a simple clerical act.This registration system did not work and was replaced in 1836 again with an examination system2.
Roughly 10000 patents were granted under the 1793 Act.,which was replaced in 1836.3.Although it would still be many years before the invention of the programmable digital computer,there is evidence from this time that the software patent was about to emerge.In 1837 Samuel Morse applied for a patent on the telegraph.4.Morse claim(5) is interesting from a software patent standpoint.There is little difference between Morse's claimed telegraphic code and modern computer machine code5
1966 Presidential Commission on Patent System recommended that patents on computer programs should be permitted.The principal objections are that the patent office cannot classify software effectively and copyright protection available for software is adequate.In 1976 Congress created a National Commission on New Technological Uses of Copyrighted works (CONTU) to evaluate adequacy of copyright law regarding computer based information systems and photocopying technology6.
Software sub-committee consider the hybrid form of protection to the computer program7.Such hybrid proposals generally combine elements of patent and copyright.The committee rejected hybrid forms of protection by stating that any form of protection other than copyright would restrict society's access to information8.
The Committee articulated one key difference between copyright protection and patent protection.
" copy right law gives moderate protection to the original writings of authors for an extented period of time without regard to the quality of the work.Patent law on the other hand , gives stronger protection to certain discoveries of inventors for a much shorter period of time if and only if the Fed. Govt.is satisfied that the work is useful.novel and non-obvious to those familier with the related technology.Very broadly the C.R. is designed to protect the expression of ideas, while patent's purpose is to protect what are generally understood to be inventions-in a sense the ideas themselves."9
When considering CONTU SUB-COMMITTEE's report,bear in mind that the committee's mission was to update the copyright law.This is evident in the way the committee defines the term '' computer program", as a writing"10.Writings are the sub.matter of C.R.The committee did not rule out patent protection for software.It acknowledged that patent protection may also be possible for the underlying idea or software process itself11. However,it does express three problems with software patents.
1."availability of patent protection for programs is unclear.
2. even if available, only software meeting the rigid standards of novelty and non-obviousness required by Title 35 of the U.S.code could be patented.
3. unlike C.R.,patents can be used to protect " processes'',and under the patent system the independent development of the same work is an infringement."12
The 1st problem identified by the software subcommitteee originated directly from then existing uncertainities over the patentable sub.matter.Lower court interpretation of the S.C decision in Gottschalt v Benson13 is the principal source of the problems.Uncertainities injected by the decision have been largely erased by the S.C. in the Diamond v Diehr14by stating that software is patentable.This decision was strongly influenced by Chakrabarty's15 decision.
The remaining problems are not criticisms of patent law at all.The second problem simply states that all software is not protectable.Thus committee notes much software would go unprotected if a patent only approach was adopted. The 3rd problem is simply a truth about the difference between patent and copyright.
In 1994 patent office held public hearing on soft patents in San Jose. With a few notable exceptions many large corporate software developers and computer manufacturers favoured software patents
Thus the history of software patents is not final or complete.There is no doubt that the soft patents will flourish.Here we keep in mind the statement made by the CONTU that '' any form of protection other than copyright would restrict society's access to information."16
---------------------------------------------------------------------------------------------------------
1.1 Stat.110(1790)
2.P.J.Federico,''Origin and Early History of Patents",18 J. of Patent Off.Soc'y ,No:7 at 91
3.Ibid.
4.O'Reilly v Morse ,56 U.S.62(1853)
5.I claim, as my invention, the system of signs,consisting of dots and spaces and of dots,spaces and horizontal lines.......substantially as herein setforth and illustrated for telegrafic purposes'',Id. at 112
6.House of Commons on the Judicial Hearings on Act of Dec.31,1974,93rd Con.2nd sess.(Feb.23,1976)
7.among the hybrid proposals considered were those presented to the WIPO in Kolle
8.Software SubCommittee to the Nat'l Comm'n on New Technological Uses of Copyrighted Works 7-8.Report of the CONTU(July 13 ,1978)
9.Id. at 2-3
10. "A computer program is a writing which sets forth instructions which can direct the operation of an automatic system capable of storing,processing,retrieving or transferring information.It is an explanation of a process and not the process itself ''., Id. at 3
11 .'' this distinction between the process and the writings which describes it is of critical importance to understanding how copyright applies to coputer programs.With a program as with all forms of creative endeavor,there are three different phenomena:
1.description of activity (process)
2.the activity itself
3.the result of activity
Descriptions of a process are protectable through C.R.without regard to whether they are narrative descriptions or lists of instructions.Processes or principles of operation are protectable through patents or trade secrets"', Id. at 3-4
12.Ibid.
13.409 U.S.63 (1972)
14.450 U.S.175 (1981)
15.447 U.S. 303,309(1980),the court held that congress in drafting the Patent Act 1952, intended statutorily patentable subject matter to include '' anything under the sun that is made by man''
16.Supra n.8
---------------------------------------------------------------------------------------------------------
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From cindubkrishnan at yahoo.co.in Wed Jun 30 15:29:45 2004
From: cindubkrishnan at yahoo.co.in (=?iso-8859-1?q?cindu=20balakrishnan?=)
Date: Wed, 30 Jun 2004 10:59:45 +0100 (BST)
Subject: [Commons-Law] POSTING-3
Message-ID: <20040630095945.96521.qmail@web8310.mail.in.yahoo.com>
Dear all,
In this posting I will be dealing with the history of software patent,which is closely connected with the history of patent law in the U.S.
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HISTORY OF SOFTWARE PATENTS
The U.S.Govt. began operation under the constitution on March 4,1789.The constitution gave Congress the power to promote science and useful arts.The first patent Act was passed in 1790.Under the Act patent can be issued for a period not exceeding 14 years,to any petitioner that " hath...invented or discovered any useful art,manufacture or device or any improvement therein not before known or used.''1 The applicant had to submit a written specification under the Act.Later the patent ACT 1793 changed the patent system from an examination system to registration system.A patent was issued on the application as a simple clerical act.This registration system did not work and was replaced in 1836 again with an examination system2.
Roughly 10000 patents were granted under the 1793 Act.,which was replaced in 1836.3.Although it would still be many years before the invention of the programmable digital computer,there is evidence from this time that the software patent was about to emerge.In 1837 Samuel Morse applied for a patent on the telegraph.4.Morse claim(5) is interesting from a software patent standpoint.There is little difference between Morse's claimed telegraphic code and modern computer machine code5
1966 Presidential Commission on Patent System recommended that patents on computer programs should be permitted.The principal objections are that the patent office cannot classify software effectively and copyright protection available for software is adequate.In 1976 Congress created a National Commission on New Technological Uses of Copyrighted works (CONTU) to evaluate adequacy of copyright law regarding computer based information systems and photocopying technology6.
Software sub-committee consider the hybrid form of protection to the computer program7.Such hybrid proposals generally combine elements of patent and copyright.The committee rejected hybrid forms of protection by stating that any form of protection other than copyright would restrict society's access to information8.
The Committee articulated one key difference between copyright protection and patent protection.
" copy right law gives moderate protection to the original writings of authors for an extented period of time without regard to the quality of the work.Patent law on the other hand , gives stronger protection to certain discoveries of inventors for a much shorter period of time if and only if the Fed. Govt.is satisfied that the work is useful.novel and non-obvious to those familier with the related technology.Very broadly the C.R. is designed to protect the expression of ideas, while patent's purpose is to protect what are generally understood to be inventions-in a sense the ideas themselves."9
When considering CONTU SUB-COMMITTEE's report,bear in mind that the committee's mission was to update the copyright law.This is evident in the way the committee defines the term '' computer program", as a writing"10.Writings are the sub.matter of C.R.The committee did not rule out patent protection for software.It acknowledged that patent protection may also be possible for the underlying idea or software process itself11. However,it does express three problems with software patents.
1."availability of patent protection for programs is unclear.
2. even if available, only software meeting the rigid standards of novelty and non-obviousness required by Title 35 of the U.S.code could be patented.
3. unlike C.R.,patents can be used to protect " processes'',and under the patent system the independent development of the same work is an infringement."12
The 1st problem identified by the software subcommitteee originated directly from then existing uncertainities over the patentable sub.matter.Lower court interpretation of the S.C decision in Gottschalt v Benson13 is the principal source of the problems.Uncertainities injected by the decision have been largely erased by the S.C. in the Diamond v Diehr14by stating that software is patentable.This decision was strongly influenced by Chakrabarty's15 decision.
The remaining problems are not criticisms of patent law at all.The second problem simply states that all software is not protectable.Thus committee notes much software would go unprotected if a patent only approach was adopted. The 3rd problem is simply a truth about the difference between patent and copyright.
In 1994 patent office held public hearing on soft patents in San Jose. With a few notable exceptions many large corporate software developers and computer manufacturers favoured software patents
Thus the history of software patents is not final or complete.There is no doubt that the soft patents will flourish.Here we keep in mind the statement made by the CONTU that '' any form of protection other than copyright would restrict society's access to information."16
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1.1 Stat.110(1790)
2.P.J.Federico,''Origin and Early History of Patents",18 J. of Patent Off.Soc'y ,No:7 at 91
3.Ibid.
4.O'Reilly v Morse ,56 U.S.62(1853)
5.I claim, as my invention, the system of signs,consisting of dots and spaces and of dots,spaces and horizontal lines.......substantially as herein setforth and illustrated for telegrafic purposes'',Id. at 112
6.House of Commons on the Judicial Hearings on Act of Dec.31,1974,93rd Con.2nd sess.(Feb.23,1976)
7.among the hybrid proposals considered were those presented to the WIPO in Kolle
8.Software SubCommittee to the Nat'l Comm'n on New Technological Uses of Copyrighted Works 7-8.Report of the CONTU(July 13 ,1978)
9.Id. at 2-3
10. "A computer program is a writing which sets forth instructions which can direct the operation of an automatic system capable of storing,processing,retrieving or transferring information.It is an explanation of a process and not the process itself ''., Id. at 3
11 .'' this distinction between the process and the writings which describes it is of critical importance to understanding how copyright applies to coputer programs.With a program as with all forms of creative endeavor,there are three different phenomena:
1.description of activity (process)
2.the activity itself
3.the result of activity
Descriptions of a process are protectable through C.R.without regard to whether they are narrative descriptions or lists of instructions.Processes or principles of operation are protectable through patents or trade secrets"', Id. at 3-4
12.Ibid.
13.409 U.S.63 (1972)
14.450 U.S.175 (1981)
15.447 U.S. 303,309(1980),the court held that congress in drafting the Patent Act 1952, intended statutorily patentable subject matter to include '' anything under the sun that is made by man''
16.Supra n.8
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From jeebesh at sarai.net Wed Jun 30 16:37:20 2004
From: jeebesh at sarai.net (Jeebesh Bagchi)
Date: Wed, 30 Jun 2004 16:37:20 +0530
Subject: [Commons-Law] POSTING-3
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dear Cindu,
It may be worthwhile to go over the arguments being made by Doron S.
Ben-Atar in his book `Trade Secrets : Intellectual Piracy and the
Origins of American Industrial Power` (Yale Univ Press, 2004).
"During the first decades of America's existence as a nation, private
citizens, voluntary associations, and government officials encouraged
the smuggling of European inventions and artisans to the New World. At
the same time, the young republic was developing policies that set new
standards for protecting industrial innovations."
It maybe worthwhile to see the history of the first strand with some
detail. A lot of assumptions about `benefits` form IP is based on very
thin historical research.
(The second strand seem to have captured the imagination of legal
scholarship and is giving rise to very thin account of realities of ip
protection and enforcement and it's legitimacy.)
best
jeebesh