From tahir.amin at btopenworld.com Tue Mar 1 11:15:58 2005 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Tue, 1 Mar 2005 05:45:58 +0000 (GMT) Subject: [Commons-Law] Biodiverse countries call for tighter patent rules Message-ID: <20050301054558.86194.qmail@web86107.mail.ukl.yahoo.com> Biodiverse countries call for tighter patent rules Priya Shetty 28 February 2005 Source: SciDev.Net Developing countries that are rich in biodiversity have called for tighter patent rules to prevent their biological resources being misappropriated and to ensure that benefits arising from their use are shared fairly. The proposal was made at a meeting of the parties to the UN Convention on Biological Diversity held from14-18 February in Bangkok, Thailand. Its proponents included the Like-Minded group of Mega-diverse Countries (LMMCs) — so called because they contain most of the world's biodiversity — and a negotiating group representing Africa. They proposed a legally binding regime that would require users of biological resources to first seek informed consent of the country of origin, and to ensure that the origin of the resources were disclosed in patent applications. Developing countries said the regime should be broad enough to also cover products derived from patented resources. However, developed countries at the meeting, including Australia, Canada, the European Union and Japan (the United States is not a signatory) maintained an 'open' position, suggesting that benefit sharing could be enforced through existing instruments. Among these are the Bonn Guidelines, drawn up in 2002 to help parties to the Convention on Biological Diversity implement fair access to genetic resources. But many developing countries, including the LMMCs, stressed at the Bangkok meeting that these voluntary guidelines were not enough to prevent violations of national legislation or ensure compliance with benefit sharing. Their chief concern is 'biopiracy', whereby biological resources could be appropriated by foreign researchers and used to develop new, patent-protected products, without benefits being returned to the country of origin. The South African representative told delegates that some intellectual property instruments undermine rather than promote benefit sharing. Developing countries said that instead they sought an international regime that supports and complements — rather than overrides — national legislation. Critics of the developing countries' proposal include Alan Oxley, based at the APEC Study Centre at Monash University, Melbourne, Australia. In a report published to coincide with the Bangkok meeting, Oxley warned that going down a "litigious" path in which patents are tightly regulated "risks destroying benefits for everyone". He argues that a market-based approach, in which agreements between users and providers of genetic resources are designed on a case-by-case basis represents the way forward. However, an internationally flexible system that relies on such ad hoc agreements would mean that developing countries would be forced to police their own biodiversity — and not all countries have the resources to do this. The LMMCs want the convention on biological diversity to ensure that countries can determine how products derived from their biological resources can be used. Oxley maintains that the LMMC proposal would "block the development of biotechnology" and halt bioprospecting by deterring pharmaceutical companies from investing in research into drugs based on indigenous resources. The LMMCs are Bolivia, Brazil, China, Colombia, Costa Rica, Democratic Republic of Congo, Ecuador, India, Indonesia, Kenya, Madagascar, Malaysia, Mexico, Peru, Philippines, South Africa and Venezuela. Send instant messages to your online friends http://uk.messenger.yahoo.com -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050301/60c472c9/attachment.html From patrice at xs4all.nl Tue Mar 1 15:52:46 2005 From: patrice at xs4all.nl (Patrice Riemens) Date: Tue, 1 Mar 2005 11:22:46 +0100 Subject: [Commons-Law] fwdurfyi: The Fallacy of Microsoft's Shared Source Program Message-ID: <20050301102246.GA57174@xs4all.nl> As per request ... ;-) (it is indeed sub-zero in Amsterdam, brrrrrr patrizio & Bada Chipkali & Chotu Mia ;-) ----- Forwarded message from Aldert Hazenberg ----- Date: Mon, 28 Feb 2005 21:24:20 +0100 From: Aldert Hazenberg To: Patrice Riemens Subject: The Fallacy of Microsoft's Shared Source Program Hi Patrice, This is I think something you like to share with lots of people :) The Fallacy of Microsoft's Shared Source Program http://www.sateh.com/archives/2005/02/the_fallacy_of.html Greetings from a sub-zero Amsterdam :) Aldert. - -- "You should view the world as a conspiracy run by a very closely-knit group of nearly omnipotent people, and you should think of those people as yourself and your friends." --Robert Anton Wilson - ----- End forwarded message ----- From patrice at xs4all.nl Wed Mar 2 17:24:50 2005 From: patrice at xs4all.nl (Patrice Riemens) Date: Wed, 2 Mar 2005 12:54:50 +0100 Subject: [Commons-Law] John Gilmore's fight for privacy and against ID laws Message-ID: <20050302115450.GB26053@xs4all.nl> Original to: http://www.postgazette.com/pg/05058/462446.stm Grounded: Millionaire John Gilmore stays close to home while making a point about privacy He's unable to travel because he refuses to present a government-approved ID Sunday, February 27, 2005 By Dennis Roddy, Pittsburgh Post-Gazette SAN FRANCISCO -- John Gilmore's splendid isolation began July 4, 2002, when, with defiance aforethought, he strolled to the Southwest Airlines counter at Oakland Airport and presented his ticket. Dennis Roddy, Post-Gazette John Gilmore, beside a graffiti-covered wall, has his morning coffee at a shop that's one block from his San Francisco home. The Bradford native doesn't drive and has other travel restrictions, thanks to his challenge of a law that the government won't allow him to see. Click photo for larger image. The gate agent asked for his ID. Gilmore asked her why. It is the law, she said. Gilmore asked to see the law. Nobody could produce a copy. To date, nobody has. The regulation that mandates ID at airports is "Sensitive Security Information." The law, as it turns out, is unavailable for inspection. What started out as a weekend trip to Washington became a crawl through the courts in search of an answer to Gilmore's question: Why? In post 9/11 America, asking "Why?" when someone from an airline asks for identification can start some interesting arguments. Gilmore, who learned to argue on the debate team in his hometown of Bradford, McKean County, has started an argument that, should it reach its intended target, the U.S. Supreme Court, would turn the rules of national security on end, reach deep into the tug-of-war between private rights and public safety, and play havoc with the Department of Homeland Security. At the heart of Gilmore's stubbornness is the worry about the thin line between safety and tyranny. "Are they just basically saying we just can't travel without identity papers? If that's true, then I'd rather see us go through a real debate that says we want to introduce required identity papers in our society rather than trying to legislate it through the back door through regulations that say there's not any other way to get around," Gilmore said. "Basically what they want is a show of obedience." Dennis Roddy, Post-Gazette There's no place like home for John Gilmore, who can't travel very far from his San Francisco residence. The Bradford native refuses to give his identification for flying. Click photo for larger image. As happens to the disobedient, Gilmore is grounded. He is rich -- he estimates his net worth at $30 million -- and cannot fly inside the United States. Nor can he ride Amtrak, rent a room at most major hotels, or easily clear security in the courthouses where his case, Gilmore v. Ashcroft, is to be heard. In a time when more and more people and places demand some form of government-issued identification, John Gilmore offers only his 49-year-old face: a study in stringy hair, high forehead, wire-rimmed glasses, Ho Chi Minh beard and the contrariness for which the dot.com culture is renowned. "I think of myself as being under regional arrest," he said. Even with $30 million in the bank, regional arrest can be hard. He takes the bus to and from events at which he is applauded by less well-heeled computer techies who flew in from around the country after showing a boarding pass and one form of government-issued photo ID and arrived in rental cars that required a valid driver's license and one major credit card. He was employee No. 5 at Sun Microsystems, which made Unix, the free software of the Web, the world standard. He japed the government by cracking its premier security code. He campaigned to keep the software that runs the Internet free of charge. After he left Sun, Gilmore started his own firm, sold it for more money than he seems to have bothered to count and has since devoted his time to giving it away to favored causes: drug law reform, a campaign to standardize computer voting machines and the Electronic Frontier Foundation, something of an ACLU for the Information Age. To some, Gilmore's argument is redolent of the conspiracy theories from the black helicopter crowd. "That's the problem. How it sounds," Gilmore said. He waved his hands like some Cassandra: "They have all these secret laws! The UFOs are coming! They have guards at every airport!" Yes, he said, there is a certain odd flavor to the notion that someone shouldn't have to show ID to board a plane, but with magnetometers at the gates, guards with security wands, fortified cockpit doors and sky marshals abounding, Gilmore is asking just how much citizens are giving up when they hand their driver's licenses to a third party, in this case an airline, where it is put into a database they cannot see, to meet a law that, as it turns out, they are not allowed to read. Gilmore will show ID for an international flight because he doesn't expect to set the rules for other nations. "I will show a passport to travel internationally. I'm not willing to show a passport to travel in my own country," Gilmore said. "I used to laugh at countries that had internal passports. And it's happened here and people don't even seem to know about it." >From geek to riches The passage of John Gilmore from a bespectacled proto-nerd from Bradford, Pa., to the twice-wealthy privacy-rights pioneer of the dot.com West Coast started in his father's living room, where he first suspected authority is used simply because someone has it. When something was found broken or spilled or some other evidence of a fractured rule surfaced, and the guilty party unknown, the elder Gilmore would summon his four children to the living room. "He'd line us all up in the living room. Until one of us confessed, we wouldn't get to leave. Eventually one of my younger brothers started confessing to things he didn't do just so we could get out of there," Gilmore said. Gilmore's father was a mechanical engineer. John was born in York and the family moved to Bradford, near the state's northern border with New York, when he was small. Today, at his home in Haight-Ashbury, a place he named Toad Hall, after the character from "The Wind in the Willows," Gilmore keeps a small school photo. It shows him with a little-boy crew cut and thick, half-rim eyeglasses, the kind that have been in and out of fashion twice since the photo was taken in the mid-1960s. The young Gilmore was a strong student at the schools in Bradford. He took to math. In high school, he became curious about computers. The 1960s were an era in which computers enjoyed an almost mystical reputation; imputed by popular culture with the power to deduce anything. One year, a team of scientists entered data for the 1927 New York Yankees and the 1963 Los Angeles Dodgers to see who would win -- an early "computer match." Babe Ruth was even credited with a home run. It was easy for a bright boy to become curious about how something so all-knowing worked. "When he was 12, for his birthday, he asked for an IBM manual," said his mother, Pat Woodruff, who remarried after she and Gilmore's father divorced 20 years ago and returned to live in Bradford. "His floor used to be littered with papers. I had no idea what he was doing." The University of Pittsburgh opened a branch campus in a building across the street from his high school. In it, they placed a desk-sized IBM 360. Gilmore started wandering over to learn FORTRAN, the punch-card programming language that made the computer do complex mathematical calculations. The Pitt-Bradford library had a few computer books, and one of his high school teachers got John a card. The family was about to move to Alabama when John began writing to the company that printed up a $3 manual for computer use. The firm, Scientific Time Sharing Corp., in Bethesda, Md., rented out computer time to companies such as Arbitron and ABC News, which needed storage for vast databases. After the third or fourth correspondence, they wrote back to ask if he was a customer. Gilmore wrote back that he was a high school student and he was moving to Alabama. After completing high school in Alabama, Gilmore had two summer internships behind him and a full-time job as the youngest geek in Bethesda. He had a few dollars in his pocket and a letter of acceptance from Michigan State University. He used the money. The letter was of little use. Computer science had not yet come into its own as an academic discipline. "Why pay someone to teach me computers when I can get someone to pay me to learn them?" he reasoned. Road trip When techies burn out, they tend not to do strange things. They are, by nature, already a few degrees off plumb. So they revert to the ordinary. Gilmore burned out in the late '70s. He got on a motorcycle and rode west. "He just packed up his stuff and moved off," Pat Woodruff said. "I don't know where he went at this time." He went to New Mexico. Gilmore worked for a while in the lowest of mechanical technologies: a traveling carnival. He ran the Tilt-A-Whirl. "You have to watch the thing closely and know when someone's going to lose it, so you move back," he said. Dodging stomach contents kept him employed for a while. At one point he moved in with New Mexico's most dysfunctional couple. The male in the relationship found out the female was pregnant. An argument broke out. A gun was produced. Gilmore forgot his lesson from the Tilt-A-Whirl. He didn't duck. A bullet caught him in the hand. He finished his New Mexico stay sleeping under a stairwell at the local college. He knocked around the country a bit more. Staying with a relative in Jacksonville, Fla., Gilmore looked for a job at a local bank. "They said they wouldn't hire me as a teller, but they'd be glad to hire me to run their computer," he said. Eventually, Gilmore moved to San Francisco and took up computer consulting. One day, a friend called. He'd gone to work for a startup firm called Microsoft. The company's founder, a Harvard dropout named Bill Gates, was selling Unix, a universal software on which the Internet would be based, and he wanted Gilmore to find a way to make Unix work on the computers of a prospective customer based at Stanford University. After a job interview, Gilmore called the people at Stanford. They were starting a company to be called Sun, short for Stanford University Network, and would Gilmore like to be their first software employee. "I hired on at Sun because the work was interesting," he said. The pay was just short of marginal. Thus did John Gilmore get rich by accident. Because he was on the ground floor, his stock was worth more. Sun went public in 1986 and suddenly John Gilmore was rich. He stayed on at Sun as a consultant until 1989, then started his own company, Cygnus. A few years later, when he sold Cygnus, he was, in the parlance of Silicon Valley, "loaded." That is to say he is not ridiculously rich -- just wealthy enough to make trouble. He did. Gilmore, for instance, is blocked from most e-mail servers because he runs what the industry calls an "open relay" on his computer server, tucked into the basement of his house. People are able to send e-mail through it without identifying themselves, raising the ire of the anti-spam movement. His server sits next to the remnants of what is known in the industry as the "DES Cracker." It is a collection of computer chips, connected by a spider web of circuitry that he built to overpower the most widely used encryption system -- the same one used on ATMs and satellite dishes. "The government was recommending everybody use it. We did that to show it wasn't worth relying on," Gilmore said. His own theory was that a privacy program offered by the government isn't, by nature, likely to remain private. By 1996, Gilmore's dislike of authority was in full bloom. At San Francisco Airport, he refused to produce a driver's license for security police. "The cop said, 'You want me to arrest you?' I said, 'I'd consider it an honor.' " They honored him with an arrest. The district attorney dropped the case. Gilmore has epilepsy, and because of that his driver's license was suspended five years ago. He decided not to reapply because it is now easier, when asked for a photo ID, to be able to say forthrightly that he has none. More than $1 million of his money has gone to house and feed the Electronic Frontier Foundation. On a given day, visitors can find a team of lawyers meeting with young men and women, still pale from too much time indoors, seeking counsel to protect them from the wrath of everyone from the Recording Industry Association of America, which is trying to shut down music file sharers, to federal regulators worried about the latest software for encrypting e-mail communications. "He cares a great deal about privacy," said Lee Tien, a full-time litigator at EEF. Because privacy is one of those things that disappears without always being noticed right away, Tien and other EFF lawyers find themselves fighting regulations nobody gets excited about right away. "Privacy discourse ends up being at one end, 'What have you got to hide?' vs. 'Mind your own business,' " Tien said. "If John Gilmore were a country," adds his personal publicist, Bill Scannell, "his motto would be 'Let Me Alone.' " Conscious objection Rosa Parks did not ride that bus in Montgomery by accident. Several strategy meetings preceded the famous ride in which the founding mother of the civil rights movement boarded a bus and declined to sit in the back. Gilmore's famous visit to two airline ticket counters in the Bay Area was charted out. He checked in with his lawyer. He kept notes. He booked a flight from Oakland, with its slightly cheaper fares, to Washington, D.C., where he planned to drop in on the offices of his member of congress, U.S. Rep. Nancy Pelosi, D-San Francisco, to convey his growing concern about the amount of data the government is gathering from and about its citizens. His reason for travel, he would later say, was "to petition the government for redress." That added First Amendment issues to a Constitutional exercise that would also turn on the amendments against unreasonable search and seizure and the right to assemble and petition the government for redress of grievances. Everything went pretty much according to expectations. That is to say, everything went to hell in a hurry. As Gilmore tells it, he arrived at the gate two hours early, a paper ticket purchased through a travel agent in his hand. A Southwest agent asked for his ID. Gilmore, in turn, asked her if the ID requirement was an airline rule or a government rule. She didn't seem to know. Gilmore argued that if nobody could show him the law, he wasn't showing them an ID. They reached a strange agreement for an argument about personal privacy: In lieu of showing ID, Gilmore would consent to an extra-close search, putting up with a pat-down in order to keep his personal identity to himself. He was wanded, patted down and sent along. As Gilmore headed up the boarding ramp a security guard yanked him from line. According to court papers, a security agent named Reggie Wauls informed Gilmore he would not be flying that day. "He said, 'I didn't let you fly because you said you had an ID and wouldn't show it,' " Gilmore said. "I asked, 'Does that mean if I'd left it at home I'd be on the plane?' He said, 'I didn't say that.' " The Gilmore case is, if anything, about things unsaid. Gilmore -- and millions of other people -- are daily instructed to produce some manner of ID: a driver's license, a Social Security number, a phone number, date of birth. When Gilmore asked to see the rules explaining why his photo ID is necessary for airline security, his request was denied. The regulation under which the Transportation Safety Administration, an arm of the Department of Homeland Security, instructs the airlines to collect such identification is classified as "Sensitive Security Information." When Congress passes a law, it is as often as not up to some agency to decide what that law means and how to enforce it. Usually, those regulations are available for people to examine, even challenge if they conflict with the Constitution. This wasn't the case when Congress passed the Air Transportation Security Act of 1974. The Department of Transportation was instructed to hold close information that would "constitute an unwarranted invasion of personal privacy" or "reveal trade secrets" or "be detrimental to the safety of persons traveling in air transportation." The Federal Aviation Administration, then a branch of the transportation department, drew up regulations that established the category now known as Sensitive Security Information. When the responsibility for air travel safety was transferred to the newly created Transportation Safety Administration, which was in turn made a branch of the new Department of Homeland Security, the oversight for Sensitive Security Information went with it. The language in the Homeland Security Act was broadened, subtly but unmistakably, where SSI was concerned. It could not be divulged if it would "be detrimental to the security of transportation." "By removing any reference to persons or passengers, Congress has significantly broadened the scope of SSI authority," wrote Todd B. Tatelman, an attorney for the Congressional Research Office. Tatelman was asked by Congress last year to look at the implications of Gilmore's case. Tatelman's report found that the broadened language essentially put a cocoon of secrecy around 16 categories of information, such as security programs, security directives, security measures, security screening information "and a general category consisting of 'other information.' " The government has been so unyielding on disclosure that men with the name David Nelson suddenly found themselves ejected from flights. Somewhere in the system, the name came up on the newly created "No Fly" list. Sen. Edward M. Kennedy, D-Mass., found himself in the same dilemma. When baggage screeners were caught pilfering, prosecutions were dropped because a trial would require a discussion of "Sensitive Security Information." When John Gilmore demanded proof that the airport ID rule met Constitutional muster, the government at first declined to acknowledge it even existed. Ann Davis, a spokeswoman for TSA, tacitly acknowledged the strange rabbit hole into which Gilmore has fallen. The Department of Justice, in its first response to Gilmore's suit two years ago, declined to acknowledge whether such an instruction existed. Later, it admitted its existence. Then the government asked a judge to hold a hearing in secret and preclude Gilmore's lawyers from seeing the regulation they sought to challenge, the contents of which seem to be pretty widely known. "It's a rubber stamp. TSA security directives are -- plural -- sensitive security information and not subject to public disclosure," Davis said. How, then, is someone to challenge in court a law he's not allowed to see? "I have no idea," Davis said. "If a passenger doesn't wish to show ID prior to getting a boarding pass, that's something they're going to have to take up with the air carrier. And the air carrier is required to obtain government-issued identification." That, says Gilmore's lawyer, Jim Harrison, is the enigma of the case: "It's about the ability of the citizens of this country to be able to move about the country, to move about freely, without being subject to laws they can't see." The legal cul-de-sac erected around airport security is not limited to Gimore's deliberately chosen fight. In October 2001, at San Francisco Airport, Arshad Chowdhury, born and raised in the United States, was surrounded by security agents and kept off a Northwest Airlines flight. He was trying to get back to Carnegie Mellon University, where he was a graduate student. Chowdhury's last name sounded somewhat like another name on the no-fly list. He could never get an explanation. He filed suit against Northwest, but, to date, his court fight has been with the government, which has pleaded Sensitive Security Information. To sue Northwest for racial profiling, Chowdhury must first sue his own government for the rules Northwest will plead it was enforcing. High-tech togetherness Code Con is one of those technological events so deep that ordinary conversation requires an English-to-English translator. A young woman was onstage explaining a system she had developed to, as it turns out, automate trust in discussion groups by assigning a ranking of credibility to participants based on past messages and reactions. Discussion boards must either be moderated, to keep the wackos from disrupting them, or wide open, in which case postings can take unreasonably long times. As she spoke, half the audience inside a darkened nightclub rented for the event stared into the blue glow of laptop computers. Some were following the PowerPoint presentation on a Web site set up for the affair. Dan Klein, a Pittsburgh computer consultant, was in the back of the room. He has known Gilmore for years, and to know Gilmore is to know the room. Computer programmers, the really good ones, combine an artistic temperament with a conviction that intuitive reasoning can lead to mathematical certainty. "It's elegant thinking," Klein said. "We are most of us white hats, but we think like black hats." The elegance of Gilmore's thinking is that knowing someone's ID does not prevent the person from committing a terrorist act. The 9/11 hijackers had driver's licenses. Knowing someone's identity, as Gilmore argues it, adds less to a security than it takes away from a traveler's protection from authority that might oppress simply because it can. "It's just rebellion against oppression," Klein said. "Part of it is this sense of 'Why do I have to follow all these rules when they don't make any sense?' " The young woman finished her speech, took a few questions and, just as everyone was about to rise for lunch, Scannell, a peripatetic man who orbits around both the techies and the world of PR, was on the stage. He had a special request. He had just become a parent and wanted to put in a wireless baby monitor. Could someone come up with a way to encrypt a baby monitor so outsiders couldn't pick up the signal? By day's end a few people had approached with ideas. It is doubtful anyone would bother to listen in on a baby gurgling, but this was the principle of the thing: meeting the people who know the math to make it work. Soon afterward, 14 Code Con attendees flooded into a nearby Italian restaurant. Gilmore sat at one end of the table, chatted privacy, travel and whether the drug called Ecstasy has a medicinal application. Then, to save time, he picked up everyone's check. In cash. No credit cards. Why leave a paper trail? That night, he caught a ride home with a friend. The night before was more to his liking. On a bus running through San Francisco to Haight-Ashbury, a multimillionaire sat alone in a seat next to a woman who appeared to be homeless. Neither knew who the other one was. All John Gilmore had to show to get on board was a $1.25 fare. That's how he likes it. -------------------------------------------------------------------------------- (Dennis Roddy can be reached at droddy at post-gazette.com or 412-263-1965.) -------------------------------------------------------------------------------- Copyright �1997-2004 PG Publishing Co., Inc. All Rights Reserved. From lawrence at altlawforum.org Thu Mar 3 10:20:12 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Thu, 03 Mar 2005 10:20:12 +0530 Subject: [Commons-Law] When Free Music does pay - Thermal Story Message-ID: Hi all some time ago I had posted the news of an upcoming band called thermal and a quarter who released their latest album "Plan B" for free to download under a Thermal Open Music License. Perhaps a good example of how a band without large studio backing can make good use of the internet to gain recognition for themselves. We are also in the process of finalising a copyleft comic which takes off on a WIPO pedagogical comic on Copyright and thermal will also feature in the comic, a rough cut of the comic of the comic is available right now on our website but Ver. 1 with the thermal story should be up in a few days lawrence ===== Hey there, This has been a really busy weekend and we can't wait to get to the big news! NPR's highly rated show 'All Things Considered' featured Thermal And A Quarter on February 28. We were interviewed by Jeffrey Pepper Rodgers, who has also interviewed Dave Matthews and Tim Reynolds, Ani DiFranco, Bruce Cockburn and our own Allah Rakha Rahman. The entire audio documentary is up at http://www.npr.org/templates/story/story.php?storyId=4516908 THE LAST PLAN B DOWNLOADS With the release of Motorbyckle and Intermission, we come to the end of Plan B downloads. The album will remain up on the site for you to download and share. Enjoy! For more details, check out our web site at www.thermalandaquarter.com (just a warning: the site may be slow as there are plenty of downloads after the broadcast). RADIO GA GA! We rocked Bangalore mighty hard on Saturday, February 26 at the Airtel-Radio City Live Chapter 1 gig in Cubbon Park. Our interviews were broadcast before and after the gig on Radio City 91 FM in Bangalore. That's all we have for you to munch on... keep downloading Plan B! peace. TAAQ From oli at zeromail.org Wed Mar 2 20:36:21 2005 From: oli at zeromail.org (Oli) Date: Wed, 02 Mar 2005 16:06:21 +0100 Subject: [Commons-Law] digital inequalities Message-ID: Dear all, here is a proposal for what could be called "digital inequalitities". Best, Oli Leistert ---- Digital Inequalities Abstract The following text raises questions about digital dependencies and inequalities. Most agendas of development work and computer literacy see their goals in a distribution of computers and relating hardware. « Computer » here is seen generally as a means for empowerment, as a means to access resources of knowledge and as a means for building networks. Left out, whether consciously or not, is a critical reflection on the product « computer » and the accompaining regimes of computer products. This text argues, that a distribution of computer products such as Microsoft through multiplicators such as NGO's does not diminish digital inequalities, but, in a way, extends them. With the distribution of a black box, such as Microsoft Windows, a profound empowerment is prevented, not inforced. The users of these software bundles are strictly depending on the proprietary product. With this kind of distribution of computers, the misleading and wrong equation « Computer is Microsoft » is transported as a gospel, or ruling motto, into rural areas. The second issue this text discusses is the general accumulation of data in a digitally connected environment, that confronts our everyday life more and more. This world of data is produced by us while we are acting the way we always used to do. Our acting gets more and more translated and transported as data into a dataworld, mostly without that we know about it. Wireless networks connect everyday life (mobiles, smartcards in the metro, payback cards while shopping) and produce a counterworld, that consists of data, intangible and purely informational. This data then feedbacks into the real world, into everyday life, structures what we do and how we do it, sometimes even determines it. Digital inequalities belong to a world of patents, licences and copyright protection The digital divide saga goes roughly like this: the poor on this planet do not only have not enough to eat, no, (even worse) they they don't have computers. And not having computers seems to be the reason, why they don't have enough to eat. Other reasons of their poverty, or of poverty in general, are not touched or even considered in this discourse, because development aid is not about questioning the political agenda where it gets its money from. The analytical gap is being replaced by a simple equation: once the poor have computers, they have access to information and with that, they have access to resources of knowledge that will help them escape their poverty. This tale of progress through technology is being used to implement new dependencies, dependencies that are of an old kind, but with a new look. Digital dependencies emerge, when western commercial products, such as Microsoft Windows, are being introduced as bringing salvation in communities of the paupers. The dependency consists of not more and not less than the usage of a commercial product, including the introduction of such concepts as licenses, copyright regimes and patents. And, maybe most important, the introduction of what a computersystem is, or seems to be: a commercial product. A deep rooted equal computer system would be one, that allows full control over its usage, distribution and changing in any way, including improovement. An equalitiy would allow free choice of applications and the possibility to deny the usage of some. So, digital inequalities can in part be seen as a result of a society, that is shaped by commodities, where social interaction is replaced through an exchange of commodities and of a society, where important tools are « protected » by regimes of copyrights, patents and licenses and where a huge political, juridical and police apparatus takes care of this. These regimes successfully prevent any emancipation of the consumer to a user controlling his/her means by her/himself. This is applies to the west as to any other region (although, surely, there are big differences, the main line stays the same). A licence defines the terms of usage. It prohibits that the user appropriates the products in a way not being intended by the manufacturer of the product. The product is not intended to become a thing amongst others, which is being determined by the user. Licenses somehow guarantee the determination and limitation of the user. A different example of digital inequalities is much deeper situated in the logique of software products: no matter the customer is allowed to use the product in a way different from the licence agreement, software products (including the software running on mobiles) can hardly be changed into appropriated means. The interface design is strictly determining their usage. It is not open to any change. Also, the product does not need to even inform the user about what else it does. By offering the services mentioned in the licence, the product fullfills its requirements the user has paid for. The contract between user and manufacurer is not about any activities of the manufacturer, but solely about the user's. So, the product may have interfaces and communication channels to a third party, without even informing the user. The SMS-channel provided by mobiles is such a case, where a channel, initially made for technical services as checking remotely the functionality of the mobile, has become popular means of communication, sold seperately. Letting connected digital devices give feedbacks and transmit data, with or without notifying the user, is the contempory challenge of the majority of IT-companies. Their goal is to build an environment, an ambient, that permantly transmits data about « events » in real time. The Rfid-technology (link) is such a case, where little computers, that transmit data, are being attached onto or implemented into any possible thing surrounding an individuum, or carried by the individuum. A different approach of bringing together offline and online worlds is made by the consortium that tries to establish « Trusted Computing » . They don't even try to hide their ambitions: a complete control over any connected personal computer, including the possibility of remotely deleting files, if « appropriate ». The history of these kind of plans shows that totalitarian goals usually fail because they underestimate the complexity of reality. But on the other side, if the transnationals make a combined effort in a connected world, one should not underestimate their will and power to solve the « problem » of pirated media and what else they have on their agenda. With the emergence of a counterworld and its computational infrastructure, everyday life is being more and more confronted with a data accumulation innaccessible for most. A kingdom of information for governments, authorities, companies, sales persons and so on, beyond any legitimation. Everyday life produces a counterworld What follows is an example of RFID-technology, that shall serve to explain the impact of a digital black box computer in everyday life. The first part of the Delhi Metro is on service for a couple of months now. This line goes from east to west, connecting the city devided by the river Yukamo. The Delhi Metro has been equipped with a complete computerized ticket system by french global player Thales. It offers to types of « tickets »: one for the single or two-way passage, and one for multiple passages. The ones for the single/two way passage are looking like plastic coins, manufactured by Sony (CHECK), they go uner the product name RC-S 890 and have a diameter of 30mm, are 3 mm thick, and weight 2.7 gramm. They contain a small computer with an antenna. They have themselves no power supply (a very important aspect of RFID-items), but get their energy through field induction from a reader-device. Between the « Ticket » and the reader-device, that is integrated into the barrier one has to pass to reach the platform, an intense data traffic takes place: the computer is activated by induced energy. Then, the reader reads the data on the « ticket » that has been stored on it. The system now knows which smart token has been purchased, for what passage and when. Possibly the smart token stores data given by the reader: the reader might store place and time of passing the reader on the « ticket ». The communication between the two runs on 13.56 Mhz. Both, token and card are working within a so called close coupling distance (distance from reader not more than some centimeters). The smart token has a memory size of 576 bytes. This Eeprom-memory can be overwritten up to 50.000 times. These coins, which have to be placed near the barrier before every passage, open, if valid, the barriers and the commuter can proceed to the platform. After the passage, they are thrown into the barrier again. And depending on the passage done and the one paid for, or better: depending if the passage done is compatible to the one reserved for the commuter by the system, the barriers open or don't open. The traveller does not get any material proof of the passage, like the paperticket in the old days. The tickets are bought at the ticket counter, readily configured for the announced passage. A spontanous prolongation of the passage is not possible without somehow embarrasing procedures at final station. The ticket system notices the change of passage and the yatri gets punished with high attention by the uniformed employees. Furthermore, only a limited timeslot is open for the passage. If the yatri leaves the train in between and discusses with a fellow the pro's and con's of the Delhi Metro and then continues the passage, the timeslot will be closed and again the uniformed personal will pay high attention to this yatri. This high attention mostly leads to a rising deprivation of the yatri, She/he is now a disturbing subject, at least disturbing the continuous flow of the other passengers at the gate. With the total electronic control, no manual control and no spotting of faredodger is necessary in the trains. This means less employees and the end of a possible economy not fully in the hands of the Delhi Metro Transport Corporation (DMTC). Supposedly, full control of metro usage is done over two different stages: purchase of ticket at counter and barrier/reader-device. As some uniformed employees always hang around at the barriers, it is hard to jump over them - a sport of civil disobedience very popular in several western old metro systems. It's even harder, as two barriers have to be passed: at the beginning and the end. The uniformed employees are mere appendixes of the digital machine: they are getting active when the machine tells them to, by sending off alarm clock like sounds that changes the whole place into a location of emergency. One detail, that arises from the fact, that the tickets are computers, is the fine of RPs 100 one has to pay, if the « ticket » is not used for travelling but taken away, removed out of the closed system of the digital machine. It is not allowed to do this, because these « tickets » are far too expensive. They cost far more than the prize for the passage. A smart token ticket system only pays off, if each token is used some hundred times. Only then it is cheaper than the classic paper ticket system. To prevent « theft » of tickets, the DMTC has invented so called « souvenir tokens », simple plastic coins without any computer inside, for 4 rps, that can be taken home by fans of the metro. That it does not contain a computer might not matter, as the computer is invisible anyway. The contactless data traffic does not feel very technical, more magic. While purchasing a paper ticket in a classical metro system, it is still the passengers decision to make the journey or not. In the case of the RFID-System, the passenger has to do the passage or to give back the ticket at the counter. The second type of ticket offered by the DMTC is a plastic card in the size of creditcards. It is intended for those who commute frequently and can be obtained for a deposit of one hundred rupees, which comes close to the actual prize for the product on the market. This smartcard can be charged with data that represents money, from 50 rps upwards. The usage is identical to the usage of the tokens (but you keep it and don't throw it into the slot). Some commuters have invented the practice to keep it in the wallet or bag and to hold the wallet against the reader, which works fine as long as the wallet or bag does not contain too much metal. The value « on the card » will be shown each time the card is read. A little discount is given for users of the smartcard, which means that two classes of users are invented, token user and card user. Whoever has enough money to pay the deposit and at least 50 rps gets rewarded with a discount. Technically seen, the « metrocard » is more sophisticated than the token. It is again a product by Sony, called FeLica, most reasonably the type RC-S833, made out of PET-plastic. The Computer has an 8-bit RISC CPU with 1.2 kbytes usermemory. The most important difference is the Triple-DES Encryption Algorithm the CPU is equipped with. This Encryption is used everytime the card gets read by the System. It prevails the « illegitimate » charging of the card. The metrocard can be used as an electronic wallet, and some shops in the metro stations supposedly accept it (I haven't tried). Whether token or card, both are computers, and being a ticket is just one possible application. It can also be said, that they simulate tickets. The smart ticket system offers online statistics about the metro usage, because every single passage is tracked by the system. This is a manager's dream, a real-time analysis of such a complex company. The possibility of real-time analysis lowers operational cost and increases profits. Information is of big value for companies. Today, a lot of products, from toothpaste to milk, have toll-free number printed on, that can be called by consumers. « We want to know what you think about this product! » Sure they want. And while this kind of feedback is based on free will, other feedback channels have emerged which are much more subtile and imperceptible: City Bank's PayBack card reports every item purchased to the members of the Payback consortium. Customers Cards by chains are a different example. They provide special offers or discounts, which shows how high this kind of informations is valued by the chains. But in all these cases, it initially was a decision by the customer to be member of the « club ». This is different in the case of the Delhi Metro. Every commuter is being reported in real time. >From the operator's perspective, the ticket system provides a complete picture of the metro usage, from its first day of operation on. Every token or card, that had been connected to the reader, gets storaged. So, for exampe, no inspectors in the trains are needed anymore. Also, the expansive and inexact counting of passengers, still seen in older metro systems, is outdated. The system counts everything itself, or better: by counting it works. Every metro station is connected via fibre cable or satellite dishes with the central server. The metro operates its own, closed network, no local business is envolved. The central database, run by a software system thats main target is to eliminate costs (SAP, the neoliberal's dream), contains each single passage: time, places, durage, which token or card used (they all have unique numbers). The software generates daily analysis of each stations usage, routes taken. The metrocards are not personalized, but as video pictures from each station are also transmitted to the headquarters, tracking of each single yatri is fairly easy. The commuting behaviour of each metrocard can be visualized with a mouse click. Okay, well, somehow interesting this, but tell me: what has this to do with digital inequalities? Every yatri produces data during her/his voyage, without knowing about it. No one informs the yatri about this, not during « ticket » « purchase » or by a leaflet handed out. The signs in the stations inform about video surveillance and not to touch unknown things. It seems as if the data is not a matter of the yatri, who produces it. This raises questions of ownership: whose data is this? Doesn't it belong to the commuter? Or should not at least the commuter decide what this data is used for? In the case of the Delhi Metro, the yatri has no possibilities to interfere into the production and usage of his/her data. The Metro System needs the data to operate, so the data is an immanent part of the metro. Any questioning of the data production means a questioning of the whole metro system. The only possibility to avoid data production is not using the metro, definitely not a good choice. The Delhi Metro has implemented a data regime, that is immanently connected to the metros functionality as a transport system - real world and virtual world fall together. Digital inequalities consist in this of the asymmetric dataworld. No influence possible on the data produced and the way it is used. The way to any surveillance scenarios is paved. But even without this in mind, the data production is highly questionable: who has legitimized the DMRC to maintain a total data collection of their passengers? Can this be legitimized by the system itself? A technology, that has implemented such features as being necessary for operation is frightening. What if the next generation cars only move, if a real time data stream is up and running? In a wireless connected surrounding, the real, physical world of moving objects produces a virtual, informational world, a distorted mirror. Simultaneously and in synchronity this mirror is build. But while the real world is fluid, passing, fading in its stream of time, the virtual world is of very different character. It consists of incoherent, but continuously generated data, that does not fade away in time. It is an evergrowing accumulation of discrete « moments », that, as data, lack the sense of time humans have. Data is omnipresent. The virtual world collects passing moments and preserves them for signification at any possible time in the future, in a reductionist way, as data never represents the qualities of real life, the overwhelming number of impressions and emotions one connects with moments passed. The virtual world is a homogenized substratum, lacking any sense of time. It can haunt the real world at any arbitrary moment by « prooving » long forgotten situations or constellations. The temporal disconnection and, with that, the shortage to an everlasting present is not only of philosophical interest. Nothing less but everyday life is affected by it. The virtual world affects everyday life as an objective narrative Although much poorer in sensual qualities and details, which makes the world surrounding us so interesting, the quality of total objectivity is attributed to the virtual world. This total objectivity is also seen as universal, meaning the same anywhere at anytime; the « pure truth ». This authoritarian style data, being always correct, echoes the politics of those who are building it: technicians, engineers, scientists, and authorities of states and companies. White male's dreams of omnipotence rule the data world. A well trained view from above, learned through centuries of « neutral » science and thinking, a god's view. The data world is independent of local bindings. It is a register of a divine almanac, never to be questioned. This objectivity is unquestionable, as there is no locality to question it from. It lies beyond the living world, a dead(ly) objecitivity. This doesn't mean that any data is evil or forever lost in bad politics. But being in the hands of those, whose interest is control, government, surveillance, optimization, cost reduction, the virtual world helps generate images of the real world, that are reduced to parameters belonging to such regimes. The output, the generated view on the real world, always appears to be true and unquestionable, independent of how contingent the meanings given to it are. While emotions and other not quantifyable matters structure the signification of everyday moments, and truth and objectivity are of secondary interest, this relation is upside down in the virtual world. Data of total objectivity generate the meanings of moments. The parameters used for these operations are contingent, maybe even senseless and incomprehensible. They are set by the operators of the system, by the managers, politicians: they generate a world of theirs. The « real » world is being generated from scratch on the basis of datasets, replayable in any contingent way, objectified by computers. A good example is the weathershow on BBC World. A colourful ball appears on the screen, that represents the « world weather » of, say, the last 24 hours, and some gray spots hurry around it. We are feeling comfortable with images like that and hardly notice, that the picture shown by BBC World can not be seen by anyone on earth. It is generated from the virtual world's data and narrates something about the real world, that is computated out of billions of data sets. We are all astronauts, aren't we? The virtual world acts normatively on the real world because of the objectivity awarded to it. The power of the virtual world to generate reductionistic perspectives, views, diagrams, cross-sections by any possible criteria, that are always true, but never representing something experienceable in this abstract and contextless way, alienates the real world from it self step by step. Endless generating of « real » worlds by the means of virtual worlds change every real world substantially. The virtual world is a misguided mirror of the real world, in which the real world never can regain itself. In its reduction to some few parameters, the virtual reduces the real, that bows to it, anddeclares its own richness of images, imaginations, emotions more and more irrelevant. The virtual objectivies the real. The accumulation of data in a digitally connected world generates a counterworld, immaterial, informational, of ruling objectivity. It structures the real, it economises the real and sorts it by contingent, undiscussed criterias, that reflect the thinking of those who have access to it. To trace, to govern, to control, to collect, to calculate, to divide. Quantifyable kingdoms, pure and clean. Classes, modules, segments, parts. Most of the time, we don't even notice the production of the counterworld. The striking thing is, though, that it is us who produce it. Without movements of objects, of transactions, of sounds and any other dynamics, no data would be produced, at least no data of interest. Our actions are connected only one way: into the virtual. The stream goes unidirectional, away from us. It is only on special occasions that we get an impression about the accumulation already done, about datamountains and informationrivers. We are kept away from the data we produce, as if they had nothing to do with us and as if they would not feedback into our worlds. It is an inequality of prominent kind, that our data are present in an unaccessible counterworld, always about to interfere into our lifes. Besieging our lifes with meanings generated by others, meanings we only can react on, mostly helpless as the meanings comes in an objectified form. Personalized data are suspected to be the most problematic data, as a counterimage of a single person is made up with it. But personalisation of data at least offers some advantages: a personal reaction is possible, it is much easier to adress the problem of personal data storage and ask for access to it. Unpersonaliszed data, however, are in a way a much bigger challenge, as they also feedback onto single lifes, but on a different, bigger scale. It's much harder to comprehend and critize their effects, as they act on whole segments of societies. An overwhelming case of building constant data flows into the counterwelt is RFID-technology, pushed by huge transnational companies. They dream of a permant data emission by individuals and their objects. Putting life online. A doubled world of data. Digital inequalities are basically productions of data, that are caused without the consent and knowing of the individuum, that uses digital devices such as Personal Computers or the Delhi metro « ticket ». When Microsoft promotes the connection of every earthling to the net, in collaboration with huge development agencies, their goal is not to fight digital inequalities, but to gain control over its definition. Unconnected people are not of interest to anyone, like unaccessible islands. To connect them means to connect them with and to an unequal digital world, like it is done with the wide distribution of MS Products through NGO's. Connection is always designed by third parties. In the case of most NGO's, a connectivity and computer distribution is promoted, that is designed by one of the largest companies in the world. While the small tokens of the Delhi Metro are hardly to be recognized as computers, the personal computer is the most significant incarnation of a computer, and what is striking, always with some proprietary software by a single company running on it. But this is without any proper reason, as the GNU/Linux solution offers an open operating system free of charge, completly controllable by the user and changeable in any imaginable way. This is a setting, that reduces digital inequalities from the ground. Once the technical knowledge is spread, the computer is under control of those, who should have it under control: the users. Meanwhile, every single newly distributed MS computer only reinforces the reign of Redmond. As the information politics goes, new user even don't get told about alternatives. The equation that MS is computer is being passed on from generation to generation, like some religion. Some argue, that MS is easy to use and that its desktop is the entry to computer literacy. This is an interesting claim that internalizes an element of IT-politics that has undoubtly successfully been brought into people's mind: the problem of the difficult machine and how to solve it. Computers are some of the most complex machines build by humans and their power lies in their ability of calculate in such an enormous speed, that the calculation can be used to generate representations as graphics, sounds and so on. But this computational power has also produced fear and anger at computers. To make them a mass product, it was necessary to give them a human-touch look. The promise of simplicity Computers are of complex and difficult matter. 25 years ago, computers were part of the world of experts. These experts were and are educated to understand the processes inside the machine, to configure and programme it. To operate such a computer was difficult and laymen had lots of respect for these machines and their commanders. These were understandable fears of contact with these modern, eerie machines. Images of machines ruling human kind were born and entered the world of science fiction. Today, the computer has become an everyday item for a lot of people and it can be found in many offices and at home. Fear of contact has been reduced and the computer has become an integral part of contempory life, in many places of the world. Like radio and television, one can't think about life without it. But still, computers are complex machines. Nothing has changed for that. Still, their inner processes are only understood by experts. What has changed and what made them such a big success is their surface, or better: its design. With a little training, one feels comfortable with this surface and one gets the impression to understand a computer. Though, one has « only » become a user. Computers with desktops such as Windows are made to look easy understandable at the price of not letting anyone know what really happens inside. A promise of simplicity is being given, that builds trust between a higly complex machine and a layman. With this promise of simplicity, people get initiated into a colourful world, that provides any means for the consum of digital products. Through this simplicity, the computer as become a mass product. But behind the surface, the complex machines still operates in the same way as 25 years before. And everytime the machines crashes, an event of regularity, some window pops up that « tells » about errors that happened in the most cryptical way. In this moment, the user is helpless and experiences the fragiltiy of her/his relation to the machine. In these cases, the computer proves its power over the user. But this is only because it was build this way. Microsoft has no interest in any other relation. Their software doesn't allow more than a superficial knowledge of the machine. Errors are not to be solved by the user, but by the hotline, an expensive service and integral part of the product. The user's dependency on the manufacturer and other commercial services is part of the game. The user's kingdom ends with changing the background colour of the desktop. In this ambivalence of computer complexity and the politics, to connect everyone to the internet through pretending computers are simple, a digital inequality emerges. The prize for simplicity is a black box, a product that treats the user like a child. The metaphor of the desktop had helped to spread the equation MS is Computer. The politics of making people using computers, whether they need them or not, with the promise of simplicity, has the goal to reduce the number of those, that have been left out of the computer world so far. In the west, these are the older people, the last analog generation. As the market reached its limit in the west, the targetted number of people had to be increased. The retired people are mostly wealthy (they gained the fruits of 60's and 70's social system), buy laptops and search the internet for information on old age illnesses. In the computer courses they visit, they learn how to make spreasheets with MS Excel and other weird things, but no one tells them about Linux. The retired in the west are the rural people in big parts of Asia. While the cities and towns offers internet services in so called cybercafes, NGO's try to bring the computerblessing to the countryside. Main reason is the argument, that computers increase knowledge exchange, that a network of computers also helps to build a network of humans, and finally, computerliteracy is seen as empowerment. This all might be true, even if the computer itself serves also as a fetish that makes people move. The problem is the computer system the NGO's introduce, as it is most of the time MS Windows. They introduce a western regime, that finds its expression in the equation MS is computer. It would be an easy task to qualify a person to administrate Linux machines. Doing this, the network could easily add applications for free and change their own system in any desired way. This autonomy is not intended, supposedly. The agenda fighting the « digital divide » is not an agenda for digital independence, including operating systems and applications. Moreover, the goal is to redo what has been done in the west before. The distribution of western products through NGO's might not be a reflected part of their work. Having the same computers in their offices, why should they distribute Linux to the rural people? Multiplicators such as NGO's are the vehicles to promote the de facto monopoly of one software company. The Desktop-metaphor was one of the most striking events to make the computer a mass medium, followed, of course, by the internet. By succesfully pretending that knowing how to move a mouse and clicking some windows means being able to operate a computer, millions of computers have been sold to people lacking any sense of the machine. But the illusion soon gets into trouble when the first time one of those well-known and weired messages appears, telling about something happening deep down inside the machine, completely in cryptic language. This is where the metaphor of the desktop ends and where the users dependency begins. Knowing how to change the colour of the desktop's « background » doesn't help here. Microsoft is not letting anyone understand the inner states of the computer. Two kinds of PC's exists: unequal and equal ones. The unequal ones are more popular, because they seem to fulfill the promise of simpleness. But also because the unequal ones are being promoted by a huge apparatus of politics, bureaucracy and administrations, not to mention economics. The whole machinery of patents, copyright, commodities, licences, that comes with an unequal computer, feeds the power of these promoting agencies. The entertainment industry finally depends on a machine that can not be controlled by users themselves. How heavily armed this destructive apparatus of control and moneymaking is, shall be shown with an example not entirely realistic today, but very much in a couple of years: You switch on your comp and open, as every morning, your dairy, a file in MS Word. At your surprise, a window pops up that announces some irritating message: « Your license to use this MS product has expired. To renew it, please visit microsoft.com .» And the application closes. You think you are smart and you start OpenOffice, an alternative some computer geek once installed on your comp. OpenOffice can import doc. files, so what's the problem. But instead of your dairyfile, again some message pops up: « This file's license has expired. To renew it, please visit microsoft.com » This time, you start feeling a bit worried. Not knowing what your computer does and always living in a subliminal state of panic to loose data while using it, is normal for you, but not having access to some of your most personal data is a new chapter in your computer dependency. You worry even more, in fact start being hectical, as the same happens when you doubleclick your Phd-Thesis, that is almost finished. Also every letter you have written is inaccessible. There seems to be no other possibility but to « visit » the mentioned website and hope for help. This takes longer than a coffee break. You are being requested to submit a whole bunch of personal data concerning your person, profession, income, creditcard number and more of the kind that is absolutely unnecessary to male your MS Word work again. After having gone through this striptease process, you doubleclick a small « OK »button on the website. To your surprise, an even more worrying text appears: « According to the Trusted Computing guard, your computer system gives host to the following applications without any licence and therefore illegally. We remind you that computer piracy is a criminal act: MS Paint Adobe Photoshop QuarkExpress All data, that has been illegally generated with these applications has been deleted from your computer. In case any other files carrying the signature of these illegally used applications are circulating on the Internet, they will be deleted successively, too. Also, the applications themselves have been deleted. You have infringed copyrights and licenses of Microsoft and other companies by installing and using these applications. It is possible that you have caused severe financial losses for these companies in doing so. Please expect a legal case taken against you. The renewal of your MS Word licence is valid 18 months. We will withdraw $ 293 from your account in the next 24 hours. Thank you for using Microsoft! » Paths to digital independence This scenario of expired dairies does not seem real since until today, there has always been a way to use pirated software. But this time, the past is not much helpful to evalute the near future of computers. Cracking of programs and the old liberal times of the internet are about to be replaced by strict regimes of control. Since 11/9, nearly every government implemented laws and regimes to control the flow of data. The authorities are prosecuting the sharing of music files in the name of antiterrorism. And they monitor the data streams. They store terra bytes of data. Automated filter software works its way through myriads of information, sorting things out by any criteria imaginable. The governments oblige internet service providers to hand over log files without telling their customers; in some countries, the authorities even have direct access to the ISP's internal data. The governments are driven by the reduction of liberties on the net. In a networked world, things have to regulated properly. And it does not take much manpower to do this, since data is processable by computers easily, even such large quantitites as the daily internet connections. This counterworld, being generated in the name of counterterrorism, produces new suspects and delinquents en masse and en passant. Computertechnology has began to tyrannize everyday life. Every citizen is a possible bad guy. But it is not only governments, that have put the counterworld on their agenda and make intensive use of it. The « Trusted Computing » consortium is about to change the Personal Computer from an autonomous machine to a mere appendix of software companies, content providers and entertainment industries. Intel, Microsoft, HP and others invest huge sums to convert the PC to a device, which they can trust. This has nothing to do with a secure computer for the user. The trust is about total control of what is running on a machine under conditions dictated by them. The biggest inequalitiy so far in the digital domain. A sophisticated implementation on hardware level of algorithmns, that ensure proper payment and licensing, that will not be an easy case for crackers and hackers, if at all. The goal is to define, what the user is allowed to do with her/his comp. This control is only possible through a huge connected infrastructure such as the internet. This computer is definitely not a good place for storage of relevant personal data. This computer has become an outlet of the transnational company. Today, the question is not to have or have not a computer. Today, the question is how a computer can be used, without being a data producer for governments and companies. It's about the liberty to decide which data one produces, where it goes and who can access it. It's about the one's self-defined usage of a technology, that holds immense means of empowerment by its huge range of applications, whereof email is the killerapplication. If it is right, that a networking computer is a means of empowerment, than all the big players involved are trying to take control over this empowerment, cutting it down to dependencies and consumerism. Microsoft does not wait until NGO's start to distribute Linux computers. They take care of it themselves to explore new markets, with the aid of agencies like UNESCO. A developing world that develops with Linux is a a nightmare for the big players and would mean the end of the neverending growth of their market shares. China, India, most parts of Asia are about to be computerized. A huge market emerges. Every engagement of Microsoft in Asia is part of a fight against national IT-solutions and Linux. The WTO and other neoliberalist structuring regimes are the instruments to fight any development in the IT-sector that differs from the past ones. But digital inequalities are no natural laws. They are manmade and can be changed by man. It is not advisable to seek help from governments, companies or even NGO's. Digital independence is for the most part selfmade and self empowerment. It doesn't matter to have the latest Computer model. Linux runs on every old machine just perfect. And a computer that has the « trusted computing » hardware implemented can't be trusted much. As digital inequalities are not primarily depending on levels of « development », but on levels of self empowerment and consciousness, digital inequalities are not only subject to the « developing  world ». It doesn't cost much money to operate a comp that gets upgraded regularely and is well documented. Only pay for the Hardware, never for the Software, since Linux is free. Uncountable online-sites contain helpful postings and discussions on technical problems. Most of the times, people answer ones question very fast, because helping others to empower themselves is fun. Linux supports willingness to help. It is pretty easy to encrypt your emails. Noone but you and your communication partner will then be able to read it. The manuals for PGP and GPG are all out there. To encrypt your email it comparable with the usage of an envelope in classic mail. Any non encrypted email will automatically be prossessed by huge keyword search machines, storaged in databases and maintained for possible later use. It doesn't matter if your mail contains secrets, poems or whatever, because it simply isn't anyone's elses business to know the content. What would you say, if all your paper mail letters arrive with an open envelope or if the postman would tell you what your mail contains today? The payments by creditcards, bankcards or any other smart cards is being pushed because it provides two simple advantages for companies: it is cheaper, as cash is cost intensive and always a risk and it provides a flow of data that enters into the counterworld. It is still fairly easy to say no. Use cash where possible. Everytime you choose electronic payment, you let a third party participate in your business and you expose yourself to a situation in that you don't know what happens. A similar case are RFID chips, that emerges more and more in everydaylife. They might be attached to products in the supermarket, to CD's in music stores, and they have already been sewn into clothes. They garnish medical products and are present in systems like the Delhi Metro. Spare parts for cars or mobiles, printer cardridges and other items are identified through their unique number and they have been used to tag dead bodies after the tsunami in Thailand. RFID is a technology for different purposes and usages and there is not one single way to deal with them. They will appear more and more in very different situations of our everyday life. Each specific usage needs its own reflection. There is not a single solution for or against it. But what they always do: they partake in the accumulation of data for the counterworld. In a world of data transmitting things, more and more problems arise for people that want to decide about their data themselves. If companies make it to introduce RFID more broadly in the human environment, we face a counterworld, that can't be ignored by anyone. Through the huge concentration in the food sector, the global players can easily do what they want to. RFID is the effort to eliminate any self-defined data environment. This won't be total, but still troubling enough. To raise consciousness against any data transmitting environment is still a good move, as the business has just started. And as long as the promissary rhetoric of progress and a better living is being used by its promoters, it is fairly easy to expose the myths. The intelligent fridge, that notices a shortage on milk and orders two more litres is not a picture that convinces anyone to switch to this technology. But tracking of pets with GPS devices is a reasonable succesful attempt to introduce a complete surveillance scenario into everyday life. Improvement of security is the keyword of such interventions. But the same actors that are responsible for the condition of everyday life are not trustworthy at all. Some sources, that have been helpful writing this: A good introduction on the Trusted Computing project: http://www.cl.cam.ac.uk/users/rja14/tcpa-faq.html How Microsoft describes its engagement with NGO's itself: http://www.microsoft.com/mscorp/citizenship/report/digitalinclusion.mspx The wikipedia page about RFID: http://en.wikipedia.org/wiki/RFID The GnuPG site, email encryption software: http://gnupg.org/ One big source of (coorporate) information on RFID http://www.rfidjournal.com/ From anivar.aravind at gmail.com Fri Mar 4 08:13:45 2005 From: anivar.aravind at gmail.com (Anivar Aravind) Date: Fri, 4 Mar 2005 08:13:45 +0530 Subject: [Commons-Law] Fwd: [Fsf-friends] Our response to the Patents (Amendments) Ordinance, 2004 In-Reply-To: <4227C7FF.3010707@gmail.com> References: <422668F8.70308@gmail.com> <876508d4wh.fsf@vaishnavi.localdomain> <4227C7FF.3010707@gmail.com> Message-ID: <35f96d470503031843658c58dc@mail.gmail.com> ---------- Forwarded message ---------- From: Ramanraj K Date: Fri, 04 Mar 2005 07:59:19 +0530 Subject: Re: [Fsf-friends] Our response to the Patents (Amendments) Ordinance, 2004 To: Principal Support List of FSF-India Vijay Kumar wrote: >Ramanraj K writes: > >>http://www.indianexpress.com/full_story.php?content_id=65640 >> >>Please post any links, articles, views or opinions that could help in >>voicing our concern against the proposed drastic amendments to the >>Patents Act. >> >> >Are we not too late? > Our response to the ordinance is enclosed below. It is now clear that the Patents (Amendment) Bill, 2005, to replace the Patents (Amendment) Ordinance, 2004 (No. 7 of 2004) promulgated on 26.12.2994, would be taken up during the first part of the Budget Session, 2005, and the same would be placed before a Standing Committee for further discussion upon the Bill. Please feel free to comment on the representation prepared earlier, so that we may send in better demands to the Standing Committee. Please confine this thread to the amendments proposed to Section 3(k) *only*, which is of immediate interest to the FSF India. The others amendments are more serious and will surely ruin life, but they have to be dealt with separately. Thanks, Ramanraj. __ ** Representation made by the Free Software Foundation of India to the Government of India to immediately withdraw THE PATENTS (AMENDMENT) ORDINANCE, 2004 (Ordinance No. 7 of 2004) with regard to amendments made to Section 3(k) of the Patents Act, 1970 Introduction: The Free Software Foundation of India is a non-profit organisation promoting the development, awareness, and use of free software in India. We are very concerned about the recent amendments made to the Patents Act, 1970, by the Patents (Amendment) Ordinance, 2004, amending the provisions with regard to computer programs as follows: "3. In section 3 of the principal Act, (a) in clause (d), for the words new use , the words mere new use shall be substituted; (b) for clause (k), the following clauses shall be substituted, namely: (k) a computer programme per se other than its technical application to industry or a combination with hardware; (ka) a mathematical method or a business method or algorithms;" Allowing patents over any kind of computation seriously harm and hamper the creativity, productivity and freedom of all, particularly software developers while writing code. Many organisations, including the Free Software Foundation have been campaigning against software patents the world over. We are shocked and surprised that amendments to the Patents Act, 1970, with regard to computer programs, should have been introduced so suddenty in India, by a Presidential Ordinance, without any public debate or prior announcement at all. We hope this memorandum would restore the status quo as quickly as possible, for all the following reasons: 1. Amendment is ambigious and capable of easy abuse and misinterpretation: Though under the amended clause (k), computer programs per se continue to be not patentable, the exceptions made thereto are not clear. All computer programs work in combination with hardware, and all computer programs have technical application to industry, particularly to the software industry. A literal interpretation of the amendment with regard to computer programs is dangerously misleading, creating the impression as though any computer program is patentable. However, the Ministry of Commerce and Industry has made a statement to the following effect at http://pib.nic.in/release/release.asp?relid=6074 "In IT, the trend is to have software in combination with or embedded in hardware such as in computers or cell phones or a variety of other gadgets. Software as such has no patent protection (the protection available is by way of copyright); but the changing technological environment has made it necessary to provide for patents when software has technical applications in industry in combination with hardware. This has been a demand of NASSCOM." There are significant differences between the statement made by the Ministry of Commerce and Industry and what the ordinance actually says, and the intentions are not apparent from the wordings used in the amendment. However, even assuming that the provisions of the Patents Act have been amended to enable and make provision for only embedded software, which is a very vague term, it would make in roads into the freedoms and liberties required by software developers to peacefully continue with their work and services. Any special provisions providing for patentability of computing or computer programs under the category "embedded software" is needless, and bad because: (a) The classification of computer programs into embedded software and others is very superficial. The key advantage in using computer programs is that logic can be re-written without re-wiring or physically modifying hardware. Invariably, it is easy to re-write, copy, improve, and modify computer programs, and it is quite possible to extend the life and productivity of hardware devices that are manufactured using scarce non-renewable resources, merely by modifying the computer program. People can, and often do, install new software on embedded computers particularly when the source code is available or to improve usability of hardware. (b) The classification is arbitrary and opposed to principles of equality, and the very objects of the Patents Act. Let us take an illustration, for example a computer program named `foo'. It is clear that foo is not patentable per se, under the amended clause (k). But then, foo, in its technical application to industry is made patentable. The classification, based on mere usage, making foo an invention only in "its technical application to industry", has no rational nexus to the object of the Patents Act, and plainly violative of Art. 14 of the Constitution of India. One of the avowed objects of the Patents Act is "to ensure more effectively that patent rights are not worked to the detriment of the consumer or to the prejudice of trade or the industrial development of the country". Introducing patents for any kind of computer programs is detrimental and opposed to the objects of the Act. The question how software patents are detrimental and harmful is elaborately analysed and discussed at http://lpf.ai.mit.edu/Patents/industry-at-risk.html 2. Amendment is opposed to Article 39(c) of the Constitution of India: The Directive Principles enshrined in the Constitution of India, under Chapter IV. Article 39 reads as follows: "39. Certain principles of policy to be followed by the State.- The State shall, in particular, direct its policy towards securing- (a) that the citizen, men and women equally, have the right to an adequate means of livelihood; (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;" The software industry largely earns revenue by providing custom services, and by introducing patents for embedded software, the software service providers would be hampered by needless claims, litigation and other un-productive disputes that cannot be easily resolved. Patents for embedded software would lead to increasing concentration of wealth and means of production to common detriment. It is well known that Bill Gates of Microsoft is the richest man in the world, and the patent regmime would only go to promote the riches of the richest. We have no hesitation in saying that the needless hair splitting of computer programs into embedded/non-embedded will only entangle the Indian Software Industry in litigation, obstructing progress to common detriment. Other harmful consequences of the amendment: The amendment would disturb the peace prevailing in the software field, and may raise contentitious disputes between various hardware manufacturers, software developers and entities, resulting in loss of peace in the first place, coupled with loss of revenue and other damages. It would undermine the peace of mind required by software developers to write robust code, robbing and sapping energy away to indulge in meaningless patent searches and other needless exercises, that are totally not suitable for the software industry. The amendment would only increase the cost of developing software, and take away all the advantages that India has enjoyed so far in the embedded software field. Conclusion: Rabindranath Tagore, in his Gitanjali, wrote: "`Prisoner, tell me, who was it that wrought this unbreakable chain?' `It was I,' said the prisoner, `who forged this chain very carefully. I thought my invisible power would hold the world captive leaving me in a freedom undisturbed. Thus night and day I worked at the chain with huge fires and cruel hard strokes. When at last the work was done and the links were complete and unbreakable, I found that it held me in its grip." It is trite to observe that the amendments imposed will without doubt chain and cripple the software industry in India, pushing the industry into the dark dungeons of doubt, confusion and chaos. It is very strange that NASSCOM should have invited the amendment, without taking into consideration the serious harm and danger patents for embedded software pose. We strongly urge the Government of India to immediately change its sudden reversal in policy, and withdraw the above Ordinance, as soon as possible, reverting to the more mature, and time tested policies and patent law in force before January 1, 2005, removing the hurdles on the way for the smooth continuance of our growth, progress and prosperity. Therefore, FSF India requests the Government of India to immediately withdraw THE PATENTS (AMENDMENT) ORDINANCE, 2004 (Ordinance .No 7 of 2004) under Article 123(2)(b), with regard to amendments made to Section 3(k) of the Patents Act, 1970. ====================================================================== _______________________________________________ Fsf-friends mailing list Fsf-friends at mm.gnu.org.in http://mm.gnu.org.in/mailman/listinfo/fsf-friends From jeebesh at sarai.net Fri Mar 4 20:01:26 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Fri, 04 Mar 2005 20:01:26 +0530 Subject: [Commons-Law] Letter from MSF, Paris Message-ID: <4228713E.1040701@sarai.net> I pass you some info about India and Patent Law (see below) . If you can circulate it, that would be wonderful. The letters to your President, Prime Minister and to Soniaji are public, you can find them on http://www.accessmed-msf.org/. We hope that an Indian newspaper will publish them... That's going to be a big, big challenge... If you have some advice - and some names (journalists, politicians, etc) that could help ?? thanks Laurence xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Indian Parliament to discuss Patent Law – millions of lives at stake February 25th 2005 -- As the Indian Parliament prepares to tackle the country’s implementation of the World Trade Organization’s (WTO) agreement regulating patents on medicines, Médecins Sans Frontières is urging Indian decision makers to ensure that patients in developing countries will continue to have access to affordable medicines. MSF believes the proposed amendments to India's Patent Act of 1970 drastically restrict, perhaps even prevent, the production and supply of vital therapies by Indian pharmaceutical companies to other developing countries. MSF treats 25,000 people living with HIV/AIDS worldwide, and roughly 70% of our patients take Indian generic medicines. The low cost and user-friendliness of these WHO-recommended combination pills has allowed MSF to increase the numbers of people under treatment dramatically over the past three years. We fear that once these patients, and hundreds of thousands of others like them in developing countries, need second-line treatment, the lack of generic competition due to patents on new medicines in countries like India will mean that people and communities will no longer be able to afford the much-needed treatments. MSF has sent letters to Dr Avul Pakir Jainulabdeen Abdul Kalam, President of India; to Dr Manmohan Singh, Prime Minister of India; and to Ms Sonia Gandhi (advisory council) asking them to ensure that people relying on Indian generic drugs -- not just in India but worldwide -- can continue using generic medicines. More info on http://www.accessmed-msf.org/ From hbs.law at gmail.com Fri Mar 4 23:15:36 2005 From: hbs.law at gmail.com (Hasit seth) Date: Fri, 4 Mar 2005 12:45:36 -0500 Subject: [Commons-Law] Comment On: Fwd: [Fsf-friends] Our response to the Patents (Amendments) (Anivar Aravind) (Hasit Seth) In-Reply-To: <20050304110007.BF26D28D908@mail.sarai.net> References: <20050304110007.BF26D28D908@mail.sarai.net> Message-ID: <8b60429e0503040945169befcd@mail.gmail.com> The amendment to patent act providing for "software related patent" is indeed badly drafted if the intent was only to grant patents for embedded software. I agree with the bad drafting comment completely because legislative intention should be clear in policy mattters. That said, it is amazing to contrast constitutional approaches to innovation. American constitution explicitly provides for patent and copyright protection to promote invention. And an argument below seeks to show that Art. 39 of the Indian Constitution seeks to promote socialism's goals and somehow that is anti-patent. I forget the article number, but there is a directive policy that states that state shall endeavor to increase scientific temper. I am yet to see an cohesive argument with economics that show that cumulatively patents in the broad fields of mechanical, chemical, electrical-electronics invention have somehow created a havoc on Indian society. Take agriculture for example, pesticides can be patented, seed manufacturing technology can be patented, mechanical inventions such as tractors, harvesters can be patented but there has been no large scale havoc caused by such patents. And we can all agree that agriculture is the most basic, pervasive economic activity in India affecting everyone. Why then will software patents create a catastrophy? There is an argument in the excerpt below that software industry is living in peaceful alice-in-wonderland and patents will "disturb the peace prevailing in the software field, and may raise contentitious disputes between various hardware manufacturers, software developers and entities". So what, big deal? Software is business like any other business, and if other business have patent regimes why should software business be any different? Does any one remember the Indian nationalized bank employees union agitation (in around '80s) against "computerization" that will destroy the labor rights? Nationalized bank union extorted money as compensation for allowing comptuers in banks!!! Then there was a stir in railways when computerized reservation was introduced. The scare tactic below is just one of those types. Where has computerization destroyed labor in banks? or in railway reservation. Sure computers mean less number of clerks are needed to transfer entries from receipts to general ledgers in banks, but look at the customer service you are getting in banks and railway reservations due to computerization. Just few examples of anti-technology and anti-innovation attitudes. I mention this because somehow there is a pervasive belief that innovation and invention in any form will destroy the exisiting social and economic structures in India. At the risk of making a sweeping genralization, if the hyperbole can drive home the point: There are more anti-innovation activists than innovators in India. (I am not speaking of European innovation - its opposition to software patents, because that has more to do with Europe's business competitiveness with US in software) Patents are a one policy tool to promote invention and innovation. There are many other policy tools that control, destroy and promote invention, e.g., subsidies, licensing, finance, taxation, moral issues, labor and so on. Patents are not the nuclear bombs they are made out to be of monopolistic control. While patents sound in theory to have huge monopolistic power (and they do in some fields like pharmaceuticals, no denying that) in most fields they have only marginal market control power. Two reasons: One, language restricts capturing patent rights. All said and done, patent is a piece of written document. It is just not possible to "own" a technology field through a single patent or patents for a substantial length of time. The more you claim in a patent claim, more chances you get a stupid patent with tons of prior art reading on it. Thirdly, any lawyer will tell you that a written document creating or transfering legal rights/obligations will have no guranteed interpretation by a court. Patents are no different. Statistics are available in US that show huge number of patents being invalidated in courts - day in and day out. Two, technology has always competitng alternatives. For far too many fields same result can be achieved by multiple and different techniques. For example, if LZW algorithm and GIF file formats were patented by Unisys, the free software community came up with its own format PNG, and not to mention there are zillion graphic file formats - TIFF, JPEG, PCX, DWG and so on - from standard groups, private companies, and so on. Same story with encryption. Most patenting is not simple as shown in WIPO's comic book about patents !!! But in some fields patents can be counter produtive, for example, if TCP/IP was patented then it would have taken some time for someone to come up with a competing alternative. Medicines are another example, developing a new competing molecule takes billions of dollars and years of clinical and chemical research. I would be first to say that innovation and invention can be very disruptive. Inventions (truly big ones) like most big social, economic and political ideas have power to change the human life in a drastic way. Particularly so, because science, technology and invention does not follow social rules or morality in evolving. Atomic science just developed without any connection with dangerous social effects as history showed. Industrial revolution in Europe wrecked havoc on small artisans in India. We can choose to remain in isolation, or we can join in innovation race. And first price to pay is shedding of anti-innovation and anti-invention bias. We have the capability and fire to be as innovative as Japanese, Taiwanese, American, European and other inventors. Do we want to become history or create history on our own terms? Hasit Seth ==================== Excerpt from previous email: .... The Directive Principles enshrined in the Constitution of India, under Chapter IV. Article 39 reads as follows: "39. Certain principles of policy to be followed by the State.- The State shall, in particular, direct its policy towards securing- (a) that the citizen, men and women equally, have the right to an adequate means of livelihood; (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;" The software industry largely earns revenue by providing custom services, and by introducing patents for embedded software, the software service providers would be hampered by needless claims, litigation and other un-productive disputes that cannot be easily resolved. Patents for embedded software would lead to increasing concentration of wealth and means of production to common detriment. It is well known that Bill Gates of Microsoft is the richest man in the world, and the patent regmime would only go to promote the riches of the richest. We have no hesitation in saying that the needless hair splitting of computer programs into embedded/non-embedded will only entangle the Indian Software Industry in litigation, obstructing progress to common detriment. Other harmful consequences of the amendment: The amendment would disturb the peace prevailing in the software field, and may raise contentitious disputes between various hardware manufacturers, software developers and entities, resulting in loss of peace in the first place, coupled with loss of revenue and other damages. It would undermine the peace of mind required by software developers to write robust code, robbing and sapping energy away to indulge in meaningless patent searches and other needless exercises, From prabhuram at gmail.com Sat Mar 5 17:43:10 2005 From: prabhuram at gmail.com (Ram) Date: Sat, 5 Mar 2005 13:13:10 +0100 Subject: [Commons-Law] Whose Patent Is It, Anyway? Message-ID: <68752c9f05030504136c8733f3@mail.gmail.com> >From New York Times Whose Patent Is It, Anyway? Howard French Each shift, 200 workers, most of them women in smocks and bibs, labor in a factory tucked away in hilly farmland outside this city assembling a single product, one-inch hard drives. As China's emerging industrial centers go, Guiyang is an obscure outpost, bearing little resemblance to the booming factory towns of the east coast. And yet, as much as any other place in China this hard drive assembly may be at the front line of an intense global struggle to dominate high-tech manufacturing. The tiny storage device this factory churns out is the heart of one of the world's hottest consumer electronics items, the mini version of Apple Computer's iPod. Sales to Apple represent a huge triumph for GS Magic Stor, an offshoot of a struggling state-owned carmaker that is so obscure that even in China few are familiar with the name. The problem with this ringing success story, according to a better-established rival, Hitachi Global Storage Technologies, which has factories in China and also supplies miniaturized drives to Apple, is that the Chinese company stole crucial elements of the design. GS Magic Stor denies this charge, which Hitachi has made in a suit filed in Federal District Court in Northern California. In a recent online forum the company's president ridiculed Hitachi's claim, likening it to someone's asking carmakers to pay design rights to the inventors of the horse and buggy. A Hitachi official, who refused to comment further, said that GS Magic Stor could characterize the Hitachi patents however it wished, "but the plain and simple matter is they haven't expired." Hitachi's highly technical complaint specifies several areas where it says its designs were infringed by Magic Stor. Apple, which was not named in Hitachi's suit, would not comment. Even if Hitachi wins the suit, that would do nothing to stop Magic Stor from continuing to produce its miniature hard drives in China, although some analysts say that Apple would be forced for image reasons, if nothing else, to drop Magic Stor as a supplier. For Western companies competing with China as well as those doing business here, the issue goes well beyond the fate of one obscure company or of a single technology, however valuable. In one sector after another, companies warn that China's swift industrial rise is being greased by brazen and increasingly sophisticated theft of intellectual property. The issue of intellectual property theft has been a fixture on the trade agenda between the United States and China for years, with visiting American officials routinely stopping at the famous Silk Market in Beijing to highlight the sale there, like all over China, of cheap knockoffs of toys, clothing, software and DVD's. The Chinese government has recently razed the market, but the counterfeit activity has been moving relentlessly upscale, with General Motors, Cisco, Sony and Pfizer, just to name the most high-profile companies, complaining that their designs or formulas for everything from cars and PlayStations to routers and Viagra, have been violated. "Until recently, when China began putting intellectual property laws in place, for the past 40 years, all patents were owned by the government, and could be shared by any company that was willing to use them," said Paul Gao, a Shanghai-based expert on consumer electronics and automotives at McKinsey & Company. "The Chinese government actually encouraged this, and that has left a deep impression on companies that intellectual property is there for anyone to use it." Experts say the practice of copycat production is also fueled by the fierce competition among Chinese companies and provinces to join the global economy. "With the extreme fragmentation of industry, you see a lot of subscale players that are trying to survive in the market on their own," Mr. Gao added. "They don't have the budget for research and development or the scale to compete. If they pay a licensing fee, they consider they are essentially imposing a death penalty on themselves." Like many people on the receiving end of accusations of intellectual property theft here, GS Magic Stor's president, Zhu Baolin, fiercely denies his company has done anything wrong, and goes so far as to say that the lawsuit is an act of desperation by a foreign enterprise unable to compete with his Chinese company. "We don't blame Hitachi for what they are doing," said Mr. Zhu, a 25-year electronics industry veteran. "We just want Chinese people to know we created our own product, and that we face a lot of pressure. This will happen a lot in the future in the knowledge industry, but we will still work hard to grow." Beyond the case of Hitachi versus Magic Stor, many Chinese legal experts simply deny there is any special problem with theft of intellectual property in China. "It may look like it's a China problem, but it's a worldwide problem, just like piracy on the Internet, and it exists in America as well," said Zhang Ping, a law professor at Beijing University, and one of China's leading experts on intellectual property rights. "There are many problems with fake products, with low levels of technology. These can't be counted as intellectual property violations. They are just cheap fakes." Like many people professionally involved with this issue here, Ms. Zhang denied that China was a leading violator of intellectual property rights, which she acknowledged was still a relatively new concept in China. She also said that the country's efforts at improving enforcement, though steady, would require more time to reach the standards of intellectual property rights in many advanced industrialized countries. Lawyers who represent Western companies embroiled in intellectual property disputes in China, however, point to major loopholes in Chinese law and in the country's trademark and patent system as parts of the problem. Many Chinese patents, for example, are granted without any examination of their originality, making it easy for local companies to claim others' innovations as their own. While foreign experts also point to progress in the country's courts and especially in the richer provinces along the country's east coast, they say that local and provincial governments, eager to bolster their economies, sometimes subsidize patent filings for local companies and provide pointers to them on how to beat foreign claims of infringement. Even the Shanghai government speaks of building a "great wall of patents" to protect local companies. "Once upon a time, the counterfeiters in China ran away when you came after them," said Xiang Wang, a lawyer specializing in intellectual property rights at White & Case in Shanghai. "Today, they don't run away. Indeed, they stay put and they sue us. More and more Chinese companies are taking a so-called legal approach, taking advantage of serious weakness in the Chinese legal system." One of the most problematic areas, experts say, are joint ventures between foreign and Chinese companies, which are legion. When the joint venture dissolves, or sometimes even while it remains active, the Chinese party makes use of the technology or manufacturing processes illegally. A perennially told war story in business circles here involves the foreign factory owner who makes a wrong turn while driving to his plant only to discover an exact copy of his factory on the other side of the mountain. Although this story might be apocryphal, Mr. Wang said he saw cases all the time that are not so different in their details. "We have a client in the power business who found that one of his key employees had quit and joined a competitor, revealing confidential information to him straight away, and filing patents of these materials which were literal copies of the original technology," he said. "When our client warned he would sue over patent infringement, the Chinese company said it was also planning to sue. 'And by the way,' they asked, 'what patent are you talking about? This is our patent now.' " From paivakil at yahoo.co.in Sat Mar 5 21:28:46 2005 From: paivakil at yahoo.co.in (Mahesh T. Pai) Date: Sat, 5 Mar 2005 21:28:46 +0530 Subject: [Commons-Law] Comment On: Fwd: [Fsf-friends] Our response to the Patents (Amendments) (Anivar Aravind) (Hasit Seth) In-Reply-To: <8b60429e0503040945169befcd@mail.gmail.com> References: <20050304110007.BF26D28D908@mail.sarai.net> <8b60429e0503040945169befcd@mail.gmail.com> Message-ID: <20050305155846.GA6462@nandini.home> Hasit seth said on Fri, Mar 04, 2005 at 12:45:36PM -0500,: > That said, it is amazing to contrast constitutional approaches to > innovation. American constitution explicitly provides for patent > and copyright protection to promote invention. I am not sure if patents are involved; but the US constitution certainsly does provide that copyright is protected. I may be wrong; I am not strong on the US constitution. > Why then will software patents create a catastrophy? There is an People who know classical music know about taala, raga and the lyrics. Lyrics are copyrightable. Every considered if Saint Thayaraga (or any body else) patented the taalas and ragas?? This is precisely what software patents do. If you do not understand the above, and want to discuss software patents, learning a bit about Indian classical music will help. > and entities". So what, big deal? Software is business like any > other business, and if other business have patent regimes why > should software business be any different? (snip) > receipts to general ledgers in banks, but look at the customer > service you are getting in banks and railway reservations due to > computerization. Just few examples of anti-technology and > anti-innovation attitudes. As somebody who has availed services of Indian and Foreign banks ove a loooooooooooooooooooong time, i may say that mechanisation has taken away the human touch. I have serious trouble dealing with a bank which is not [interested in|capable of] having permanent staff on its rolls. And, afaik, most banks outside India charge a fee if a customer wants to deal with a human - even for clarifying an erroneous entry. > innovation and invention in any form will destroy the exisiting > social and economic structures in India. At the risk of making a > sweeping Software is certainly, at the moment part of the `social and economic structure'. It is slowly going that way; and we need to keep that infrastructure free. > patent is a piece of written document. It is just not possible to > "own" a technology field through a single patent or patents for a > substantial length of time. The more you claim in a patent claim, Oh. patent a raga, and you control a significant proportion of Indian classical music. Patent a taala and you control a major share of *all* music - indian, classical, non clasical, wester, and all. > it. Thirdly, any lawyer will tell you that a written document > creating or transfering legal rights/obligations will have no > guranteed interpretation by a court. Patents are no different. I *am* a lawyer and am looking forward to the day the patent bill becomes the law. I am looking forward to the day when evey user of a digital system (include mobile phones, fuel injectors, every form of LCD display, etc) is exposed to patent litigation. D**n users and software engineers. They are filthy rich already; lawyers too have a right life. I hate everybody opposing software patents. > Statistics are available in US that show huge number of patents being > invalidated in courts - day in and day out. heh. heh. Please, Indians, do not oppose patents on software. I am a lawyer. I have a family to feed. Oh, please. I need the money. And I am looking forward to the day a US like patent system is in place here. (golly golly did you know that using your computer as a typewriter is patented??? > techniques. For example, if LZW algorithm and GIF file formats were Ah. The submarine patents. In future youc can have lawyers specialising in enforcement of patents against lusers and and a few specialising in litigating against people creating software. The law school administrators should immediately start considering new courses in these areas. > I would be first to say that innovation and invention can be very > disruptive. And patents can be obstructive. > social effects as history showed. Industrial revolution in Europe > wrecked havoc on small artisans in India. Assisted in no small way, by a document coincidentally named a ``Letters patent''. The present patent system owes its origin to the ``latters patent'' of the colonial days. -- Mahesh T. Pai <<>> http://paivakil.port5.com Distributing free copies of non-free software is -- -- like advertising drugs. From prabhuram at gmail.com Mon Mar 7 14:39:41 2005 From: prabhuram at gmail.com (Ram) Date: Mon, 7 Mar 2005 10:09:41 +0100 Subject: [Commons-Law] NYTimes: AIDS Drugs Threatened Message-ID: <68752c9f050307010933f123f5@mail.gmail.com> Another timely reminder to Indian MPs on the gravity of the issue that they are grappling with...from Tina Rosenberg, NYTimes. R -------------------------------------------------------------------------------- March 5, 2005 EDITORIAL AIDS Drugs Threatened India's Parliament is about to take up a bill that could affect sick people the world over. India is the leading supplier of low-cost generic AIDS medicine. The country's huge generic industry has been able to copy antiretrovirals and other medicines because India grants patents for the process of making drugs, rather than for the medicines themselves. But the Patents Bill that India is considering, at the behest of the World Trade Organization, would change that. Parliament must make sure that it protects India's ability to make these crucial drugs. While the W.T.O. requires its members to respect product patents, it allows them to put public health first. Unfortunately, the Patents Bill would fail to do this; some of its provisions would go far beyond what the trade organization requires. The bill bears the heavy footprint of multinational and Indian pharmaceutical companies that are eager to sell high-priced drugs to India's middle class, which is larger than the population of the United States. Lobbying by these companies has produced a bill that would sacrifice public health. For example, as current AIDS drugs become ineffective, India will be asked to make cheap, easy-to-take combination versions of newer antiretrovirals. To do so as a W.T.O. member, the government will have to issue something called a compulsory license, which allows a generic manufacturer to copy a patented drug. The patent holder gets a reasonable royalty, but does not have to consent. But India's compulsory license process is very slow and lets pharmaceutical companies tie up such licenses in court for years. Moreover, India's laws do not allow it to export medicines made under these rules to countries where they aren't patented, which includes most of Africa. Indian lawmakers must reform the Patents Bill to cut the red tape that can block compulsory licenses. They should also eliminate the loophole that prevents medicines from going to the poorest countries. India needs to allow challenges to patents before they take effect, and to remove a provision that could allow a company to extend a patent by simply finding a new use for a drug. Instead of passing the flawed government bill, lawmakers should refer the bill to a committee for public testimony about possible reforms. Seldom has India's Parliament considered anything of such global import. If Parliament can preserve India's ability to provide generic versions of these medicines, it will make the difference between life and death for millions of people at home and abroad. From anivar.aravind at gmail.com Mon Mar 7 14:46:29 2005 From: anivar.aravind at gmail.com (Green Youth Moderator) Date: Mon, 7 Mar 2005 14:46:29 +0530 Subject: [Commons-Law] Fwd: A Call to Action in OASIS In-Reply-To: References: Message-ID: <35f96d47050307011645d40c2f@mail.gmail.com> ---------- Forwarded message ---------- From: DAVIDE MERONI Date: Wed, 23 Feb 2005 15:54:01 +0100 Subject: A Call to Action in OASIS To: Nettime-l A Call to Action in OASIS The free and open source software community has long demanded that industry standards be freely available to all to implement without patent or other licensing encumbrances. Open standards are essential for free software and open source to thrive. Now OASIS, a major industry consortium that produces e-business and Web services standards, has adopted a patent policy that threatens to undermine our development and licensing model. This patent policy (available, grouped together with other unrelated legal issues, in http://www.oasis-open.org/who/intellectualproperty.php) permits standards to be based upon so-called "reasonable and non-discriminatory" patent license terms--terms which invariably and unreasonably discriminate against open source and free software to the point of prohibiting them entirely. It would lead to the adoption of standards that cannot be implemented in open source and free software, that cannot be distributed under our licenses. While the policy includes a provision for royalty-free standards, it is a secondary option, which will have little effect if a few OASIS members with patents can ensure it is not used. The OASIS patent policy will encourage large patent holders to negotiate private arrangements among themselves, locking out all free software and open source developers. This is not a new issue for us. We fought hard for a royalty-free patent policy in W3C and encouraged that standards organization to commit its members to open standards. But some W3C member companies, steadfast opponents of software freedom, moved their efforts to OASIS. Without consulting the free software/open source community, they produced a patent policy designed so that we cannot live with it. We ask you to stand with us in opposition to the OASIS patent policy. Do not implement OASIS standards that aren't open. Demand that OASIS revise its policies. If you are an OASIS member, do not participate in any working group that allows encumbered standards that cannot be implemented in open source and free software. Please send email to open at rosenlaw.com to indicate your support. We will forward your comments to the proper authorities at OASIS. If we stand united in opposition to this unacceptable patent policy, we can persuade OASIS to change it. /signed/ Lawrence Rosen Bruce Perens Richard Stallman Lawrence Lessig Eben Moglen Marten Mickos John Weathersby John Terpstra Tim O'Reilly Tony Stanco Don Marti Michael Tiemann Andrew Aitken Karen Copenhaver Doug Levin Dan Ravicher Larry Augustin Mitchell Kapor Russell Nelson Guido van Rossum Daniel Quinlan Murugan Pal Stuart Cohen Danese Cooper Eric Raymond Mark Webbink Ken Coar Doc Searls Brian Behlendorf # distributed via : no commercial use without permission # is a moderated mailing list for net criticism, # collaborative text filtering and cultural politics of the nets # more info: majordomo at bbs.thing.net and "info nettime-l" in the msg body # archive: http://www.nettime.org contact: nettime at bbs.thing.net ~regards Anivar Aravind Global Alternate Information Applications (GAIA) From ganasairam at yahoo.co.in Mon Mar 7 18:33:02 2005 From: ganasairam at yahoo.co.in (gana pathy) Date: Mon, 7 Mar 2005 13:03:02 +0000 (GMT) Subject: [Commons-Law] Framing IPR - Policy Message-ID: <20050307130302.35235.qmail@web8408.mail.in.yahoo.com> Dear Friends, I shall be thankful to know about availability study materials for development and framing IPR Policy- (particularly patent policy) for Small /Medium sized pharma industry, Or links to model IPR Policies. Thanking you in advance. with best regards ganapathy ________________________________________________________________________ Yahoo! India Matrimony: Find your life partner online Go to: http://yahoo.shaadi.com/india-matrimony From admin at lead-journal.org Sun Mar 6 20:43:18 2005 From: admin at lead-journal.org (LEAD Journal) Date: Sun, 6 Mar 2005 23:13:18 +0800 Subject: [Commons-Law] Call for submissions, Law Environment and Development Message-ID: <38255-22005306151318809@francois> Dear Subscriber, The Law Department of the School of Oriental and African Studies (SOAS) – University of London and the International Environmental Law Research Centre (IELRC) are delighted to announce the launch of the Journal of Law, Environment and Development (LEAD-journal), a peer-reviewed academic publication published at www.lead-journal.org. LEAD-journal seeks to fill the need for a comparative approach to environmental law. LEAD will be the only journal to adopt such a comparative perspective on environmental law issues from a North-South perspective. LEAD will also be the only international law journal to provide a forum for analysis of environmental regimes in developing countries and for examination of North-South dimensions in the development and implementation of environmental law. It will provide perspectives from both developed and developing countries. Bearing in mind the principles of 'sustainable development', LEAD solicits writings which incorporate related concerns, such as human rights and trade, in the study of environmental management, thus adopting a contextual approach to the examination of environmental issues. LEAD is pioneering in its attempt to lay equal emphasis on both theoretical and practical approaches to the study of environmental law and practice. We would like to invite you to contribute articles to this new publication which builds on the expertise and experience of two premier institutions in the field of environmental law and policy, SOAS and IELRC. The first issue of LEAD will be published in the second half of 2005. We encourage authors to provide their articles on the basis of a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 License. Periodically, articles published in LEAD will be further refereed for publication in a collected volume in book format, with permission from the authors. For further information, please contact the editorial office by email at info at lead-journal.org or by mail. You may also contact the managing editors: Dr Philippe Cullet at pcullet at soas.ac.uk and Dr Usha Ramanathan at uramanathan at ielrc.org. -------------------------------------------------------------------------------- LEAD-Journal c/o International Environmental Law Research Centre International Environment House, 7 Chemin de Balexert 1219 Châtelaine-Geneva, Switzerland Tel/fax: + (41) 22 797 2623 info at lead-journal.org www.lead-journal.org -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050306/9aff08fd/attachment.html -------------- next part -------------- A non-text attachment was scrubbed... Name: not available Type: image/gif Size: 7432 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20050306/9aff08fd/attachment.gif -------------- next part -------------- A non-text attachment was scrubbed... Name: not available Type: image/gif Size: 138 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20050306/9aff08fd/attachment-0001.gif -------------- next part -------------- A non-text attachment was scrubbed... Name: not available Type: image/gif Size: 141 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20050306/9aff08fd/attachment-0002.gif From kat at nls.ac.in Tue Mar 8 10:00:41 2005 From: kat at nls.ac.in (kat at nls.ac.in) Date: Tue, 8 Mar 2005 10:00:41 +0530 (IST) Subject: [Commons-Law] VoIP Regulation in India Message-ID: <1814.61.246.61.249.1110256241.squirrel@61.246.61.249> Can someone point me to resources on VoIP regulation in India. I am looking for TRAI Reccomendations/Applicable Statutes/Articles on the subject etc. Anything would be welcome. If someone has done work on the issue, please do let me know. Its really urgent. Thank you. Best, Karthik From sunil at mahiti.org Tue Mar 8 13:38:22 2005 From: sunil at mahiti.org (Sunil Abraham) Date: Tue, 08 Mar 2005 16:08:22 +0800 Subject: [Commons-Law] Open-Source Software - Viable Alternative or Risky Venture? Lessons for Singapore Message-ID: <1110269302.4630.13.camel@morph> Open-Source Software - Viable Alternative or Risky Venture? Lessons for Singapore Date & Time : 09 March 2005, from 3.00pm sharp to 6.00pm. Registration starts at 2.30pm Venue : Intellectual Property Office of Singapore (IPOS) 51 Bras Basah Road #06-01 Plaza By The Park Singapore 189554 Programme Synopsis : Like many other issues in the intellectual property arena, public debates relating to proprietary versus free & open-source software have been both lively and emotional with proponents of both camps fiercely committed to the merits of their respective systems. Undeniably, the free & open source software movements have caused a seismic shift in developments in the ICT industry. This forum is not intended for participants to air philosophical issues. It seeks to explore, from a business and legal perspective, whether open-source software can be a viable alternative or potentially a risky venture for Singapore companies because of the current ambiguities and unresolved issues, especially pertaining to intellectual property. The forum will shed light on the current concerns, salient issues and explore possible ways of resolution. A panel of representatives from industry, government and academia will share their views on: * Applicability and commercial viability of open source versus proprietary software * The IP issues underlining open source and proprietary software * Looking into the future for open source and proprietary software Moderator: Associate Professor Daniel Seng, Faculty of Law, NUS Programme 2.30pm – 3.00pm Registration 3.00pm – 3.10pm Overview by Assoc Prof Daniel Seng 3.10pm – 3.45pm Discussion:- Applicability and commercial viability of open source versus proprietary software * Dr Cheok Beng Teck, Director, Mindef, CIO Office * Dr Chong Yok Sin, COO, NCS- * Mr Goh Seow Hiong, Director Software Policy (Asia) Business Software Alliance 3.45pm – 4.00pm Q&A 4.00pm – 4.45pm Discussion: - The IP issues underlining open source and proprietary software * Mr Lau Kok Kheng, Partner and Head of iTec Practice Group, Rajah & Tann * Dr Stanley Lai, Partner, Allen & Gledhill * Mr Chris Laughton, Legal Counsel, Novell 4.45pm – 5.00pm Q&A 5.00pm – 5.45pm Discussion: Looking into the future for open source and proprietary software * Mr Chris Sharp, Director, Platform Strategy, Microsoft Asia Pacific * Mr Sunil Abraham, IOSN (International Open Source Network) 5.45pm – 6.00pm Q&A 6.00pm Close -- 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. Mob: (60) 1-2205-3895 From abhayraj at nls.ac.in Tue Mar 8 13:34:56 2005 From: abhayraj at nls.ac.in (Abhayraj Naik) Date: Tue, 8 Mar 2005 13:34:56 +0530 (IST) Subject: [Commons-Law] Call for Submissions, Literary Magazine Quirk Message-ID: <1117.219.64.156.1.1110269096.squirrel@219.64.156.1> Apologies for cross-posting. Please do circulate in possibly interested channels. fundraising/sponsorship nuggets are hugely welcome :) regards Abhay QUIRK ESTD. 2005 A Slice of Literature, Society, and the Law Call for Submissions for the March 2005 Edition January 2005 saw the birth of an ambitious new venture at the National Law School of India University (NLSIU), Bangalore through the publication of the first edition of ‘Quirk’- a student-run literary magazine that seeks to provide an exciting new forum for student writers while helping create a community of articulate, expressive and socially-conscious youth across India and South Asia. With a modest 1000 print copies promotionally distributed in select locations across Bangalore, Baluchistan, Calcutta, Chennai, Colombo, Delhi, Mumbai, Lahore, and Trivandrum, Quirk has created quite an initial impact – with several writers, artists, and collaborators evincing interest in forthcoming editions. The online version of the January edition of Quirk is available at http://www.nls.ac.in/students/quirk/Index.htm In its ongoing effort to include increasingly diverse voices of literary merit from the student community across South Asia, Quirk seeks submissions for its second edition in March 2005. The Second Quirk Edition: March 2005 Featured Theme Contributions: 'The Indifferent College Student' Also Looking For: Poetry, Short Stories, Articles, Opinions, Reviews, Visual Art, Cartoons, Cool Quizzes, Puzzles, Wacky Undefinable Submissions, and So On.... Think Big, Think Different. Anything That’s Good and Fits our Quirky Quality Standards - We're Good to Publish. No Restrictions on Length, Content or Style. Email: quirk at nls.ac.in Or Write In: The Quirk Team, C/o Abhayraj Naik, National Law School of India University, PO Bag 7201, National Law School of India University, Bangalore – 560072, India. Flexible Deadline: March 18th, 2005. From srinivas at southcentre.org Tue Mar 8 15:16:34 2005 From: srinivas at southcentre.org (srinivas at southcentre.org) Date: Tue, 8 Mar 2005 10:46:34 +0100 Subject: [Commons-Law] software patents-india Message-ID: I think this issue deserves a detailed scrutiny. Are the patent offices in India are equipped enough to ascertain the prior art in software patents. The possibility of unddserving too broad patents blocking further innovations and making inventing around difficult cannot be ruled out. The implications of the same for open source software in india have to be examined.Will any one enlighten me about the position of the software industry in this.Are the big players like TCS,infosys, WIPRO keen on software patents. K.Ravi Srinivas Post Doctoral Fellow IPR Policy Research & Development Program South Centre 17-19 Chemin Du Champ d'Anier 1209 Petit Saconnex Geneva Switzerland Postal Address K.Ravi Srinivas South Centre CP 228 1211 Geneva 19 Switzerland Tel: +41 22 791 81 67 Fax: +41 22 798 85 31 email: srinivas at southcentre.org -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050308/206a6bf8/attachment.html From tahir.amin at btopenworld.com Tue Mar 8 20:42:14 2005 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Tue, 8 Mar 2005 15:12:14 +0000 (GMT) Subject: [Commons-Law] SA beer parody case to conclude Message-ID: <20050308151214.86799.qmail@web86108.mail.ukl.yahoo.com> Parody, freedom of speech/expression and trade marks like in the case below are becoming more and more an issue as activists and NGOs and other political groups target corporate behaviour as a way of attracting public attention to such matters. Corporations are protecting their trade marks and brands more vigourously than ever as they are now the number one asset on the account book and any damage to the brand affects the balance sheet. A similar case in France between Esso and Greenpeace (2003) favoured parody/freedom of expression over trade mark infringement, but in another case of Greenpeace v Areva (a nuclear industry company), although the court found that there was a right to freedom of expression, it did find Greenpeace had in certain respects gone too far in tampering with Areva's logo,and exceeded the limits of freedom of expresssion. Parody is not a defence in trade mark law, unlike copyright law, so it remains to be seen how the courts will judge the line between whether parody amounts to free speech/expression or 'hate speech', thus amounting to damage and infringement of a company's trade mark and its reputation. Tahir SA beer parody case to conclude By Alastair Leithead BBC News, Johannesburg The Black Labour T-shirt is one of many made by the company South Africa's Constitutional Court is hearing the final stage of a legal battle between a tiny T-shirt company and the world's second-largest brewer. Laugh it Off Promotions replaced the Black Label logo with the words "Black Labour, White Guilt", referring to the apartheid-era abuse of black workers. It claims the right to free speech is greater than trademark rights. But the brewer, SAB Miller, says the spoof was racially inflammatory and offensive. It said the parody of their beer label suggests the company had profited from the racist regime. The South African courts have so far been pretty clear about Laugh it Off Promotions' parody of the Carling Black Label beer logo: that it broke trademark rules by reproducing the artwork. Laugh it Off has produced a number of different designs using logos to make controversial points, but Tuesday is its last chance to challenge earlier rulings. However, lawyers will argue that the T-shirt maker - facing financial ruin if it loses - crossed the line from humour to hate-speech. It is a test case for artistic freedom, and an argument that will have to be decided by the South African Constitutional Court. Send instant messages to your online friends http://uk.messenger.yahoo.com -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050308/424e0583/attachment.html From supreet.sethi at gmail.com Wed Mar 9 10:48:07 2005 From: supreet.sethi at gmail.com (Supreet Sethi) Date: Wed, 9 Mar 2005 10:48:07 +0530 Subject: [Commons-Law] The Gathering Storms Over Speech Message-ID: Apple Computer's disgusting attack on three online journalism sites, in a witch hunt to find out who (if anyone) inside the company leaked information about allegedly upcoming products, has taken a nasty turn. Too bad it's not surprising -- and journalists of all kinds should be paying attention. ... Read more here http://dangillmor.typepad.com/dan_gillmor_on_grassroots/2005/03/the_gathering_s.html regards Supreet From supreet.sethi at gmail.com Wed Mar 9 11:01:19 2005 From: supreet.sethi at gmail.com (Supreet Sethi) Date: Wed, 9 Mar 2005 11:01:19 +0530 Subject: [Commons-Law] software patents-india In-Reply-To: References: Message-ID: On Tue, 8 Mar 2005 10:46:34 +0100, srinivas at southcentre.org wrote: > > > I think this issue deserves a detailed scrutiny. Are the patent offices in > India are equipped enough to ascertain the > prior art in software patents. The possibility of unddserving too broad > patents blocking further innovations and making > inventing around difficult cannot be ruled out. The implications of the same > for open source software in india have > to be examined.Will any one enlighten me about the position of the software > industry in this.Are the big players like > TCS,infosys, WIPRO keen on software patents. > IT consists of whole range of work. Companies have made money out of body shopping and Y2k transition, which hardly requires generation or usage of Intellectual property. Most of the companies mentioned happen to have lots of service oriented intellectual property or domain knowledge, but its most non-patentable. If we start looking at companies apart from big three, we find them more actively applying for patents in network technology, authentication protocols etc etc. Indian development centres of MNC's are also investing money in R&D to be part of Intellectual property "land grab" in india. regards Supreet From jace at pobox.com Wed Mar 9 11:55:40 2005 From: jace at pobox.com (Kiran Jonnalagadda) Date: Wed, 9 Mar 2005 11:55:40 +0530 Subject: [Commons-Law] The Gathering Storms Over Speech In-Reply-To: References: Message-ID: <9ef29ae9bc12e6eef8938567d08a825f@pobox.com> On Mar 9, 2005, at 10:48 AM, Supreet Sethi wrote: > Apple Computer's disgusting attack on three online journalism sites, > in a witch hunt to find out who (if anyone) inside the company leaked > information about allegedly upcoming products, has taken a nasty turn. > Too bad it's not surprising -- and journalists of all kinds should be > paying attention. John Gruber is generally the only one in the Apple community with his head screwed on right: http://daringfireball.net/2005/03/new_york_times I've given up following any of the other Apple-related sites (apart from Rui Carmo at the.taoofmac.com). -- Kiran Jonnalagadda http://www.pobox.com/~jace From prabhuram at gmail.com Wed Mar 9 14:28:47 2005 From: prabhuram at gmail.com (Ram) Date: Wed, 9 Mar 2005 09:58:47 +0100 Subject: [Commons-Law] India wins 10-year long neem patent battle in Europe Message-ID: <68752c9f0503090058408d7c5@mail.gmail.com> So, finally some good news from Munich, the bad and inclement weather notwithstanding- R:) India wins neem patent battle in Europe Indo-Asian News Service New Delhi, March 9 (IANS) India has won a 10-year-long battle at the European Patent Office against the grant of patent on use of neem as a fungicide, citing it as a traditional knowledge available with farmers and the scientific community. The European Patent Office had originally granted the patent to the United States Department of Agriculture and multinational W.R. Grace in 1995, which was later revoked in 2000 after India appealed against the patent. The multinational however went in for an appeal against the patent revocation, which has been rejected after India led by environmentalist Vandana Shiva presented further evidence to support that use of neem in varied forms is part of traditional Indian knowledge and not a novel product. In addition, the documented evidences presented by India included research done by two scientists prior to 1995 on use of neem, known for its medicinal properties, for making several products like fungicide. "This is a major victory for us as the award of patents could have been damaging as the US company had tried to enlarge the scope to include all neem end products," Shiva, who heads the Research Foundation for Science, Technology and Ecology, told IANS from Munich. "Definitely after this decision to uphold the earlier revocation of the patent, the European Patent Office will be much more careful in granting patents on products based on traditional knowledge," said Shiva. Stressing the need for protecting traditional knowledge, Shiva said the present Indian laws are not stringent enough. "Merely digitalising ayurvedic knowledge is not sufficient. There is a need to provide patent protection for all traditional knowledge to stop product piracy. Over 70 percent of our agriculture practices are based on traditional knowledge," said Shiva. She was part of India's successful bid to protect basmati, a traditional long-grained aromatic rice variety grown only in India and Pakistan, from being patented in the US. Along with the International Federation of Organic Agriculture Movement and Green Party in European Parliament, Shiva has been actively campaigning against the piracy of traditional Indian varieties of wheat by seed multinational Monsanto, which has filed for a patent in Europe. Indo-Asian News Service From srinivas at southcentre.org Wed Mar 9 16:48:10 2005 From: srinivas at southcentre.org (srinivas at southcentre.org) Date: Wed, 9 Mar 2005 12:18:10 +0100 Subject: [Commons-Law] neem patents In-Reply-To: <20050309110011.5F64D28D8E5@mail.sarai.net> Message-ID: Regarding the news item posted by Ram i remember to have read a similar news earlier.Is this a new story or the agency is repeating it. On patents and traditional knowledge I think it is not all that simple, even, for the sake of argument we agree that traditional knowledge can be patented.On neem and related knowledge there are patents that are still valid. On turmeric not all the patents were over turned by US PTO. On one hand there is a demand that the patent system should be revamped so that only patents that meet a stricter criteria should be granted and the geographical limitation on prior art should be removed. On the other hand there is a view that patenting TK is a good strategy. Some favor that communities should own the patents. Unfortunately the basic issues are not addressed, nor the conceptual and practical difficulties are examined. K.Ravi Srinivas Post Doctoral Fellow IPR Policy Research & Development Program South Centre 17-19 Chemin Du Champ d'Anier 1209 Petit Saconnex Geneva Switzerland Postal Address K.Ravi Srinivas South Centre CP 228 1211 Geneva 19 Switzerland Tel: +41 22 791 81 67 Fax: +41 22 798 85 31 email: srinivas at southcentre.org -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050309/4a71652e/attachment.html From prabhuram at gmail.com Wed Mar 9 17:42:33 2005 From: prabhuram at gmail.com (Ram) Date: Wed, 9 Mar 2005 13:12:33 +0100 Subject: [Commons-Law] neem patents In-Reply-To: References: <20050309110011.5F64D28D8E5@mail.sarai.net> Message-ID: <68752c9f05030904123d28532e@mail.gmail.com> Dear Srinivas and all, This is with reference to the earlier email from Srinivas. In fact the Neem patent was revoked on 10 May 2000 but the opposition appealed against this revokation and the case continued till yesterday when it came for final oral hearing. Yesterday the appeal was dismissed and the neem patent was finally revoked. Hope this explains the earlier news item, and the different news stories that have been circulating in the Indian media today. warm regards R On Wed, 9 Mar 2005 12:18:10 +0100, srinivas at southcentre.org wrote: > > > Regarding the news item posted by Ram i remember to have read a similar news > earlier.Is this a new story or the > agency is repeating it. On patents and traditional knowledge I think it is > not all that simple, even, for the sake of > argument we agree that traditional knowledge can be patented.On neem and > related knowledge there are patents > that are still valid. On turmeric not all the patents were over turned by US > PTO. On one hand there is a demand that > the patent system should be revamped so that only patents that meet a > stricter criteria should be granted and the > geographical limitation on prior art should be removed. On the other hand > there is a view that patenting TK is a > good strategy. Some favor that communities should own the patents. > Unfortunately the basic issues are not addressed, > nor the conceptual and practical difficulties are examined. > > K.Ravi Srinivas > Post Doctoral Fellow > IPR Policy Research & > Development Program > South Centre > 17-19 Chemin Du Champ d'Anier > 1209 Petit Saconnex > Geneva > Switzerland > > Postal Address > > K.Ravi Srinivas > South Centre > CP 228 > 1211 Geneva 19 > Switzerland > > Tel: +41 22 791 81 67 > Fax: +41 22 798 85 31 > > email: srinivas at southcentre.org > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > > > From prabhuram at gmail.com Wed Mar 9 21:13:34 2005 From: prabhuram at gmail.com (Ram) Date: Wed, 9 Mar 2005 16:43:34 +0100 Subject: [Commons-Law] Fighting Big Pharma in Little Digwal Message-ID: <68752c9f050309074329b70cfc@mail.gmail.com> Fighting Big Pharma in Little Digwal By Stan Cox Something to think about when taking your medicine Digwal, India – Maliamma waved a Coke bottle at the government official. "Go ahead—issue the permit! But first I want to see you drink my well water!" Maliamma and her neighbors had traveled the 25 miles from their village of Digwal, in the state of Andhra Pradesh, India, to the district capital Sangareddy for a public hearing. At the hearing, an export-oriented pharmaceutical company was proposing to build a factory only a couple of miles from Sangareddy. The visitors from Digwal knew firsthand what kind of neighbor a bulk-drug factory can be, and they were determined that Sangareddy not suffer the same fate. Joining forces with local residents and businesses, they made it a pretty uncomfortable meeting for company representatives, who eventually hightailed it from of the room after signing an agreement to get out and stay out of the Sangareddy area. That hearing, in March, 2001, was one in a string of victories for the people of Digwal—a winning streak that by 2005 may have halted further pollution of their water and land by the factory across the road from their village. In this 50-mile-long stretch of rural India west of Hyderabad, the country's fifth largest city, almost 40 percent of the country's bulk pharmaceuticals are produced (a large proportion of them for export). The progress the the people of Digwal have made in protecting themselves against the industry's wastes puts them in a league of their own. Here, the more typical experience is that of the Patancheru industrial area about 30 miles east of Digwal, where toxic effluents from a myriad of drug factories continue to plague more than a dozen villages. But nobody's celebrating in Digwal. Residents and their legal representatives say that the groundwater remains badly polluted and is ruining their crops and their health. The factory's current owners say they are currently using state-of-the-art technology to control pollution, and that they have gone the extra mile to improve the lives of Digwal's residents. Government authorities say that the factory used to be a serious polluter, but, thanks to tough enforcement, that's all in the past. What's past is past, say the factory owners, and, as we will see, they may have excellent reasons for feeling that way. Sorting through all the claims and counter-claims are the state's High Court, various blue-ribbon committees, and even the US Food and Drug Administration (FDA). Digwal and the world "I'm no activist," says C. Shailaja, the Sangareddy attorney who has been representing Digwal's residents for almost seven years. "But when the people from Digwal first told me their story, I knew we had to do something." Back in 1998, she and some colleagues set up a one-day "camp" in Digwal to provide information on legal services. Such camps are routine, but at this one, Shailaja was thronged by more than 100 people who claimed that Global Drugs Ltd., owner of a drug factory just across National Highway 9 from their village, had contaminated their groundwater, ruined their crops, and wrecked their health. Before long, Shailaja and the villagers had filed a case against the factory's owners—a case that's currently before the state's High Court. The village has 6000 or so residents, most of them from the lowest rungs of India's caste hierarchy. The pharmaceutical plant, now owned by Nicholas Piramal India Ltd. (NPIL) of Mumbai (formerly Bombay), manufactures bulk drugs—technically, "active pharmaceutical ingredients"—that are used in producing pills, capsules, and other medical products. NPIL is India's second-largest pharmaceutical company, with numerous factories producing a complete line of finished products as well as bulk drugs. Judging from its published "shareholding pattern", between 21 and 30% of its stock is foreign-owned. The company has a branch office in New York and joint ventures with a wide range of Western drug companies in the U.S., the U.K., Switzerland, and Italy. Approximately 70% of the Digwal plant's production goes into export markets. India's pharmaceutical manufacturers will tell you that the best thing we in the West can do for the environment in places like Digwal and Patancheru is to keep swallowing our medicine. The more emphasis that India puts on exports, the drugmakers say, the greater the scrutiny they receive from Western regulators. But so far, in Digwal and the villages around Patancheru, the progress made against pollution has been largely the result of agitation and court action by local people who can no longer swallow their own well water. Rajarathnam, a native of Digwal, was one of those who approached Shailaja for help at the legal aid camp. He has been a thorn in the side of the factory's owners since 1995, secretly videotaping the dumping of effluents (he's a videographer by vocation), speaking out on Digwal's pollution problem, and even helping organize a theatrical troupe to spread the word to other villages. He says that a frustrated company official once told him, "Stop complaining! We're saving lives all over the world!" Another shouted, "What's the problem? Your village is becoming world-famous. People are saying, 'We're grateful to Digwal – that's where our medicines come from!'" The view from the village Digwal residents told me that since it was built in the early 1990s, the drug plant has discharged wastes into open streams during the monsoon season and has dumped into deep, open wells years round. They claim to have seen barrels of toxic waste buried, with trees planted over the top. They say that chemical analyses have shown their groundwater to be too contaminated for drinking, bathing, or even irrigation, and that it's making them sick. Farmers told me they have had to stop cropping large parts of their irrigated land because of what they call the "chemical water". (Pharmaceutical manufacturing involves a host of hazardous inputs, solvents, and by-products. For newly built drug factories in the United States, the Environmental Protection Agency puts limits on concentrations of some 32 different toxic compounds in their effluents.) There is little question that Global Drugs, which owned the plant until sometime in 2003, was a big-time polluter. In 1998, a state court concluded that "allegations to the effect that by reason of discharge of the industrial effluents, the agricultural lands have been affected stands beyond reasonable doubt." I saw one government analysis of water from a Digwal well in that same year that concluded, "Sample is not suitable for potable or irrigation purposes." A district judge wrote in 1999, "I have personally visited the premises of Global Drugs . . . This is a highly polluting industry." He called on the state Supreme Court to order compensation for the affected farmers. A 1999 court order addressed to Global Drugs noted that "effluents have formed a cesspool which is causing surface and groundwater pollution, and your effluent treatment capacity is not adequate." An official of the Andhra Pradesh Pollution Control Board, who asked not to be identified, told me, "In those years, Global Drugs was allowed to discharge its effluents on the land. But when NPIL took over the plant a couple of years ago, that stopped. The Board would not allow them to re-open the facility until its effluent treatment capacity was upgraded and its wastes were disposed of properly." He continued: "And these days, as soon as anyone tries to dump wastes in this area, we get a call, immediately, from a citizen. Everyone is very pollution-conscious now." NPIL: a white knight? Global Drugs was strictly minor league: a small, unprofitable local outfit. The plant's new owner, NPIL, is a billion-dollar-plus company that can afford to invest ample resources in pollution control—and they appear to have done just that. Manoj Agarwalla, General Manager for Finance for NPIL's Digwal operation, says that when it comes to preventing pollution, his is a model company. "This plant has an unconditional seal of approval from the FDA in the United States. Last May, we received an award from the Pollution Control Board. We're on the shortlist for an award from the National Safety Council of India. Around 8 or 9% of our total investment goes to safety, health, and environmental protection. "Any day of the week, we'll have foreign visitors coming in. Representatives of multinational companies are a dime a dozen around here. Given that, how could we be dumping toxic wastes?" But Agarwalla goes further. He says that his factory has never dumped its wastes—not even when it was owned by the notorious Global Drugs. In his view, the villagers are simply putting the squeeze on a rich corporation, and their very poverty gives them a big advantage: "Look, these are people who have so little, they have nothing to lose. So they file a case, see what they can get, and if they come up with nothing in the end, it's no big deal—for them. But I am forced to spend a lot of time and money to prove myself innocent." He adds, "We have spent close to $2 million on waste treatment, health and safety measures, and supplying safe water to Digwal." In 2000, under a court order, Global Drugs started hauling drinking water to Digwal in tanker trucks. Now, for an hour each morning, NPIL pipes water directly into the village from wells outside the allegedly contaminated area, at a huge expense. Agarwalla says the company provides potable water even though—he claims—the courts found the undrinkability of Digwal's groundwater to be "not directly attributable" to the drug plant. "We do it because we want to be a good neighbor. We do a lot for them. Last Independence Day, we even distributed sweets to every single schoolchild in Digwal." (Shailaja notes dryly that while NPIL was not legally compelled to pass out candy, the courts do continue to require that it furnish clean water.) I toured NPIL's Digwal installation with Agarwalla and other managers. Their pollution-control infrastructure, which includes three independent effluent treatment facilities, is impressive indeed. Incineration is done at high temperature with rapid cooling to prevent dioxin formation. Smokestacks are all scrubber-equipped. Liquid effluents run through channels and ponds lined with high-tech, impervious polymers. Organic wastes go into large tanks where they are broken down anaerobically by bacteria, producing useful biogas fuel in the process. Heat, water, and steam are all conserved and recycled. Both solid and liquid wastes are hauled to government-approved facilities after treatment.1 S.R. Mittal, NPIL's General Manager for Safety, Health, Hazards, and Environment, oversees all this activity. He is absolutely fervent about pollution control. He lives and breathes his profession (breathes, literally—the air that assaults the nostrils and lungs anywhere near the effluent treatment facilities is strong stuff indeed.) Let a single toxic molecule slip his grasp, and he'll take it as a personal failure. The chief concern of other drug industry people I have spoken with appears to be their corporate image, but Mittal is different. He's precisely the kind of person I'd want to hire were I in charge of a company truly committed to environmental responsibility. At the time of my visit in January 2005, the management was preparing for a visit by FDA officials from Washington, who would recommend whether or not the plant's permit to export to the U.S. should be renewed. I'm no expert, but from what I saw and heard at NPIL, I expected the permit to be issued promptly. A phantom report … and a phantom company? But what about the villagers, and their ailments, and their crops? Is their water and soil still polluted by past or even present-day dumping? Or, as Agarwalla maintains, are they just greedy? Maybe they're victims of mass paranoia? There is a document that could go a long way toward clearing up the controversy: a report by a committee of experts appointed by the state High Court to study the situation in 2002-2003. Almost everyone I spoke with, on both sides of the dispute and in the middle, mentioned the report's findings and leaned on it for support. But no one I spoke with had a copy of the report or had ever even seen a copy. Agarwalla says the report proves that Digwal's water is no longer polluted, and it recommends that the Court award no compensation to farmers.2 But neither he nor his fellow NPIL managers have actually seen the report. The folks at the state's Pollution Control Board office in Sangareddy said they don't have a copy, and more senior officials at the Board's headquarters couldn't provide one either. Shailaja hasn't seen the report, but doubts its reliability because, she alleges, committee members were too chummy with the company people. (NPIL denies this.) In her capacity as a legal representative of the villagers, she requested a copy, but never got one.3 And, of course, no one in Digwal has seen the report. One farmer, Nagarathnam, told me, "People come all the time and take water samples, but they never come back to show us any results." A Pollution Control Board official in the area says the water supplies are fine now, but he could show me no data. Completion and publication of a comprehensive survey, with full chemical analyses of Digwal's water sources, would answer many questions. Agarwalla would like to see such a study, but he emphasizes, oddly, that it should be done only after the court case is resolved. In the villagers' view, present-day water samples wouldn't tell the whole story anyway. They say the company already owes them for their decade of hardship. Here, a precedent—far more ghastly but still a precedent—comes to mind. Dow Chemical bought the Union Carbide Corporation in the 1990s . Thousands of families still seeking compensation for Carbide's deadly 1984 gas leak in Bhopal, India claim that Dow can't have acquired Carbide's assets without also taking responsibility for the Bhopal carnage—Carbide's biggest unresolved liability by far. Does NPIL likewise owe the residents of Digwal for what its predecessor did to them? Clearly, Agarwalla's unconvincing assertion that Global Drugs never dumped effluents is meant to head off compensation demands based on pollution that occurred before NPIL came on the scene. But the villagers say there's a bigger reason for NPIL to want to forget the past. As Rajarathnam puts it, "The name they put on the signs out front doesn't matter. They keep changing the factory's name just to avoid responsibility." That assertion may be inaccurate in a legal sense, but there may also be some truth in it. It turns out that the plant has changed hands more than once in its twelve-year lifetime. Global Drugs was the third in a series of owners, having acquired the plant from none other than Nicholas Piramal India Ltd.4 It's tempting to speculate, so let's do just that: Was Global Drugs created to supply NPIL with bulk drugs while keeping the big company's good name untarnished by pollution? (Some pharmaceutical companies in Patancheru have been accused of such shell games.) And, faced with villagers' protests and a government crackdown, did NPIL make a virtue of necessity and convert the plant into clean, green facility that can now freely export into regulated markets?5 At this point, it is left to the High Court to weigh whatever evidence it has gathered and decide whether NPIL is responsible for past pollution by the plant—whatever the past connection (or lack thereof) between NPIL and Global Drugs. When it comes to the cost of patented prescription drugs in the United States, the sky's the limit. But in the global bulk drug market, price competition is fierce, and every dollar or rupee not spent on pollution control gives a company a bit more room to maneuver. The people of Digwal have fought hard to stop such corner-cutting in their own backyard, and they appear to have succeeded. But they plan to keep pushing; they're still seeking recompense for a decade's worth of poisoned water. So, when drug-company officials tell Rajarathnam that drugs being made in Digwal are improving the health of tens of millions of people, this is his retort: "What? So are you doing this for free? And how many rupees are the lives of 6000 people in Digwal worth to you?" Stan Cox is a plant breeder and writer who lives in Salina, Kansas. He lived in Hyderabad, India in 1980-82 and 1996-2000 and just completed a two-month trip there. Translation by Priti Cox during interviews is deeply appreciated. He can be reached at: t.stan at cox.net *************** Notes: 1. NPIL's daily output of liquid effluents fills 14 or so tanker trucks, each with a 10,000 liter capacity. They transport those wastes 20 miles to a Common Effluent Treatment Plant (CETP) in Patancheru that handles wastes from all of the area's drugmakers. After treatment, NPIL management says, pollutant concentrations in the liquid wastes are less than half the legal upper limit. A 2003 court-ordered study in which repeated samples were taken from tanker trucks arriving at the CETP from 35 different factories confirms the claim that NPIL's treated effluents have concentrations much lower than the limit for raw sewage (the standard that applies to wastes brought to the CETP). But a single sample of "treated effluent" obtained during the study on a surprise visit to the factory itself exceeded that upper limit. 2. Agarwalla said the committee recommended no farmer compensation because records show that the land in question had lain idle before Global Drugs allegedly polluted it: "Those guys were producing zilch then, and they are producing zilch now, and they want to be paid fo it." Shailaja laughs off that argument: "The committee members were looking at land that had been taken out of irrigated production in the dry season precisely because the water was too polluted to use. And they concluded that the farmers were just lazy." She asks the obvious rhetorical question: How had more than a thousand families in a village surrounded by nothing but open countryside been surviving if they weren't farming? 3. One Pollution Control Board official told me that the report is evidence in the pending court action against NPIL and therefore unavailable. But as a foreigner with no legaI standing here at all, I had little trouble obtaining a 2004 report by a similar High-Court-designated committee that had investigated the pollution situation in nearby Patancheru. That case is also still pending. 4. I had read and had been told that NPIL "acquired" Global Drugs two years previously, and in the interview questions I put to Agarwalla, it would have been obvious to him that I believed that NPIL's role in the Digwal saga began only at that time. In his answers, Agarwalla said nothing to cause me to doubt that assumption. Subsequently, a person knowledgeable about the matter told me, "NPIL or Global Drugs—it's all the same thing." He told me that it had been an NPIL plant, then they formed Global to take it over, then they after a few years, they took it back over. When I asked one Pollution Control Board official—a vigorous defender of NPIL who asked not to be named—about it, he first asked, "What was the name of the person who told you that?"; then, he said that, yes, NPIL had owned the plant in the mid-1990s, and then he said, no, that was wrong, they didn't. I called Agarwalla, and after another round of Twenty Questions, he confirmed that, yes, NPIL did own the plant before Global Drugs. 5. Agarwalla told me he was unsure about the legal technicalities of how Global Drugs had come into being. He said Global Drugs had sold bulk ingredients to a variety of companies, but said he didn't have the figures to show whether or not the plant's bulk drug output during that period had supplied NPIL primarily. Source:GNN From paivakil at yahoo.co.in Wed Mar 9 22:28:17 2005 From: paivakil at yahoo.co.in (Mahesh T. Pai) Date: Wed, 9 Mar 2005 22:28:17 +0530 Subject: [Commons-Law] software patents-india In-Reply-To: References: Message-ID: <20050309165816.GA7821@nandini.home> srinivas at southcentre.org said on Tue, Mar 08, 2005 at 10:46:34AM +0100,: > Are the patent offices in India are equipped enough to ascertain > the prior art in software patents. For that matter, are the patent offices in any country capable of ascertaining prior art in software?? Please realise that unlike scientific research except in the Free / Libre - opensource software world, no publication of work takes place. And communication is almost instantaneous, that the philosophy underlying the concept of `prior art' cannot apply, as a practical matter. > The possibility of unddserving too broad patents blocking further > innovations and making inventing around difficult cannot be ruled > out. First, please consider whether activities in software field are identical to industrial production. > The implications of the same for open source software in india have > to be examined. Software industry is one without borders. Recall the problems with imposition of tax on e-commerce? Implications for Free software is uniform around world. > Will any one enlighten me about the position of the software > industry in this.Are the big players like TCS,infosys, WIPRO keen > on software patents. When you find out, please do tell us. ;) (no offence meant - AFAIK, there are no public statements by such companies on s/w Patents - but I may be wrong). Hmmm. Does this mean that the recent amendments to the Patent Act are intended *to* apply to software? HTH. -- Mahesh T. Pai <<>> http://paivakil.port5.com End Users are just friends who haven't submitted a patch yet. From prashant at nalsartech.org Thu Mar 10 17:55:30 2005 From: prashant at nalsartech.org (Prashant Iyengar) Date: Thu, 10 Mar 2005 17:55:30 +0530 Subject: [Commons-Law] BAJAJ TO TAKE ON =?utf-8?q?CHINA=E2=80=99S_COPYRIGHT?= VIOLATORS Message-ID: <200503101755.30338.prashant@nalsartech.org> Some interesting news from a few days ago. Regards, Prashant BAJAJ TO TAKE ON CHINA’S COPYRIGHT VIOLATORS Source: The Financial Express In the first instance of India Inc taking on China for copyright violations, the Rs 5,600 crore Bajaj Auto has initiated investigation of design infringements by Chinese manufacturers of its three-wheelers and Pulsar motorcycles. It has also kept the government in the loop to simultaneously take up the issue at the appropriate forum. When contacted, Sanjiv Bajaj, executive director, Bajaj Auto told FE, �We are currently looking at the legal possibilities of the situation. Certain Chinese manufacturers are copying our three-wheelers. We have also come across Pulsar look-alikes in Iran, imported from China.� In a letter to the ministries of commerce and heavy industry, the company has said Chinese manufacturers were copying designs of Bajaj models and exporting them to Latin America. Government officials said the Patent Office in Mumbai under the department of industrial policy and promotion is investigating the matter. �We will take up the matter with international bodies like the World Intellectual Property Organisation and the World Trade Organisation,� said an official. In fact, the Confederation of Indian Industry has already picked similar issues with its Chinese counterpart. CII president Sunil Kant Munjal had earlier told FE that several copyright infringement issues were brought to the notice of CII by its members. �We deal with the industry chambers there rather than with the government,� he said, refusing to go into the details of individual instances. Though this may be a first for an Indian manufacturer, China is known to be a hotbed of counterfeit products ranging from cigarettes to cars. Honda Motor Corp has filed around 67 cases against 11 Chinese companies for copyright violation of everything from its CR-V sports utility vehicles to motorcycles. GM has gone to court against Chery Automotive for ripping off the Chevrolet Spark (the erstwhile Daewoo Matiz) design. A DaimlerChrysler? report estimates 30% of automotive markets in China, Taiwan and Korea has been captured by fakes. http://www.nalsartech.org/tiki/tiki-read_article.php?articleId=2591 From mrinalinikpillai at gmail.com Thu Mar 10 21:31:09 2005 From: mrinalinikpillai at gmail.com (Mrinalini Kochupillai) Date: Thu, 10 Mar 2005 21:31:09 +0530 Subject: [Commons-Law] VoIP Regulation in India Message-ID: You can look up the consultations etc. on Internet telephony on http://www.trai.gov.in/ From lawrence at altlawforum.org Fri Mar 11 00:06:43 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Fri, 11 Mar 2005 00:06:43 +0530 Subject: [Commons-Law] Parody of WIPO's Copyright Comic Message-ID: Hi all The WIPO as a part of their pedagogic mission have been brining out a series of comics on Copyright, TM and patent. A few of us at ALF have been working a response to these comics, and we have now finished ver 1.0 of the response to the Copyright Comic and are working on a response to TM and Patent Comics. What we have done is basically use the base comics to create a counter story, by changing the dialogues in the blurbs and adding images etc, in other words a remixed version of the WIPO Comics. Hope you enjoy it, and Anyone interested in making changes to it, helping with the next versions on patent TM etc please feel free to mail namita at altlawforum.org You can find these at Right2Copy Comic: http://www.altlawforum.org/lawmedia/CC.pdf The 'original' comic can be found http://www.wipo.org/about-wipo/en/info_center/cartoons/pdf/copyright_cartoon .pdf Lawrence From patrice at xs4all.nl Fri Mar 11 16:04:49 2005 From: patrice at xs4all.nl (Patrice Riemens) Date: Fri, 11 Mar 2005 11:34:49 +0100 Subject: [Commons-Law] Re: [bytesforall_readers] Parody of WIPO's Copyright Comic In-Reply-To: References: Message-ID: <20050311103449.GH48881@xs4all.nl> On Fri, Mar 11, 2005 at 12:06:43AM +0530, Lawrence Liang wrote: > > > Hi all > > > The WIPO as a part of their pedagogic mission have been brining out a series > of comics on Copyright, TM and patent. > > A few of us at ALF have been working a response to these comics, and we have > now finished ver 1.0 of the response to the Copyright Comic and are working > on a response to TM and Patent Comics. (...) > > You can find these at > > Right2Copy Comic: http://www.altlawforum.org/lawmedia/CC.pdf > > > The 'original' comic can be found > http://www.wipo.org/about-wipo/en/info_center/cartoons/pdf/copyright_cartoon > .pdf > Downloading the 'original' costs so long that I give up. Proves Jean-Marie Le Pen wrong for once ("Les gens preferent toujours l'original a la copie") ;-) patrizio & Diiiinooos! (crypto anti-fakists) From prabhuram at gmail.com Fri Mar 11 22:45:53 2005 From: prabhuram at gmail.com (Ram) Date: Fri, 11 Mar 2005 18:15:53 +0100 Subject: [Commons-Law] Patents for profit: dystopian visions of the new economy Message-ID: <68752c9f05031109151a910ebf@mail.gmail.com> >From Open Democracy Patents for profit: dystopian visions of the new economy Becky Hogge The struggle over intellectual property is the concern of more than knowledge economy specialists, says Becky Hogge: it is a contest over freedom as well as technology. Fights for freedom are not always played out centre-stage. Since 2003, a piece of European Union legislation with the misleadingly arcane title of the "EU Directive on Computer Implemented Innovation" has been slipping unobtrusively through the bureaucratic thickets of Brussels. It has attracted little attention beyond intellectual property (IP) specialists and activists. It is time the interest widened, for the scope of the directive goes to the heart of how knowledge will be produced, consumed, and disseminated in the 21st-century global economy. The proposed legislation has the potential to lock away information – code – by extending the remit of patent law to cover any piece of code that makes a "significant technical contribution" to the field. The law would bring Europe closer to the United States's highly promiscuous attitude towards software patents, although how close remains a subject of fierce debate. Patents are state-granted monopolies designed to nurture technical, scientific and social progress by protecting the inventor's incentive to invent. Those opposed to software patents in Europe argue that there is no evidence to show that patenting code would ensure such progress in this still young field. As the directive has crawled across the legislative undergrowth, pioneers of technological discovery and commentary – Tim Berners-Lee, Richard Stallman , Lawrence Lessig and Linus Torvalds, among others – have urged the EU to come down against pure software patents. Many of these voices come from the patent-friendly United States: they hope that if Europe agrees with them, the US will be forced to reconsider its position. Will their hopes for Europe prove to be misplaced? A striking feature of the directive's two-year journey – from consultation to committee room, lobbying to redraft – is that the two main European Union institutions involved have moved gradually further apart on the issue. The elected European Parliament has been revealed as a space where open debate on intellectual property (IP) issues can occur. There, high-profile lobbyists seek to influence legislators; cross-Europe small and medium enterprise (SME) groups bring their concerns; and representatives from accession countries such as Poland share their experience of how the software industry has bootstrapped their growing economies. The cumulative result of the debate has been significant checks and balances on the legislation and the legislative process. By contrast, the unelected European Commission has emerged vulnerable to accusations of a culture of closed-door negotiations – favouring secretive, fast-tracked voting that reverses the parliament's careful work by executive fiat. The commission's confirmation on 25 February that it would not reconsider the legislation, despite the recommendations of a three-tiered parliamentary vote, is only the most recent evidence that "Europe" too is a site of contest over the key question of our time: who owns knowledge? The evidence The question has been a live one long before it entered the deep entrails of the European Union's legislative process. Since the commercial software industry emerged around 1990, technologists have argued that code is different from other inventions: it does not need protection by patents. In software creation, open standards – code as common knowledge – are the key to fermenting progress. To patent code is to add disabling and unnecessary burdens on software enterprise that can kill its potential in this crucial, formative stage. These fifteen years (a shorter timespan than the average patent) have seen the birth and maturing of the World Wide Web, all thanks to a protocol known as Hypertext Transfer (http). Tim Berners-Lee, the man who conceived the code that embodies this protocol, did not patent it. Thus it became an open standard: anybody could use it to contribute new programmes designed to run on the web. And use it they did. To the extent that the multiplying, democratising life-forms of the web now challenge the dominance of corporate media and orthodox models of economic activity. Software programming has a relatively low financial barrier to entry. It relies on the manipulation of mathematical algorithms between one man and his machine. Progress in the sector takes place in swift but discrete steps. Each step contributes something to the art of programming: each software programme builds on the last. It is this environment – accretive, open-ended and egalitarian – that has allowed rapid progress in the software industry to enhance the utility and connectivity of the computers people use in their daily lives. In the patent-free environment, contributions to the common pool of programming knowledge come from all corners of the world, from the amateur hacker working until 4am in his bedroom to corporations leasing the most expensive real estate in Silicon Valley. Richard Stallman, founder of the Free Software Foundation, likens reading a piece of software code to walking around a city – the expert eye will recognise "architectural periods", little stylistic ticks that identify a piece of recycled code with a particular time, even place. Software patents take chunks of code out of this vast pool of shared knowledge and lock them down using IP law. United States case law already shows how companies can use such patents to claim ownership of code that had previously been regarded as an open standard. The effect is not simply to appropriate and centralise a shared knowledge resource, but to make it impossible to create a new programme without infringing the patent. Where software is concerned, patents obliterate progress. Software and strong IP Some leading architects of the software sector are quite explicit about this. Bill Gates set his stall out as early as 1991: "The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose... Established companies have an interest in excluding future competitors." Companies who have followed Gates's advice and established a forceful patent portfolio gain another benefit: by subjecting software code to strong-IP protection, they can get around the problem of infringing rival patents by licensing patents to competitors – often generating significant revenues in the process. Already, IBM earns considerable royalties from its patent portfolio in the US. Other major IT companies there have started cross-licensing patented code with rivals. The logic is as clear as it is chilling. In effect, corporations use software patenting to secure a monopoly and discourage the entrepreneurial activity of start-ups. The result is to freeze, not foster, innovation – the very opposite of patent law's original intention. Moreover, as intellectual property law combines with the global shift towards a "knowledge economy", the regressive effect of such lockdowns acquires a more explicitly political dimension. The application of strong IP law is a game only the big boys, with their dedicated legal teams, can play. Knowledge, once viewed as a commons, becomes a commodity – just like land or labour in an agricultural or industrial economy – whose owners ordain themselves the new economy's ruling class. This process is taking place in all areas of the economy. At the moment we still baulk at the idea of knowledge as someone's out-and-out possession: witness the public disgust when patents prevent life-saving drugs from reaching the dying in Africa. With a little imagination, this reaction can be understood as a contemporary example of resistance to changes in economic reality. If the shift towards knowledge as commodity is as inevitable as many – including, it would appear, the European Commission – believe, then the future looks bleak. We can look forward to an age of monopolies, where innovation is choked by vested interest and the dynamic economies that software and other innovators have helped create fall to rot. An alternative vision: knowledge as infinite resource The patent-free history of the software industry speaks volumes for its own situation: software programming can get along fine without patents, if only it is allowed to. But what about the rest of the knowledge industries? Are they to be condemned to the dystopian, even Stalinist vision outlined above? Perhaps not. A new, much more radical model of the knowledge economy is emerging. And by coincidence, it too has been seeded in the software programming tradition. Over the same period that the Hypertext Transfer protocol was giving birth to the World Wide Web, a new school of programming was born: Open Source. Within Open Source even traditional copyright protection is reversed: programmers are compelled by a mechanism called "copyleft" to distribute their code freely, allowing others to copy it, modify it and integrate it into their programmes. Within the programming community code is shared without levy. Money comes in from outside the community, through the manufacture of hardware and through companies contracting for expertise, custom-design and support. The theory behind Open Source is that the "more eyeballs" that are fixed on a problem or "bug" in a particular programme – ie the more people with access to edit the code – the quicker that bug gets fixed. The model has proved a success. Open Source has come to dominate the backend of internet technology (the humming Apache-run servers that currently power 68% of the web) and has been creeping onto the consumer market in the form of the Linux operating system and Mozilla Firefox web browser. The success of Open Source underlines the fact that knowledge is a different sort of resource to labour or land. While these are finite resources, knowledge can be infinitely replicated, and never more easily than in the age of the internet. The only tragedy of this commons, it seems, would be to censor it using strong-IP law. Because, as Open Source has shown, a solid commons of knowledge fosters a solid knowledge economy around its edges. Open Source software is providing an attractive metaphor for others in the knowledge industries faced with increasingly obtrusive patent and copyright law, although technologists themselves, wary of being labelled romantic, often shy away from this. The economic success of Open Source programming relies in part on the nature of the programming task itself, but it can provide a model of understanding the world, as more and more of everyday life is becoming reducible to data. Following the success of the Sanger Institute's open funding model in the race to annotate the human genome, question marks are beginning to appear over the direct linking of medical r&d to the balance sheets of Big-Pharma. Arguments are also rippling through the creative industries over the use and misuse of copyright law on the internet. And libraries, academies and archives are finally finding their voice over open access to knowledge. The future of knowledge The contest between a strong-IP and a commons model will define the character of the knowledge economy worldwide for a generation. In the current transition period, it is being played out in institutions at every level of governance – local, national, regional, global. Thus, the tension between parliament and commission of the European Union is just one example of a wider trend. In 2004, the World Intellectual Property Organisation (Wipo), a specialised agency of the United Nations, agreed to revisit its terms of reference and move away from exclusively promoting strong IP where technical cooperation might be more appropriate to the interests of the developing world. But more recently, Wipo's announcement that it would invite only "permanent observers" to forthcoming talks will have the effect of excluding "ad hoc observers", who mainly represented IP reformist associations in previous talks, in favour of observers dominated by rightsholder interests. The knowledge economy increasingly touches every area of life – work and pleasure, professional and personal life – in every part of the world. It is vital that decisions over its future are made in a fair, accountable and democratic way. As agencies of governance recognise the value of knowledge as any kind of commons, muscular lobbyists for a strong-IP regime, keen to commodify knowledge for the new economy, will be drawn into the fray. These agencies must arm themselves with well-researched models of how knowledge performs in a commons environment. Software is a crucial part of this new landscape. The story of the EU Directive on Computer Implemented Innovation is closer to centre-stage than it appears. From monica at sarai.net Sat Mar 12 03:58:54 2005 From: monica at sarai.net (Monica Narula) Date: Sat, 12 Mar 2005 03:58:54 +0530 Subject: [Commons-Law] Re: [Reader-list] Parody of WIPO's Copyright Comic In-Reply-To: References: Message-ID: Dear Lawrence, Namita and everyone else at Alf This is excellent! And i think Liang's 'intervention' as jargonist quite apt :-) Now if only we could ...um... publish it! best M At 0:06 +0530 11/3/05, Lawrence Liang wrote: >Hi all > > >The WIPO as a part of their pedagogic mission have been brining out a series >of comics on Copyright, TM and patent. > >A few of us at ALF have been working a response to these comics, and we have >now finished ver 1.0 of the response to the Copyright Comic and are working >on a response to TM and Patent Comics. > >What we have done is basically use the base comics to create a counter >story, by changing the dialogues in the blurbs and adding images etc, in >other words a remixed version of the WIPO Comics. Hope you enjoy it, and >Anyone interested in making changes to it, helping with the next versions on >patent TM etc please feel free to mail namita at altlawforum.org > >You can find these at > >Right2Copy Comic: http://www.altlawforum.org/lawmedia/CC.pdf > > >The 'original' comic can be found >http://www.wipo.org/about-wipo/en/info_center/cartoons/pdf/copyright_cartoon >.pdf > > > >Lawrence > > >_________________________________________ >reader-list: an open discussion list on media and the city. >Critiques & Collaborations >To subscribe: send an email to reader-list-request at sarai.net with >subscribe in the subject header. >List archive: -- Monica Narula [Raqs Media Collective] Sarai-CSDS 29 Rajpur Road, Delhi 110 054 www.raqsmediacollective.net www.sarai.net From tato at paris.com Sat Mar 12 20:56:40 2005 From: tato at paris.com (Dhritabrata BHATTACHARJYA Tato) Date: Sat, 12 Mar 2005 10:26:40 -0500 Subject: [Commons-Law] Patents Ordinance Message-ID: <20050312152640.5FC86164005@ws1-4.us4.outblaze.com> An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050312/6662b3cf/attachment.html From monica at sarai.net Sun Mar 13 00:17:51 2005 From: monica at sarai.net (Monica Narula) Date: Sun, 13 Mar 2005 00:17:51 +0530 Subject: [Commons-Law] On Preacarity Message-ID: With the crumbling of social democratic guarantees of the post-WW2 consensus in western europe, a new social landscape is emerging and finding its own conceptual self articulation. This condition of the present has been termed precariousness/precarity. We are the 'precariat' :-)! Below are some links: http://republicart.net/disc/precariat/index.htm http://www.euromayday.org/lang_eng.html http://www.metamute.com/look/issue.tpl?IdLanguage=1&IdPublication=1&NrIssue=29 best M -- Monica Narula [Raqs Media Collective] Sarai-CSDS 29 Rajpur Road, Delhi 110 054 www.raqsmediacollective.net www.sarai.net From stopragging at gmail.com Sun Mar 13 03:20:51 2005 From: stopragging at gmail.com (Stop Ragging Campaign) Date: Sat, 12 Mar 2005 13:50:51 -0800 Subject: [Commons-Law] IPC, amendment, confusion, ragging... Message-ID: Dear commons-law list members, I am a Sarai-CSDS Independent Fellow; the subject of my Fellowship is the nature of ragging in hostels. As part of that I have been studying legal provisions on ragging. Am a bit confused about something, and I wonder if members of this list could help? Here it is: Kolkata-based lawyer-activist Tapas Bhanja filed a PIL in the Supreme Court on ragging in West Bengal, which the SC passed on to the West Bengal High Court. thanks to the PIL the West Bengal Prohibition of Ragging Act was eventually passed in 2002. Bhanja also argued that the IPC should be amended to making ragging a criminal offence. According to the news reports pasted below, the IPC was accordingly amended. How can I get the latest version of the IPC? I want to know which section of IPC is it, and what exactly the language is, etc. The online sources that have the full IPC don't seem to have been updated. Also: the IPC could not have been amended just for West Bengal, right? It must apply to the whole of India? And what is the procedure to amend the IPC? * * * "A division bench, comprising Mukul Gopal Mukherjee and Gitesh Ranjan Bhattacharya, had then directed the state government to amend the Indian Penal Code (IPC) so that ragging could be treated as a cognisable offence, that would enable the police to take up such cases without waiting for specific complaints." [ http://www.telegraphindia.com/1030814/asp/calcutta/story_2261967.asp ] [ Do the states have different IPC's? ] * * * Court raps state for laxity on ragging OUR LEGAL REPORTER Calcutta, Dec. 5: [ http://www.telegraphindia.com/1031206/asp/bengal/story_2650153.asp ] The high court today expressed its displeasure over the state's attitude in giving effect to the anti-ragging act and directed the government to take all possible steps to make people, especially students, aware of the consequence of the offence. A bench of Chief Justice A.K. Mathur and Justice A.K. Bannerjee also directed the government to initiate criminal proceedings against students guilty of ragging. The order followed a public interest litigation filed by advocate Tapas Bhanja alleging that the government had taken no action against guilty students. The petitioner also told the judges that the government did not carry out an earlier order of the court in this regard. A division bench of Justices Mukulgopal Mukherjee and Gitesh Ranjan Bhattacharya had directed the government on December 21, 1992, to make arrangements to amend the Indian Penal Code to bring ragging under the purview of the criminal act. In August this year, the division bench of Mathur and Bannerjee asked the state to file an affidavit. The government said in the affidavit the Anti-ragging Act, 2000, had been enacted. Government pleader Rabilal Moitra told the court that the law prescribed imprisonment and a fine of up to Rs 5,000 for guilty students. "The accused students will also be rusticated from their institutions and not be allowed to secure admission in other colleges." But Moitra failed to produce in court a copy of the law. The court finally expressed doubts about the existence of the law. "It appears that there is no such act at all." A copy was in court today and the judges said the government must ensure that the people know about the law's existence. * * * Straight Answers DEBASHIS KONAR TIMES NEWS NETWORK[ TUESDAY, FEBRUARY 01, 2005 07:20:49 PM ] [ http://timesofindia.indiatimes.com/articleshow/1007712.cms ] Tapas Kumar Bhanja, Legal activist, on his PIL against ragging and illegal activities in college hostels. What prompted you to file this PIL? I had filed a PIL in 1992, when a Shibpur BE College student's leg broke due to ragging. The vice chancellors in the state had submitted an affidavit to combat ragging in the court. In 1994, Calcutta High Court directed the government to set up a high level committee to check ragging. The Indian Penal Code was amended and ragging was declared as a criminal offence. The West Bengal anti-ragging act was also framed in 2000. But why did you file this PIL again? In 2003, many ragging incidents took place in various engineering colleges in the state. Many students were forced to drop out of these colleges. So I filed this PIL. The VCs were not doing enough to prevent ragging which they had vouched to do in their affidavit earlier. Most ragging in the hostels take place after the senior students consume alcohol. So, I have demanded that the entry of alcohol and narcotics in the hostel should be banned. Can the entry of alcohol and drugs in hostels be prevented? If the hostel authority are strict, it is possible to stop all illegal activities in it. There is a nexus in some hostels between the authorities and senior students and those in-charge also enjoy a share of alcohol and even watch pornographic films together with the students. What measures can help the situation? The head of the institutes should visit the hostels regularly to keep tab. There need to be a proper vigil so that students do not drink alcohol and freshers are not ragged. o o o o o Thanks! Shivam From radiofreealtair at gmail.com Mon Mar 14 07:50:10 2005 From: radiofreealtair at gmail.com (Anand Vivek Taneja) Date: Mon, 14 Mar 2005 07:50:10 +0530 Subject: [Commons-Law] Re: [Reader-list] Parody of WIPO's Copyright Comic In-Reply-To: References: Message-ID: <8178da99050313182023c11a2c@mail.gmail.com> Dear Lawrence, Brilliant. But still shying away from the vexed Lessig question of 'Asian Piracy', no? cheers, a On Fri, 11 Mar 2005 00:06:43 +0530, Lawrence Liang wrote: > Hi all > > The WIPO as a part of their pedagogic mission have been brining out a series > of comics on Copyright, TM and patent. > > A few of us at ALF have been working a response to these comics, and we have > now finished ver 1.0 of the response to the Copyright Comic and are working > on a response to TM and Patent Comics. > > What we have done is basically use the base comics to create a counter > story, by changing the dialogues in the blurbs and adding images etc, in > other words a remixed version of the WIPO Comics. Hope you enjoy it, and > Anyone interested in making changes to it, helping with the next versions on > patent TM etc please feel free to mail namita at altlawforum.org > > You can find these at > > Right2Copy Comic: http://www.altlawforum.org/lawmedia/CC.pdf > > The 'original' comic can be found > http://www.wipo.org/about-wipo/en/info_center/cartoons/pdf/copyright_cartoon > .pdf > > Lawrence > > _________________________________________ > reader-list: an open discussion list on media and the city. > Critiques & Collaborations > To subscribe: send an email to reader-list-request at sarai.net with subscribe in the subject header. > List archive: > -- Do not meddle in the affairs of dragons, because you are crunchy and taste good with ketchup. http://www.synchroni-cities.blogspot.com/ From sharan at sarai.net Mon Mar 14 18:09:35 2005 From: sharan at sarai.net (Awadhendra Sharan) Date: Mon, 14 Mar 2005 18:09:35 +0530 Subject: [Commons-Law] request-literature on law and scientific committees In-Reply-To: References: Message-ID: <42358607.2080306@sarai.net> Hi all, I am currently doing research on environmental conflicts in Delhi and am interested in knowing more about the use of scientific committees to arrive at legal decisions in India. Would appreciate any information regarding books/ articles that I could consult on this subject. These could be either historical in nature or dealing with contemporary issues, and need not be regarding environment alone but could be about any domain (medicine, technology etc.) in which there is an interface between science and law. Regards, Awadhendra Sharan Sarai/CSDS, Delhi From tahir.amin at btopenworld.com Mon Mar 14 10:58:48 2005 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Mon, 14 Mar 2005 05:28:48 +0000 (GMT) Subject: [Commons-Law] Fwd: WIPO Manifesto for Transparency, Participation, Balance and Access Message-ID: <20050314052848.12314.qmail@web86107.mail.ukl.yahoo.com> Dear all, Following on from the earlier email relating to the A2K Treaty and the accreditation issues to attend the Development Agenda meetings at WIPO in April, please sign the attached petition and pass it groups outside of this list. Many thanks Tahir Note: forwarded message attached. Send instant messages to your online friends http://uk.messenger.yahoo.com -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050314/41a16954/attachment.html -------------- next part -------------- An embedded message was scrubbed... From: Pedro de Paranagua Moniz Subject: WIPO Manifesto for Transparency, Participation, Balance and Access Date: Wed, 09 Mar 2005 23:36:37 +0000 Size: 52622 Url: http://mail.sarai.net/pipermail/commons-law/attachments/20050314/41a16954/attachment.mht From paivakil at yahoo.co.in Mon Mar 14 23:41:23 2005 From: paivakil at yahoo.co.in (Mahesh T. Pai) Date: Mon, 14 Mar 2005 23:41:23 +0530 Subject: [Commons-Law] IPC, amendment, confusion, ragging... In-Reply-To: References: Message-ID: <20050314181123.GA9149@nandini.home> Stop Ragging Campaign said on Sat, Mar 12, 2005 at 01:50:51PM -0800,: > Also: the IPC could not have been amended just for West Bengal, right? Possible. Each state can have separate amendments applicable only to that state. > [ Do the states have different IPC's? ] Criminal law is a concurrent subject. THe central laws if any, prevail in absence of law made by State govt. HTH. -- Mahesh T. Pai <<>> http://paivakil.port5.com Copying an idea is plagiarism. Copying many ideas from many authors is RESEARCH. From lawrence at altlawforum.org Tue Mar 15 09:35:31 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Tue, 15 Mar 2005 09:35:31 +0530 Subject: [Commons-Law] The gates of intellectual property Message-ID: Hi all Pretty interesting article on the gatesian philosophy of IP >From http://www.nzherald.co.nz/index.cfm?c_id=5&ObjectID=10115247 lawrence Adam Gifford: Gates up to old tricks over intellectual property rights   15.03.05   If you wondered how Bill Gates topped the Forbes rich list for the 11th year with a personal fortune of US$46.5 billion ($63 billion), look no further than the New Zealand Intellectual Property Office. Patent 525484, accepted by the office and now open for objections until the end of May, says Microsoft invented and owns the process whereby a word-processing document stored in a single XML file may be manipulated by applications that understand XML. It is one of a raft of patent applications Microsoft has dumped on the overworked staff of the office, and on patent offices worldwide. Some of them might have more merit than this particular piece of junk, but they are part of a strategic effort by Microsoft to control another generation of technology, just when its grip on the personal computer is being undermined by the Open Source movement. Gates¹ greatest achievement has never been the software he created - some is good, some is terrible, a lot is a knock-off of someone else¹s stuff - but the way he was able to get people to pay for it. When the precocious teenager was writing his first bits of code, computers were rare and expensive and owned by organisations that would pay people to write programs for them. That changed in January 1975 when Scientific American Œs cover featured the Altair 8800, a US$500 kitset computer developed by Albuquerque research engineer Ed Robert. Altair users had to solder the kit together and toggle switches to program the machine. Gates and his friend, Paul Allen, offered to develop a version of the BASIC operating system for the Altair. Roberts bought it, and allowed Gates and Allen to sell copies separately. When Gates discovered copies of the program were circulating among hobby computer clubs, he wrote "An open letter to hobbyists", published in a New Mexico club newsletter. "Almost a year ago, Paul Allen and myself, expecting the hobby market to expand, hired Monte Davidoff and developed Altair BASIC. Though the initial work only took two months, the three of us have spent most of the past year documenting, improving and adding features to BASIC. "The value of the computer time we have used exceeds US$40,000," the outraged Gates told the hobbyists. He said most Altair owners didn¹t pay for the BASIC they were using, and the royalties the trio received amounted to less than US$2 an hour. "Most of you steal your software," he scolded. That practice would prevent good software being written. Gates¹ manifesto set the stage for a software licensing revolution running alongside the personal computer revolution. Although many of the hobbyists disagreed with the principle and baulked at the US$500 price tag Gates and Allen had on their product, enough paid up to give a useful boost to their fledgling business. What rankled with the hobbyists was the fact that the 4kB BASIC interpreter appeared to be cribbed from other BASIC implementations in the public domain. The development work was done on a taxpayer-subsidised PDP-10 at Harvard University, where Gates was a student. Although they might have used US$40,000 of computer time, they didn¹t pay for it. Now the old-time hackers and hobbyists are back. The amount of good software they have created through the Open Source process, and the economic value that has had, showed up the flaws in the Microsoft taxation model. There are three viable models for software creation: firms, markets, and community-based peer-production, as Open Source is sometimes described. Patents allow firms to create artificial legal barriers that can hinder or prevent community-based peer-production, as those communities may lack the resources to apply for patents, object to patent applications, pay patent licensing fees or defend themselves from patent litigation. Allowing software patents is a decision favouring one form of software production over another. The internet works because the protocols and software behind it were developed by peer-production and left free as a software commons. Patent 525484 says if a document is created in Extensible Markup Language or XML, it may contain a schema or set of instructions for interpreting the document, which will be used when you want to use another application to make changes to the document. There is no novelty there. The whole idea of XML was to allow interoperability. Interoperability standards have been around for as long as people realised it would be a good idea for programs to talk to each other. The patent should be rejected for obviousness, if not for other criteria such as prior art. New Zealand Open Source Society president Peter Harrison said the society would object. The society is opposed to patents being issued for software at all, a point it made in its submission on a bill overhauling patent legislation. "Allowing software patents will damage the economy because it means few small players can enter the field against players with big software portfolios," Harrison said. "It creates uncertainty and fear in the software development field." Harrison said copyright protection was sufficient for software, as it allowed creators to license or control use of their creations. The issue is being able to protect or monopolise an activity just because you were first to do something obvious. If the patent is granted, other word-processing programs will not be able to interact with Microsoft XML word processing documents without Microsoft¹s permission. "It means if you write a document in Word and save it in an XML format, you have to have Microsoft¹s permission to read it or change it," he said. Earlier versions of Microsoft Word had no such patent protection, and although it has taken years to achieve, programs like Open Office can now interact directly with Word. Microsoft has spent hundreds of millions, if not billions, over the years to make its vision of intellectual property rights the standard. It won its biggest victories at home, but that vision is now being steamrollered around the world through bilateral free trade agreements. Politicians still talk of a free trade agreement as benefiting this country. The reality is intellectual property rights will be high on the US agenda and it won¹t be to this country¹s benefit. From hbs.law at gmail.com Tue Mar 15 21:34:05 2005 From: hbs.law at gmail.com (Hasit seth) Date: Tue, 15 Mar 2005 11:04:05 -0500 Subject: [Commons-Law] Re: The gates of intellectual property (Lawrence Liang) (Hasit Seth) In-Reply-To: <20050315110008.63B1F28D8F9@mail.sarai.net> References: <20050315110008.63B1F28D8F9@mail.sarai.net> Message-ID: <8b60429e05031508049ad5857@mail.gmail.com> Hi, Interesting article. The New Zealand patent if it tries to claim XML as being proprietary then it is utterly stupid. Cannot comment more without reading the text of the patent. I am not a big fan of Microsoft, but as a computer enthusiast I find the characterization of Gates and Microsoft in early PC history is terribly twisted. Microsoft's DOS OS was the prime reason for personal computing being affordable today. CP/M the only major "PC" OS around at the time was proprietary. IBM's PC-DOS (developed by MS) was expensive (or impossible at one stage) for PC Clone makers to license through IBM. Apple being the paragon of proprietary stuff had no interest (and still doesn't) in licensing its OSs. MS-DOS is what ran the PC-Clone market. Technical merits of MS-DOS is a different topic, and GNU certainly didn't make personal computing happen. If one understands the difficulty that Linux is facing today in supporting thousands of different types of hardware devices from multiple vendors, therein lies the historical value of MS-DOS and Microsoft. Linux enthusiasts are doing an admirable job of supporting drivers for a lot of hardware but still a lot needs to be done (e.g., Wireless cards with proprietary firmware are a pain to setup). DOS ran on every kind of PC clone, and Windows still supports the widest variety of garden hardware. Yes, MS monopolized the Windows Application market, but this deserves a closer look. But before that on DOS platform, MS just provided the OS - The Wordprocessing package was Wordstar, The Spreadsheet was Lotus 1-2-3 and The Database was dBase III+ - all non-MS applications. All these non-MS application makers very quite slow in releasing their Windows versions. Most were so wedded to the text based MS-DOS that they just could not make the transition fast enough (e.g, dBase III+ or Wordstar). Nobody wanted to develop applications till Windows 3.1 became popular. MS filled in this space (of course with head start from knowing Windows codebase) with acceptable Apps such as Word and Excel. Developing these Apps is hardly a trivial task where one can say that MS just hacked together a few pieces of off-shelf software. Just look at the effort required in OpenOffice to understand the nature of the task. Other OS Vendors lost faith in the PC market - principal being IBM with a much superior offering of OS/2. MS continued developing both OS and App market, with entry barriers getting higher and higher for other players. Sure they were monopolistic, but just look at Apple or IBM in similar circumstances and they are no different. Software is not easy to develop, especially complex and large applications. For example, GNU's Hurd kernel is years in making without any significant results. It is just a damn tough job. Linux enthusiasts will rave about Vi and Emacs, GNU CC and Make as all that you need to develop applications. May be. But MS's contribution, from a purely technical and developer producity viewpoint, in Visual Basic is just immense. Nothing comes close in ease of developing a GUI app - whether free or proprietary application. I know there is a ongoing Gambas project to close Visual Basic, but then like most open source projects it is a cloning effort. If we accuse of MS of rehashing and repackaging existing technology, open source software is no different with their best efforts being admirable clones (some better, some worse) of existing proprietary OSs or Applications. While MS is a terrible company, a classic monopolist at many times, its historical role in bringing affordable computing to masses cannot be just wished away. Regards, Hasit Seth > Message: 2 > Date: Tue, 15 Mar 2005 09:35:31 +0530 > From: Lawrence Liang > Subject: [Commons-Law] The gates of intellectual property > To: Commons Law > Message-ID: > Content-Type: text/plain; charset="ISO-8859-1" > > Hi all > > Pretty interesting article on the gatesian philosophy of IP > > >From http://www.nzherald.co.nz/index.cfm?c_id=5&ObjectID=10115247 > > lawrence > > Adam Gifford: Gates up to old tricks over intellectual property rights > > > 15.03.05 > > > If you wondered how Bill Gates topped the Forbes rich list for the 11th year > with a personal fortune of US$46.5 billion ($63 billion), look no further > than the New Zealand Intellectual Property Office. > > Patent 525484, accepted by the office and now open for objections until the > end of May, says Microsoft invented and owns the process whereby a > word-processing document stored in a single XML file may be manipulated by > applications that understand XML. > > It is one of a raft of patent applications Microsoft has dumped on the > overworked staff of the office, and on patent offices worldwide. > > Some of them might have more merit than this particular piece of junk, but > they are part of a strategic effort by Microsoft to control another > generation of technology, just when its grip on the personal computer is > being undermined by the Open Source movement. > > Gates¹ greatest achievement has never been the software he created - some is > good, some is terrible, a lot is a knock-off of someone else¹s stuff - but > the way he was able to get people to pay for it. > > When the precocious teenager was writing his first bits of code, computers > were rare and expensive and owned by organisations that would pay people to > write programs for them. > > That changed in January 1975 when Scientific American Œs cover featured the > Altair 8800, a US$500 kitset computer developed by Albuquerque research > engineer Ed Robert. > > Altair users had to solder the kit together and toggle switches to program > the machine. > > Gates and his friend, Paul Allen, offered to develop a version of the BASIC > operating system for the Altair. Roberts bought it, and allowed Gates and > Allen to sell copies separately. > > When Gates discovered copies of the program were circulating among hobby > computer clubs, he wrote "An open letter to hobbyists", published in a New > Mexico club newsletter. > > "Almost a year ago, Paul Allen and myself, expecting the hobby market to > expand, hired Monte Davidoff and developed Altair BASIC. Though the initial > work only took two months, the three of us have spent most of the past year > documenting, improving and adding features to BASIC. > > "The value of the computer time we have used exceeds US$40,000," the > outraged Gates told the hobbyists. > > He said most Altair owners didn¹t pay for the BASIC they were using, and the > royalties the trio received amounted to less than US$2 an hour. > > "Most of you steal your software," he scolded. That practice would prevent > good software being written. > > Gates¹ manifesto set the stage for a software licensing revolution running > alongside the personal computer revolution. > > Although many of the hobbyists disagreed with the principle and baulked at > the US$500 price tag Gates and Allen had on their product, enough paid up to > give a useful boost to their fledgling business. > > What rankled with the hobbyists was the fact that the 4kB BASIC interpreter > appeared to be cribbed from other BASIC implementations in the public > domain. > > The development work was done on a taxpayer-subsidised PDP-10 at Harvard > University, where Gates was a student. Although they might have used > US$40,000 of computer time, they didn¹t pay for it. > > Now the old-time hackers and hobbyists are back. The amount of good software > they have created through the Open Source process, and the economic value > that has had, showed up the flaws in the Microsoft taxation model. > > There are three viable models for software creation: firms, markets, and > community-based peer-production, as Open Source is sometimes described. > > Patents allow firms to create artificial legal barriers that can hinder or > prevent community-based peer-production, as those communities may lack the > resources to apply for patents, object to patent applications, pay patent > licensing fees or defend themselves from patent litigation. > > Allowing software patents is a decision favouring one form of software > production over another. > > The internet works because the protocols and software behind it were > developed by peer-production and left free as a software commons. > > Patent 525484 says if a document is created in Extensible Markup Language or > XML, it may contain a schema or set of instructions for interpreting the > document, which will be used when you want to use another application to > make changes to the document. There is no novelty there. The whole idea of > XML was to allow interoperability. > > Interoperability standards have been around for as long as people realised > it would be a good idea for programs to talk to each other. > > The patent should be rejected for obviousness, if not for other criteria > such as prior art. > > New Zealand Open Source Society president Peter Harrison said the society > would object. > > The society is opposed to patents being issued for software at all, a point > it made in its submission on a bill overhauling patent legislation. > > "Allowing software patents will damage the economy because it means few > small players can enter the field against players with big software > portfolios," Harrison said. > > "It creates uncertainty and fear in the software development field." > > Harrison said copyright protection was sufficient for software, as it > allowed creators to license or control use of their creations. > > The issue is being able to protect or monopolise an activity just because > you were first to do something obvious. If the patent is granted, other > word-processing programs will not be able to interact with Microsoft XML > word processing documents without Microsoft¹s permission. > > "It means if you write a document in Word and save it in an XML format, you > have to have Microsoft¹s permission to read it or change it," he said. > > Earlier versions of Microsoft Word had no such patent protection, and > although it has taken years to achieve, programs like Open Office can now > interact directly with Word. > > Microsoft has spent hundreds of millions, if not billions, over the years to > make its vision of intellectual property rights the standard. It won its > biggest victories at home, but that vision is now being steamrollered around > the world through bilateral free trade agreements. Politicians still talk of > a free trade agreement as benefiting this country. The reality is > intellectual property rights will be high on the US agenda and it won¹t be > to this country¹s benefit. > > ------------------------------ > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > > End of commons-law Digest, Vol 20, Issue 18 > ******************************************* > From sudhir at circuit.sarai.net Wed Mar 16 15:30:41 2005 From: sudhir at circuit.sarai.net (sudhir at circuit.sarai.net) Date: Wed, 16 Mar 2005 11:00:41 +0100 Subject: [Commons-Law] Re: The gates of intellectual property (Lawrence Liang) (Hasit Seth) In-Reply-To: <8b60429e05031508049ad5857@mail.gmail.com> References: <20050315110008.63B1F28D8F9@mail.sarai.net> <8b60429e05031508049ad5857@mail.gmail.com> Message-ID: <5cbaf66cc761ec00466ab779c2768c84@sarai.net> Dear all Thanks Hasit for that interesting post on the early computer industry. I would suggest that there is one important actor left out of this story - the University and Research Institutes! Most accounts of computer software innovation rely on industry based innovation models. As you rightly point out a large part of such innovation is generating clones, marginally differentiated for the market. I am curious whether innovation in computer software breaks down into the Basic and Applied Science categories - where basic and fundamental innovation more often occurs in the University and Research Institute rather than the software company. Best Sudhir many firms are the level of innovation On March 15, 5:04 pm Hasit seth wrote: > Hi, > > Interesting article. The New Zealand patent if it tries to claim XML > as being proprietary then it is utterly stupid. Cannot comment more > without reading the text of the patent. > > I am not a big fan of Microsoft, but as a computer enthusiast I find > the characterization of Gates and Microsoft in early PC history is > terribly twisted. Microsoft's DOS OS was the prime reason for > personal computing being affordable today. CP/M the only major "PC" > OS around at the time was proprietary. IBM's PC-DOS (developed by MS) > was expensive (or impossible at one stage) for PC Clone makers to > license through IBM. Apple being the paragon of proprietary stuff had > no interest (and still doesn't) in licensing its OSs. MS-DOS is what > ran the PC-Clone market. Technical merits of MS-DOS is a different > topic, and GNU certainly didn't make personal computing happen. If > one understands the difficulty that Linux is facing today in > supporting thousands of different types of hardware devices from > multiple vendors, therein lies the historical value of MS-DOS and > Microsoft. Linux enthusiasts are doing an admirable job of supporting > drivers for a lot of hardware but still a lot needs to be done (e.g., > Wireless cards with proprietary firmware are a pain to setup). DOS > ran on every kind of PC clone, and Windows still supports the widest > variety of garden hardware. > > Yes, MS monopolized the Windows Application market, but this deserves > a closer look. But before that on DOS platform, MS just provided the > OS - The Wordprocessing package was Wordstar, The Spreadsheet was > Lotus 1-2-3 and The Database was dBase III+ - all non-MS > applications. All these non-MS application makers very quite slow in > releasing their Windows versions. Most were so wedded to the text > based MS-DOS that they just could not make the transition fast enough > (e.g, dBase III+ or Wordstar). Nobody wanted to develop applications > till Windows 3.1 became popular. MS filled in this space (of course > with head start from knowing Windows codebase) with acceptable Apps > such as Word and Excel. Developing these Apps is hardly a trivial > task where one can say that MS just hacked together a few pieces of > off-shelf software. Just look at the effort required in OpenOffice to > understand the nature of the task. Other OS Vendors lost faith in the > PC market - principal being IBM with a much superior offering of OS/2. > MS continued developing both OS and App market, with entry barriers > getting higher and higher for other players. Sure they were > monopolistic, but just look at Apple or IBM in similar circumstances > and they are no different. > > Software is not easy to develop, especially complex and large > applications. For example, GNU's Hurd kernel is years in making > without any significant results. It is just a damn tough job. Linux > enthusiasts will rave about Vi and Emacs, GNU CC and Make as all that > you need to develop applications. May be. But MS's contribution, > from a purely technical and developer producity viewpoint, in Visual > Basic is just immense. Nothing comes close in ease of developing a > GUI app - whether free or proprietary application. I know there is a > ongoing Gambas project to close Visual Basic, but then like most open > source projects it is a cloning effort. > > If we accuse of MS of rehashing and repackaging existing technology, > open source software is no different with their best efforts being > admirable clones (some better, some worse) of existing proprietary OSs > or Applications. While MS is a terrible company, a classic > monopolist at many times, its historical role in bringing affordable > computing to masses cannot be just wished away. > > Regards, > Hasit Seth > > > Message: 2 > > Date: Tue, 15 Mar 2005 09:35:31 +0530 > > From: Lawrence Liang > > Subject: [Commons-Law] The gates of intellectual property > > To: Commons Law > > Message-ID: > > Content-Type: text/plain; charset="ISO-8859-1" > > > > Hi all > > > > Pretty interesting article on the gatesian philosophy of IP > > > > > From http://www.nzherald.co.nz/index.cfm?c_id=5&ObjectID=10115247 > > > > lawrence > > > > Adam Gifford: Gates up to old tricks over intellectual property > > rights > > > > 15.03.05 > > > > > > If you wondered how Bill Gates topped the Forbes rich list for the > > 11th year with a personal fortune of US$46.5 billion ($63 > > billion), look no further than the New Zealand Intellectual > > Property Office. > > Patent 525484, accepted by the office and now open for objections > > until the end of May, says Microsoft invented and owns the process > > whereby a word-processing document stored in a single XML file may > > be manipulated by applications that understand XML. > > > > It is one of a raft of patent applications Microsoft has dumped on > > the overworked staff of the office, and on patent offices > > worldwide. > > Some of them might have more merit than this particular piece of > > junk, but they are part of a strategic effort by Microsoft to > > control another generation of technology, just when its grip on > > the personal computer is being undermined by the Open Source > > movement. > > Gates¹ greatest achievement has never been the software he > > created - some is good, some is terrible, a lot is a knock-off of > > someone else¹s stuff - but the way he was able to get people to > > pay for it. > > When the precocious teenager was writing his first bits of code, > > computers were rare and expensive and owned by organisations that > > would pay people to write programs for them. > > > > That changed in January 1975 when Scientific American Œs cover > > featured the Altair 8800, a US$500 kitset computer developed by > > Albuquerque research engineer Ed Robert. > > > > Altair users had to solder the kit together and toggle switches to > > program the machine. > > > > Gates and his friend, Paul Allen, offered to develop a version of > > the BASIC operating system for the Altair. Roberts bought it, and > > allowed Gates and Allen to sell copies separately. > > > > When Gates discovered copies of the program were circulating among > > hobby computer clubs, he wrote "An open letter to hobbyists", > > published in a New Mexico club newsletter. > > > > "Almost a year ago, Paul Allen and myself, expecting the hobby > > market to expand, hired Monte Davidoff and developed Altair BASIC. > > Though the initial work only took two months, the three of us have > > spent most of the past year documenting, improving and adding > > features to BASIC. > > "The value of the computer time we have used exceeds US$40,000," > > the outraged Gates told the hobbyists. > > > > He said most Altair owners didn¹t pay for the BASIC they were > > using, and the royalties the trio received amounted to less than > > US$2 an hour. > > "Most of you steal your software," he scolded. That practice would > > prevent good software being written. > > > > Gates¹ manifesto set the stage for a software licensing > > revolution running alongside the personal computer revolution. > > > > Although many of the hobbyists disagreed with the principle and > > baulked at the US$500 price tag Gates and Allen had on their > > product, enough paid up to give a useful boost to their fledgling > > business. > > What rankled with the hobbyists was the fact that the 4kB BASIC > > interpreter appeared to be cribbed from other BASIC > > implementations in the public domain. > > > > The development work was done on a taxpayer-subsidised PDP-10 at > > Harvard University, where Gates was a student. Although they might > > have used US$40,000 of computer time, they didn¹t pay for it. > > > > Now the old-time hackers and hobbyists are back. The amount of > > good software they have created through the Open Source process, > > and the economic value that has had, showed up the flaws in the > > Microsoft taxation model. > > There are three viable models for software creation: firms, > > markets, and community-based peer-production, as Open Source is > > sometimes described. > > Patents allow firms to create artificial legal barriers that can > > hinder or prevent community-based peer-production, as those > > communities may lack the resources to apply for patents, object to > > patent applications, pay patent licensing fees or defend > > themselves from patent litigation. > > Allowing software patents is a decision favouring one form of > > software production over another. > > > > The internet works because the protocols and software behind it > > were developed by peer-production and left free as a software > > commons. > > Patent 525484 says if a document is created in Extensible Markup > > Language or XML, it may contain a schema or set of instructions > > for interpreting the document, which will be used when you want to > > use another application to make changes to the document. There is > > no novelty there. The whole idea of XML was to allow > > interoperability. > > Interoperability standards have been around for as long as people > > realised it would be a good idea for programs to talk to each > > other. > > The patent should be rejected for obviousness, if not for other > > criteria such as prior art. > > > > New Zealand Open Source Society president Peter Harrison said the > > society would object. > > > > The society is opposed to patents being issued for software at > > all, a point it made in its submission on a bill overhauling > > patent legislation. > > "Allowing software patents will damage the economy because it > > means few small players can enter the field against players with > > big software portfolios," Harrison said. > > > > "It creates uncertainty and fear in the software development > > field." > > Harrison said copyright protection was sufficient for software, as > > it allowed creators to license or control use of their creations. > > > > The issue is being able to protect or monopolise an activity just > > because you were first to do something obvious. If the patent is > > granted, other word-processing programs will not be able to > > interact with Microsoft XML word processing documents without > > Microsoft¹s permission. > > "It means if you write a document in Word and save it in an XML > > format, you have to have Microsoft¹s permission to read it or > > change it," he said. > > Earlier versions of Microsoft Word had no such patent protection, > > and although it has taken years to achieve, programs like Open > > Office can now interact directly with Word. > > > > Microsoft has spent hundreds of millions, if not billions, over > > the years to make its vision of intellectual property rights the > > standard. It won its biggest victories at home, but that vision is > > now being steamrollered around the world through bilateral free > > trade agreements. Politicians still talk of a free trade agreement > > as benefiting this country. The reality is intellectual property > > rights will be high on the US agenda and it won¹t be to this > > country¹s benefit. > > ------------------------------ > > > > > > _______________________________________________ > > commons-law mailing list > > commons-law at sarai.net > > https://mail.sarai.net/mailman/listinfo/commons-law > > > > End of commons-law Digest, Vol 20, Issue 18 > > ******************************************* > > > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > From vivek at sarai.net Wed Mar 16 16:22:57 2005 From: vivek at sarai.net (Vivek Narayanan) Date: Wed, 16 Mar 2005 16:22:57 +0530 Subject: [Commons-Law] Artists Break With Industry on File Sharing Message-ID: <42381009.6020400@sarai.net> Artists Break With Industry on File Sharing Some Musicians Say Web Services Can Be Valuable Means of Distribution By Jonathan Krim Washington Post Staff Writer Tuesday, March 1, 2005; Page E05 http://www.washingtonpost.com/wp-dyn/articles/A61254-2005Feb28.html A prominent group of musicians and artists, breaking with colleagues and the major entertainment studios, is urging the Supreme Court not to hold online file- sharing services responsible for the acts of users who illegally trade songs, movies and software. The group, which includes representatives of Steve Winwood, rapper Chuck D and the band Heart, said in court papers to be filed today that it condemns the stealing of copyrighted works. But it argues that popular services such as Grokster, Kazaa and others also provide a legal and critical alternative for artists to distribute their material. "Musicians are not universally united in opposition to peer-to-peer file sharing" as the major records companies claim, according to a draft of the group's court filing. "To the contrary, many musicians find peer-to-peer technology . . . allows them easily to reach a worldwide online audience. And to many musicians, the benefits of this . . . strongly outweigh the risks of copyright infringement." The arguments are a stark counterweight to an aggressive push by the major recording and movie studios, and hundreds of musicians, actors and composers, to persuade the Supreme Court that file sharing damages the livelihoods of artists by robbing them of proper compensation for their work. Specifically, the studios want the court to rule that Grokster is liable for the file sharing by many of its users because it is primarily used for piracy and because it does not take steps to prevent it. The court is scheduled to hear the case March 29. But the artists opposing the industry's position said shutting down the major file-sharing services, which are used by tens of millions of people worldwide, would instead rob them of a chance to gain exposure and income. Before online file sharing, "distribution of recordings to retailers was controlled largely by a few large national record companies and by several 'independent' labels," they argue. "Young people aspiring to be musicians faced daunting odds of ever being signed by a record label." One musician, Jason Mraz, said half of the fans who pay to see him in concert heard about him through illegal downloading, according to the court filing. Meanwhile, file sharing gives accomplished artists, such as Janis Ian, a chance to control distribution of their work that might no longer be deemed worthy of commercial promotion and sales, the group said. Attorneys for Grokster argued in its court filing that file-sharing services are used extensively for distributing works legally, either by permission of the artist or because copyrights have expired or were never sought. As a result, the company argues, it meets the legal standard set by the Supreme Court in 1984, when it ruled that Sony Corp.'s Betamax television recorder was not liable for copyright infringement because it had substantial legal uses. The entertainment industry's position also was opposed today by other file-sharing firms, major telecommunications companies, electronics makers, and coalitions of computer scientists, inventors, consumer and digital-rights advocacy groups. They argue that holding technology creators, or the companies that handle Internet traffic, liable for the acts of their users would make it too risky for innovators to develop products that have legal uses and which enhance the enjoyment of digital entertainment. "This case is simply the latest in a long string of instances in which copyright owners, frightened by a new technological development" seek to place restrictions on electronic devices, Internet access services, and even on personal computers to try to prevent piracy, said a filing by the major telephone, wireless and Internet service providers. Instead, said companies including SBC Communications Inc. and Verizon Communications Inc., the entertainment industry can properly continue to sue individual file- swappers who break the law. The Recording Industry Association of America has sued more than 6,500 people, and announced another 753 suits yesterday, including against some Grokster users. The telecommunications companies also said Congress should decide how to punish services that exist solely to encourage and enable piracy. The Distributed Computing Industry Association, which represents file-sharing and other technology firms, said the entertainment industry's real agenda is to protect its monopoly. Grokster "threatens that monopoly by providing a near cost-free distribution mechanism, which supports far more content than even Web-based distribution systems," the group said. Other groups filing briefs in support of Grokster's position include the Consumer Electronics Association, the Computer & Communications Industry Association, Consumers Union, the Consumer Federation of America, and Public Knowledge, a digital-rights advocacy group. _______________________________________________________ portside (the left side in nautical parlance) is a news, discussion and debate service of the Committees of Correspondence for Democracy and Socialism. It aims to provide varied material of interest to people on the left. For answers to frequently asked questions: To subscribe, unsubscribe or change settings: To submit material, paste into an email and send to: (postings are moderated) For assistance with your account: To search the portside archive: _______________________________________________ Foil-l mailing list Foil-l at insaf.net http://insaf.net/mailman/listinfo/foil-l_insaf.net -- Vivek Narayanan Senior Content Editor (English) The Sarai Programme Centre for the Study of Developing Societies 29 Rajpur Road, Delhi 110054. Work Phone: (91-11) 2396 0040 Mobile: (91-0) 98109 36654 Fax: (91-11) 2392 8391 From prabhuram at gmail.com Wed Mar 16 17:24:13 2005 From: prabhuram at gmail.com (Ram) Date: Wed, 16 Mar 2005 12:54:13 +0100 Subject: [Commons-Law] Financial Express: Embedded software patenting unlikely Message-ID: <68752c9f0503160354769845f4@mail.gmail.com> >From Financial Express Embedded software patenting unlikely K G NARENDRANATH To appease the Left, the UPA government is likely to drop software patenting from the Patent Bill 2005. An assurance to this effect has already been given by the government to parliamentarians from Left parties, as a trade-off for allowing enactment of the Bill. The December Patent Ordinance had allowed patenting of "software embedded with hardware" as also software-hardware combinations. Patenting will, however, be subject to specified novelty conditions. The ordinance did not permit patenting of software, per se. Information technology (IT) software and services majors including Infosys, Wipro and TCS have been vocal about exploring the embedded solutions and mobile computing space, under the patent regime. Patent regime would help increase India's software exports - about $15 billion at present - manifold, they contend. Cyber expert and Supreme Court advocate Pawan Duggal pointed out that in the US, software itself is patentable. So are business process methods embedded in hardware. "Not allowing software and software embedded with hardware will cut significantly India's share in the patent pie," he said. Fuzzy logics and mathematical algorithms that software are, assume "technical effect" with hardware interaction and should therefore be patentable, according to some industry analysts. While the government shares IT industry's view, the Left prognosticates that only foreign MNCs like Microsoft and IBM would benefit by software patenting. The prime minister's office (PMO) is keen to remove the hurdles in the passage of the Patent Bill, obligated under the TRIPS agreement. Defence minister Pranab Mukherjee is already acting as pointman between the Left and the government to thrash out the thorny issues. The source said scrapping software patenting proviso was one formula that has found favour in the course. Globally, software patenting is a highly contentious issue, with lobbies working hard in either directions. Those who oppose such patents argue that sole ownership of software would practically scuttle innovation, while patents are in fact meant to reward and promote innovation. It is more or less an accepted notion that software per se must not qualify for patents. The government, sources said, is also looking at couching the Patent Bill slightly differently from the Ordinance, even as it is firm on retaining its essential character. The plan is to introduce some minor amendments to the Ordinance. "It is unlikely that the the Bill will be referred to a select committee of (Parliament)," said an official source, adding that since protracted parliamentary committee deliberations had gone into the Ordinance as inputs, a repeat of the same seemed redundant. The Left parties are learnt to be in constant dialogue with the government, asking for modifications of major provisions of the Ordinance. According to a senior Left leader, the patentability criteria should be "tightened," and compulsory licensing "broadened" to make available affordable drugs to the needy. The Left also wants pre-grant opposition provision retained in the law as it was before the Ordinance. From rohangeorge at gmail.com Thu Mar 17 01:42:07 2005 From: rohangeorge at gmail.com (Rohan George) Date: Thu, 17 Mar 2005 01:42:07 +0530 Subject: [Commons-Law] Mallu Rock! Amazing video Message-ID: Maccha this is why mallus rock da! Friend of mine made this video. I am DAMN kicked. you can either stream this or download it. Your choice. http://www.poormanproduction.com/musicvideos.htm From force at chello.se Thu Mar 17 03:14:48 2005 From: force at chello.se (Palle Torsson) Date: Wed, 16 Mar 2005 22:44:48 +0100 Subject: [Commons-Law] artliberated.org Message-ID: <000001c52a71$60c17790$e09459d5@scum> Dear You, I am very happy that I found you list and you project. My name is Palle Torsson and I am a Swedish artists working with a project called artliberated.org. I hope this interest you. ********************************* Welcome to Artliberated.org: Open call 2005: Artliberated would like to receive knowledge about art-works that has been censored or attacked through legal action either on moral or copyright grounds. We would also like to get in contact with professionals in art, law and research that have an interest in these matters and that would like to engage in the artliberated network. Palle Torsson in collaboration with piratbyran.org is proud to present Artliberated.org. The Artliberated Network will consist of unique professionals in art, law and research. And support visual artists when a work is confronted with legal threats and when a work is being censored either on moral or on copyright grounds. The Artliberated Network will work as the needed stabilizer between the artist and censorship opponents by providing the artist with power and knowledge. And will provide hands on help with specific case and provide general guiding how to act in copyright matters in the visual arts. The Artliberated Network will also work to change and reform the relationship between the artist and companies, in the public interest of free flow of information and ideas. The project will be structured around the web site with a database of reference cases were new cases are documented and historical researched. The web site will also work as the center and administrative tool for the network of artist, lawyers, institutions, curators, galleries, software programmers. Researcher and the general public will be provided free access to the website. We strongly believe that active participation in society is a key to engagement, history and democracy. This requires not only passive consumption of cultural products but the possibility the change the meaning of these products. And that nothing is done in isolation and that change and art fundamentally conflicts with a protective use of the idea of copyright. By provide artist with this network we think we can make our cultural heritage greater and give a new embodiment to creation in the digital age. For more information and further questions please contact: Palle Torsson, Artist and initiator of The Artliberated Network and Artliberted.org palle.torsson at artliberated.org **************************************** From hbs.law at gmail.com Thu Mar 17 11:35:02 2005 From: hbs.law at gmail.com (Hasit seth) Date: Thu, 17 Mar 2005 01:05:02 -0500 Subject: [Commons-Law] Re: The gates of intellectual property (Lawrence Liang) (Hasit Seth) (Sudhir) (Hasit) In-Reply-To: <20050316110008.1485228D913@mail.sarai.net> References: <20050316110008.1485228D913@mail.sarai.net> Message-ID: <8b60429e0503162205224b09f3@mail.gmail.com> Hi Sudhir and Everyone, This is just a subjective take on comp. sci. research in an attempt to answer Sudhir's query. I do not believe that there is an artificial divide between "basic" computer science research done in Universities and "applied" stuff being done in the industry. Mathematics that relates to computer science is done largely in Universities, but fundamental theoretical computer science (which is some math anyway) is done everywhere. Best of computer science theorists Donald Knuth of Stanford is an active programmer though a mathematician by training. But Al Aho, who crystallized compiler research, works at Bell Laboratories and does a lot of theory. Some esoteric stuff such as "hard" Artificial Intelligence has only academic interest because industry sank a lot of money in it without any good results. But fields such as searching (Google), computer vision (Siemens and tons of other companies), speech recognition (IBM, Microsoft, Matsushita...) have a lot their theory and applications being done both in academic and industrial world. Historically, terrific stuff has come out of industry "incubators" such as Bell Labs (UNIX) and Xerox PARC (Ethernet, Mouse, GUI, Laser Printers...). Bigger issue than academic/industry divide is the lack of major breakthroughs in research. I understand that many readers of this list are interested in Legal/Social/Ethical/Political/Emotional/Activism side of innovation and not the technical aspects, but any discussion of these aspects of invention without considering technology issues is bizarre. Open source is a reaction to this lack of major innovation in computer industry. For example, from a user's viewpoint why should I upgrade from Windows 95 to Windows XP and pay any extra money for it when all I get is better eye-candy on screen but nothing significant functionally? A group of hackers can get together and clone this OS and applications and not pay the "windows upgrade tax" to Microsoft. That is what is Linux today. Earlier such cloning was for academic purposes or just for hacking fun - BSD is a clone of Linux, GNU is a UNIX clone, GNU/Linux is still a UNIX clone. Yes, it is "free" - that is the innovation here! but technology wise? not a major breakthrough. To say this is NOT to undermine the TREMENDOUS efforts of BSD/GNU/Linux hackers, because in first place writing the code and then making everything work through a community effort is just a fantastic achievement. For those who are interested in state of system software research, Rob Pike of Bell Labs, a respected UNIX hacker, wrote a paper in 2000 about how system software research has become stagnant (here: http://www.cs.bell-labs.com/who/rob/utah2000.pdf) Now what could be a breakthrough in software? No predictions. But take an example: Continuous speech recognition where user speaks normally to computer (with no special microphones, no a priori training of speech models, etc.; this does mean an intelligent conversation, but recognizing continuous spoken words syntactically and semantically) is a tough problem, and any operating system/application solving that will be a major breakthrough. Everyone - academia, industry and open source community is trying to solve this problem since years, and patents are least of hurdles here, though a lot of approaches (neither of which is entirely workable) are patented. And users will pay for such an invention, because they will see it is a major breakthrough. If this comes through industry-patented tech route, people will still pay for it but its spread will perhaps be a little slower. Academic debates will continue about why it is evil to have this patented, but people will be more interested in getting hands on this technology rather than debate about it. If users pay for a better toaster or television, then why not better software? If open source community achieves this first, the spread will be perhaps much faster. The point is not who does it, the point is how to do it? when will it happen? Right now the state of research in continuous speech recognition is like Edison trying thousands of chemical compounds to build a storage battery with just failures in sight ahead, but a lot of hope ahead. In many cases like these, invention is not a David vs. Goliath fight between open source vs. patents, industry vs. academia or industry vs. open community. There may be skirmishes on the way, but in a bigger picture it is rather every-kind-of-effort against the scientifically unknown and uninvented. For business to chase such tough problems it needs money to keep payroll for programmers going. For open source community, it needs interest of the community to be kept going to solve such long term non-cloning type demanding problems. In short, invention is not simply Archimedes getting an "Eureka" idea and running out of his bathtub (modesty and clothing is not at issue here!) straight to the Greek patent office and blocking all invention related to the Eureka and hoarding billions in money by monopolizing the use of "Eureka" through a patent. This could happen, but usually it is lot more complex than this. Regards, Hasit Seth > > Message: 2 > Date: Wed, 16 Mar 2005 11:00:41 +0100 > From: > Subject: Re: [Commons-Law] Re: The gates of intellectual property > (Lawrence Liang) (Hasit Seth) > To: Hasit seth > Cc: commons-law at sarai.net > Message-ID: <5cbaf66cc761ec00466ab779c2768c84 at sarai.net> > > Dear all > > Thanks Hasit for that interesting post on the early computer industry. I > would suggest that there is one important actor left out of this story - > the University and Research Institutes! > > Most accounts of computer software innovation rely on industry based > innovation models. As you rightly point out a large part of such innovation > is generating clones, marginally differentiated for the market. I am > curious whether innovation in computer software breaks down into the Basic > and Applied Science categories - where basic and fundamental innovation > more often occurs in the University and Research Institute rather than the > software company. > > Best > Sudhir > > many firms are the level of innovation On March 15, 5:04 pm Hasit seth > wrote: > > Hi, > > > > Interesting article. The New Zealand patent if it tries to claim XML > > as being proprietary then it is utterly stupid. Cannot comment more > > without reading the text of the patent. > > > > I am not a big fan of Microsoft, but as a computer enthusiast I find > > the characterization of Gates and Microsoft in early PC history is > > terribly twisted. Microsoft's DOS OS was the prime reason for > > personal computing being affordable today. CP/M the only major "PC" > > OS around at the time was proprietary. IBM's PC-DOS (developed by MS) > > was expensive (or impossible at one stage) for PC Clone makers to > > license through IBM. Apple being the paragon of proprietary stuff had > > no interest (and still doesn't) in licensing its OSs. MS-DOS is what > > ran the PC-Clone market. Technical merits of MS-DOS is a different > > topic, and GNU certainly didn't make personal computing happen. If > > one understands the difficulty that Linux is facing today in > > supporting thousands of different types of hardware devices from > > multiple vendors, therein lies the historical value of MS-DOS and > > Microsoft. Linux enthusiasts are doing an admirable job of supporting > > drivers for a lot of hardware but still a lot needs to be done (e.g., > > Wireless cards with proprietary firmware are a pain to setup). DOS > > ran on every kind of PC clone, and Windows still supports the widest > > variety of garden hardware. > > > > Yes, MS monopolized the Windows Application market, but this deserves > > a closer look. But before that on DOS platform, MS just provided the > > OS - The Wordprocessing package was Wordstar, The Spreadsheet was > > Lotus 1-2-3 and The Database was dBase III+ - all non-MS > > applications. All these non-MS application makers very quite slow in > > releasing their Windows versions. Most were so wedded to the text > > based MS-DOS that they just could not make the transition fast enough > > (e.g, dBase III+ or Wordstar). Nobody wanted to develop applications > > till Windows 3.1 became popular. MS filled in this space (of course > > with head start from knowing Windows codebase) with acceptable Apps > > such as Word and Excel. Developing these Apps is hardly a trivial > > task where one can say that MS just hacked together a few pieces of > > off-shelf software. Just look at the effort required in OpenOffice to > > understand the nature of the task. Other OS Vendors lost faith in the > > PC market - principal being IBM with a much superior offering of OS/2. > > MS continued developing both OS and App market, with entry barriers > > getting higher and higher for other players. Sure they were > > monopolistic, but just look at Apple or IBM in similar circumstances > > and they are no different. > > > > Software is not easy to develop, especially complex and large > > applications. For example, GNU's Hurd kernel is years in making > > without any significant results. It is just a damn tough job. Linux > > enthusiasts will rave about Vi and Emacs, GNU CC and Make as all that > > you need to develop applications. May be. But MS's contribution, > > from a purely technical and developer producity viewpoint, in Visual > > Basic is just immense. Nothing comes close in ease of developing a > > GUI app - whether free or proprietary application. I know there is a > > ongoing Gambas project to close Visual Basic, but then like most open > > source projects it is a cloning effort. > > > > If we accuse of MS of rehashing and repackaging existing technology, > > open source software is no different with their best efforts being > > admirable clones (some better, some worse) of existing proprietary OSs > > or Applications. While MS is a terrible company, a classic > > monopolist at many times, its historical role in bringing affordable > > computing to masses cannot be just wished away. > > > > Regards, > > Hasit Seth From jeebesh at sarai.net Thu Mar 17 23:13:58 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Thu, 17 Mar 2005 23:13:58 +0530 Subject: [Commons-Law] Re: The gates of intellectual property (Lawrence Liang) (Hasit Seth) (Sudhir) (Hasit) In-Reply-To: <8b60429e0503162205224b09f3@mail.gmail.com> References: <20050316110008.1485228D913@mail.sarai.net> <8b60429e0503162205224b09f3@mail.gmail.com> Message-ID: <4239C1DE.4050003@sarai.net> dear Hasit, Thanks for your sobering provocation to think afresh the `question of newness` in software. I do agree with you that the emergence of new ideas in software is fairly interlaced within many contexts and it will be futile to isolate strands in a simplified way. Need to think this simple question that you raise about open source not being able to come up with a `new` breakthrough idea of software ( it primarily working on an `imitation` model of creative participation). This leads to an interesting question - how is `newness` produced?. And, why is the `open-laboratory-peer-production` practices of software development not producing fresher imagination of software? Do correct me i am getting you wrong. Thanks for raising this questions. best jeebesh Hasit seth wrote: >Hi Sudhir and Everyone, > > This is just a subjective take on comp. sci. research in an >attempt to answer Sudhir's query. I do not believe that there is an >artificial divide between "basic" computer science research done in >Universities and "applied" stuff being done in the industry. >Mathematics that relates to computer science is done largely in >Universities, but fundamental theoretical computer science (which is >some math anyway) is done everywhere. Best of computer science >theorists Donald Knuth of Stanford is an active programmer though a >mathematician by training. But Al Aho, who crystallized compiler >research, works at Bell Laboratories and does a lot of theory. Some >esoteric stuff such as "hard" Artificial Intelligence has only >academic interest because industry sank a lot of money in it without >any good results. But fields such as searching (Google), computer >vision (Siemens and tons of other companies), speech recognition (IBM, >Microsoft, Matsushita...) have a lot their theory and applications >being done both in academic and industrial world. Historically, >terrific stuff has come out of industry "incubators" such as Bell >Labs (UNIX) and Xerox PARC (Ethernet, Mouse, GUI, Laser Printers...). > > Bigger issue than academic/industry divide is the lack of major >breakthroughs in research. I understand that many readers of this >list are interested in >Legal/Social/Ethical/Political/Emotional/Activism side of innovation >and not the technical aspects, but any discussion of these aspects of >invention without considering technology issues is bizarre. Open >source is a reaction to this lack of major innovation in computer >industry. For example, from a user's viewpoint why should I upgrade >from Windows 95 to Windows XP and pay any extra money for it when all >I get is better eye-candy on screen but nothing significant >functionally? A group of hackers can get together and clone this OS >and applications and not pay the "windows upgrade tax" to Microsoft. >That is what is Linux today. Earlier such cloning was for academic >purposes or just for hacking fun - BSD is a clone of Linux, GNU is a >UNIX clone, GNU/Linux is still a UNIX clone. Yes, it is "free" - that >is the innovation here! but technology wise? not a major breakthrough. > To say this is NOT to undermine the TREMENDOUS efforts of >BSD/GNU/Linux hackers, because in first place writing the code and >then making everything work through a community effort is just a >fantastic achievement. For those who are interested in state of system >software research, Rob Pike of Bell Labs, a respected UNIX hacker, >wrote a paper in 2000 about how system software research has become >stagnant (here: http://www.cs.bell-labs.com/who/rob/utah2000.pdf) > > Now what could be a breakthrough in software? No predictions. >But take an example: Continuous speech recognition where user speaks >normally to computer (with no special microphones, no a priori >training of speech models, etc.; this does mean an intelligent >conversation, but recognizing continuous spoken words syntactically >and semantically) is a tough problem, and any operating >system/application solving that will be a major breakthrough. >Everyone - academia, industry and open source community is trying to >solve this problem since years, and patents are least of hurdles here, >though a lot of approaches (neither of which is entirely workable) are >patented. And users will pay for such an invention, because they will >see it is a major breakthrough. If this comes through >industry-patented tech route, people will still pay for it but its >spread will perhaps be a little slower. Academic debates will >continue about why it is evil to have this patented, but people will >be more interested in getting hands on this technology rather than >debate about it. If users pay for a better toaster or television, >then why not better software? If open source community achieves this >first, the spread will be perhaps much faster. > >The point is not who does it, the point is how to do it? when will it >happen? Right now the state of research in continuous speech >recognition is like Edison trying thousands of chemical compounds to >build a storage battery with just failures in sight ahead, but a lot >of hope ahead. In many cases like these, invention is not a David vs. >Goliath fight between open source vs. patents, industry vs. academia >or industry vs. open community. There may be skirmishes on the way, >but in a bigger picture it is rather every-kind-of-effort against the >scientifically unknown and uninvented. For business to chase such >tough problems it needs money to keep payroll for programmers going. >For open source community, it needs interest of the community to be >kept going to solve such long term non-cloning type demanding >problems. > > In short, invention is not simply Archimedes getting an >"Eureka" idea and running out of his bathtub (modesty and clothing is >not at issue here!) straight to the Greek patent office and blocking >all invention related to the Eureka and hoarding billions in money by >monopolizing the use of "Eureka" through a patent. This could happen, >but usually it is lot more complex than this. > >Regards, >Hasit Seth > > > >>Message: 2 >>Date: Wed, 16 Mar 2005 11:00:41 +0100 >>From: >>Subject: Re: [Commons-Law] Re: The gates of intellectual property >> (Lawrence Liang) (Hasit Seth) >>To: Hasit seth >>Cc: commons-law at sarai.net >>Message-ID: <5cbaf66cc761ec00466ab779c2768c84 at sarai.net> >> >>Dear all >> >>Thanks Hasit for that interesting post on the early computer industry. I >>would suggest that there is one important actor left out of this story - >>the University and Research Institutes! >> >>Most accounts of computer software innovation rely on industry based >>innovation models. As you rightly point out a large part of such innovation >>is generating clones, marginally differentiated for the market. I am >>curious whether innovation in computer software breaks down into the Basic >>and Applied Science categories - where basic and fundamental innovation >>more often occurs in the University and Research Institute rather than the >>software company. >> >>Best >>Sudhir >> >>many firms are the level of innovation On March 15, 5:04 pm Hasit seth >> wrote: >> >> >>>Hi, >>> >>>Interesting article. The New Zealand patent if it tries to claim XML >>>as being proprietary then it is utterly stupid. Cannot comment more >>>without reading the text of the patent. >>> >>>I am not a big fan of Microsoft, but as a computer enthusiast I find >>>the characterization of Gates and Microsoft in early PC history is >>>terribly twisted. Microsoft's DOS OS was the prime reason for >>>personal computing being affordable today. CP/M the only major "PC" >>>OS around at the time was proprietary. IBM's PC-DOS (developed by MS) >>>was expensive (or impossible at one stage) for PC Clone makers to >>>license through IBM. Apple being the paragon of proprietary stuff had >>>no interest (and still doesn't) in licensing its OSs. MS-DOS is what >>>ran the PC-Clone market. Technical merits of MS-DOS is a different >>>topic, and GNU certainly didn't make personal computing happen. If >>>one understands the difficulty that Linux is facing today in >>>supporting thousands of different types of hardware devices from >>>multiple vendors, therein lies the historical value of MS-DOS and >>>Microsoft. Linux enthusiasts are doing an admirable job of supporting >>>drivers for a lot of hardware but still a lot needs to be done (e.g., >>>Wireless cards with proprietary firmware are a pain to setup). DOS >>>ran on every kind of PC clone, and Windows still supports the widest >>>variety of garden hardware. >>> >>>Yes, MS monopolized the Windows Application market, but this deserves >>>a closer look. But before that on DOS platform, MS just provided the >>>OS - The Wordprocessing package was Wordstar, The Spreadsheet was >>>Lotus 1-2-3 and The Database was dBase III+ - all non-MS >>>applications. All these non-MS application makers very quite slow in >>>releasing their Windows versions. Most were so wedded to the text >>>based MS-DOS that they just could not make the transition fast enough >>>(e.g, dBase III+ or Wordstar). Nobody wanted to develop applications >>>till Windows 3.1 became popular. MS filled in this space (of course >>>with head start from knowing Windows codebase) with acceptable Apps >>>such as Word and Excel. Developing these Apps is hardly a trivial >>>task where one can say that MS just hacked together a few pieces of >>>off-shelf software. Just look at the effort required in OpenOffice to >>>understand the nature of the task. Other OS Vendors lost faith in the >>>PC market - principal being IBM with a much superior offering of OS/2. >>> MS continued developing both OS and App market, with entry barriers >>>getting higher and higher for other players. Sure they were >>>monopolistic, but just look at Apple or IBM in similar circumstances >>>and they are no different. >>> >>>Software is not easy to develop, especially complex and large >>>applications. For example, GNU's Hurd kernel is years in making >>>without any significant results. It is just a damn tough job. Linux >>>enthusiasts will rave about Vi and Emacs, GNU CC and Make as all that >>>you need to develop applications. May be. But MS's contribution, >>>from a purely technical and developer producity viewpoint, in Visual >>>Basic is just immense. Nothing comes close in ease of developing a >>>GUI app - whether free or proprietary application. I know there is a >>>ongoing Gambas project to close Visual Basic, but then like most open >>>source projects it is a cloning effort. >>> >>>If we accuse of MS of rehashing and repackaging existing technology, >>>open source software is no different with their best efforts being >>>admirable clones (some better, some worse) of existing proprietary OSs >>>or Applications. While MS is a terrible company, a classic >>>monopolist at many times, its historical role in bringing affordable >>>computing to masses cannot be just wished away. >>> >>>Regards, >>>Hasit Seth >>> >>> >_______________________________________________ >commons-law mailing list >commons-law at sarai.net >https://mail.sarai.net/mailman/listinfo/commons-law > > > From jeebesh at sarai.net Fri Mar 18 00:25:41 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Fri, 18 Mar 2005 00:25:41 +0530 Subject: [Fwd: Re: [Commons-Law] Re: The gates of intellectual property (Lawrence Liang) (Hasit Seth) (Sudhir) (Hasit)] Message-ID: <4239D2AD.7010808@sarai.net> -------- Original Message -------- Subject: Re: [Commons-Law] Re: The gates of intellectual property (Lawrence Liang) (Hasit Seth) (Sudhir) (Hasit) Date: Thu, 17 Mar 2005 19:40:33 +0100 (CET) From: diana at bootlab.org To: Jeebesh Bagchi References: <20050316110008.1485228D913 at mail.sarai.net> <8b60429e0503162205224b09f3 at mail.gmail.com> <4239C1DE.4050003 at sarai.net> Dear Hasit, (and Jeebesh), Just to chime in... I'm working less with the nuts and bolts of the technology side and more on the social side. A big part of that has been working with something like an innovative social software development practice in open source contexts. Practically, this is collaborative software development, which in the best case takes up the social on the levels of defining system architectures. It also means breaking down the barriers between how we understand user/developer and the different types of relationships we have to the kinds of digital tools we use (and make). In the end, it is not only about cloning stuff, but also emulating the ways it gets done. I can't remember the specifics, but some academic research unit somewhere in europe spent tons of money developing computer tools for blind people. The blind folks didn't like them at all. Big surprise to find out nobody asked any blind people what kind of tools they'd like to see developed! It shouldn't have shocked me, because this type of R&D is everday - but I really could not understand how such a group could imagine functioning without having blind input from the very start. For me, I suppose it is more interesting to have more fluid relationships that hopefully define use scenarios and basic architectures and then see how that impacts on when the Eureka moment occurs. keeping it brief in Berlin, Diana > dear Hasit, > > Thanks for your sobering provocation to think afresh the `question of > newness` in software. I do agree with you that the emergence of new > ideas in software is fairly interlaced within many contexts and it will > be futile to isolate strands in a simplified way. > > Need to think this simple question that you raise about open source not > being able to come up with a `new` breakthrough idea of software ( it > primarily working on an `imitation` model of creative participation). > > This leads to an interesting question - how is `newness` produced?. And, > why is the `open-laboratory-peer-production` practices of software > development not producing fresher imagination of software? > > Do correct me i am getting you wrong. > > Thanks for raising this questions. > > best > jeebesh > > Hasit seth wrote: > >>Hi Sudhir and Everyone, >> >> This is just a subjective take on comp. sci. research in an >>attempt to answer Sudhir's query. I do not believe that there is an >>artificial divide between "basic" computer science research done in >>Universities and "applied" stuff being done in the industry. >>Mathematics that relates to computer science is done largely in >>Universities, but fundamental theoretical computer science (which is >>some math anyway) is done everywhere. Best of computer science >>theorists Donald Knuth of Stanford is an active programmer though a >>mathematician by training. But Al Aho, who crystallized compiler >>research, works at Bell Laboratories and does a lot of theory. Some >>esoteric stuff such as "hard" Artificial Intelligence has only >>academic interest because industry sank a lot of money in it without >>any good results. But fields such as searching (Google), computer >>vision (Siemens and tons of other companies), speech recognition (IBM, >>Microsoft, Matsushita...) have a lot their theory and applications >>being done both in academic and industrial world. Historically, >>terrific stuff has come out of industry "incubators" such as Bell >>Labs (UNIX) and Xerox PARC (Ethernet, Mouse, GUI, Laser Printers...). >> >> Bigger issue than academic/industry divide is the lack of major >>breakthroughs in research. I understand that many readers of this >>list are interested in >>Legal/Social/Ethical/Political/Emotional/Activism side of innovation >>and not the technical aspects, but any discussion of these aspects of >>invention without considering technology issues is bizarre. Open >>source is a reaction to this lack of major innovation in computer >>industry. For example, from a user's viewpoint why should I upgrade >>from Windows 95 to Windows XP and pay any extra money for it when all >>I get is better eye-candy on screen but nothing significant >>functionally? A group of hackers can get together and clone this OS >>and applications and not pay the "windows upgrade tax" to Microsoft. >>That is what is Linux today. Earlier such cloning was for academic >>purposes or just for hacking fun - BSD is a clone of Linux, GNU is a >>UNIX clone, GNU/Linux is still a UNIX clone. Yes, it is "free" - that >>is the innovation here! but technology wise? not a major breakthrough. >> To say this is NOT to undermine the TREMENDOUS efforts of >>BSD/GNU/Linux hackers, because in first place writing the code and >>then making everything work through a community effort is just a >>fantastic achievement. For those who are interested in state of system >>software research, Rob Pike of Bell Labs, a respected UNIX hacker, >>wrote a paper in 2000 about how system software research has become >>stagnant (here: http://www.cs.bell-labs.com/who/rob/utah2000.pdf) >> >> Now what could be a breakthrough in software? No predictions. >>But take an example: Continuous speech recognition where user speaks >>normally to computer (with no special microphones, no a priori >>training of speech models, etc.; this does mean an intelligent >>conversation, but recognizing continuous spoken words syntactically >>and semantically) is a tough problem, and any operating >>system/application solving that will be a major breakthrough. >>Everyone - academia, industry and open source community is trying to >>solve this problem since years, and patents are least of hurdles here, >>though a lot of approaches (neither of which is entirely workable) are >>patented. And users will pay for such an invention, because they will >>see it is a major breakthrough. If this comes through >>industry-patented tech route, people will still pay for it but its >>spread will perhaps be a little slower. Academic debates will >>continue about why it is evil to have this patented, but people will >>be more interested in getting hands on this technology rather than >>debate about it. If users pay for a better toaster or television, >>then why not better software? If open source community achieves this >>first, the spread will be perhaps much faster. >> >>The point is not who does it, the point is how to do it? when will it >>happen? Right now the state of research in continuous speech >>recognition is like Edison trying thousands of chemical compounds to >>build a storage battery with just failures in sight ahead, but a lot >>of hope ahead. In many cases like these, invention is not a David vs. >>Goliath fight between open source vs. patents, industry vs. academia >>or industry vs. open community. There may be skirmishes on the way, >>but in a bigger picture it is rather every-kind-of-effort against the >>scientifically unknown and uninvented. For business to chase such >>tough problems it needs money to keep payroll for programmers going. >>For open source community, it needs interest of the community to be >>kept going to solve such long term non-cloning type demanding >>problems. >> >> In short, invention is not simply Archimedes getting an >>"Eureka" idea and running out of his bathtub (modesty and clothing is >>not at issue here!) straight to the Greek patent office and blocking >>all invention related to the Eureka and hoarding billions in money by >>monopolizing the use of "Eureka" through a patent. This could happen, >>but usually it is lot more complex than this. >> >>Regards, >>Hasit Seth >> >> >> >>>Message: 2 >>>Date: Wed, 16 Mar 2005 11:00:41 +0100 >>>From: >>>Subject: Re: [Commons-Law] Re: The gates of intellectual property >>> (Lawrence Liang) (Hasit Seth) >>>To: Hasit seth >>>Cc: commons-law at sarai.net >>>Message-ID: <5cbaf66cc761ec00466ab779c2768c84 at sarai.net> >>> >>>Dear all >>> >>>Thanks Hasit for that interesting post on the early computer industry. I >>>would suggest that there is one important actor left out of this story - >>>the University and Research Institutes! >>> >>>Most accounts of computer software innovation rely on industry based >>>innovation models. As you rightly point out a large part of such >>> innovation >>>is generating clones, marginally differentiated for the market. I am >>>curious whether innovation in computer software breaks down into the >>> Basic >>>and Applied Science categories - where basic and fundamental innovation >>>more often occurs in the University and Research Institute rather than >>> the >>>software company. >>> >>>Best >>>Sudhir >>> >>>many firms are the level of innovation On March 15, 5:04 pm Hasit seth >>> wrote: >>> >>> >>>>Hi, >>>> >>>>Interesting article. The New Zealand patent if it tries to claim XML >>>>as being proprietary then it is utterly stupid. Cannot comment more >>>>without reading the text of the patent. >>>> >>>>I am not a big fan of Microsoft, but as a computer enthusiast I find >>>>the characterization of Gates and Microsoft in early PC history is >>>>terribly twisted. Microsoft's DOS OS was the prime reason for >>>>personal computing being affordable today. CP/M the only major "PC" >>>>OS around at the time was proprietary. IBM's PC-DOS (developed by MS) >>>>was expensive (or impossible at one stage) for PC Clone makers to >>>>license through IBM. Apple being the paragon of proprietary stuff had >>>>no interest (and still doesn't) in licensing its OSs. MS-DOS is what >>>>ran the PC-Clone market. Technical merits of MS-DOS is a different >>>>topic, and GNU certainly didn't make personal computing happen. If >>>>one understands the difficulty that Linux is facing today in >>>>supporting thousands of different types of hardware devices from >>>>multiple vendors, therein lies the historical value of MS-DOS and >>>>Microsoft. Linux enthusiasts are doing an admirable job of supporting >>>>drivers for a lot of hardware but still a lot needs to be done (e.g., >>>>Wireless cards with proprietary firmware are a pain to setup). DOS >>>>ran on every kind of PC clone, and Windows still supports the widest >>>>variety of garden hardware. >>>> >>>>Yes, MS monopolized the Windows Application market, but this deserves >>>>a closer look. But before that on DOS platform, MS just provided the >>>>OS - The Wordprocessing package was Wordstar, The Spreadsheet was >>>>Lotus 1-2-3 and The Database was dBase III+ - all non-MS >>>>applications. All these non-MS application makers very quite slow in >>>>releasing their Windows versions. Most were so wedded to the text >>>>based MS-DOS that they just could not make the transition fast enough >>>>(e.g, dBase III+ or Wordstar). Nobody wanted to develop applications >>>>till Windows 3.1 became popular. MS filled in this space (of course >>>>with head start from knowing Windows codebase) with acceptable Apps >>>>such as Word and Excel. Developing these Apps is hardly a trivial >>>>task where one can say that MS just hacked together a few pieces of >>>>off-shelf software. Just look at the effort required in OpenOffice to >>>>understand the nature of the task. Other OS Vendors lost faith in the >>>>PC market - principal being IBM with a much superior offering of OS/2. >>>> MS continued developing both OS and App market, with entry barriers >>>>getting higher and higher for other players. Sure they were >>>>monopolistic, but just look at Apple or IBM in similar circumstances >>>>and they are no different. >>>> >>>>Software is not easy to develop, especially complex and large >>>>applications. For example, GNU's Hurd kernel is years in making >>>>without any significant results. It is just a damn tough job. Linux >>>>enthusiasts will rave about Vi and Emacs, GNU CC and Make as all that >>>>you need to develop applications. May be. But MS's contribution, >>>>from a purely technical and developer producity viewpoint, in Visual >>>>Basic is just immense. Nothing comes close in ease of developing a >>>>GUI app - whether free or proprietary application. I know there is a >>>>ongoing Gambas project to close Visual Basic, but then like most open >>>>source projects it is a cloning effort. >>>> >>>>If we accuse of MS of rehashing and repackaging existing technology, >>>>open source software is no different with their best efforts being >>>>admirable clones (some better, some worse) of existing proprietary OSs >>>>or Applications. While MS is a terrible company, a classic >>>>monopolist at many times, its historical role in bringing affordable >>>>computing to masses cannot be just wished away. >>>> >>>>Regards, >>>>Hasit Seth >>>> >>>> >>_______________________________________________ >>commons-law mailing list >>commons-law at sarai.net >>https://mail.sarai.net/mailman/listinfo/commons-law >> >> >> > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > From fuller at xs4all.nl Fri Mar 18 01:41:05 2005 From: fuller at xs4all.nl (matthew fuller) Date: Thu, 17 Mar 2005 21:11:05 +0100 Subject: [Commons-Law] Re: The gates of intellectual property (Lawrence Liang) (Hasit Seth) (Sudhir) (Hasit) In-Reply-To: <4239C1DE.4050003@sarai.net> References: <20050316110008.1485228D913@mail.sarai.net> <8b60429e0503162205224b09f3@mail.gmail.com> <4239C1DE.4050003@sarai.net> Message-ID: Dear Hasit, and all the question of why there is a lack of visibility or actuality of 'new' software paradigms is a stark one, but perhaps can be broken down into a number of sub-questions, amongst which there are many opportunities and actual change, the following are a few ideas prompted by the discussion - technological change is often slow, with minute increments being made over generations - think of fishing nets for example (braudel is good on this in 'capitalism and civilization') I think we are relatively impatient, and too often believe we should be living on one end or the other of a kuhnian paradigm shift, or can't yet sense the ways in which the changes that do occur, happen - the meaning of software changes when it is moved into different contexts - i.e. SMS in GSM was originally envisaged as a package transfer and logistics tool - it changes also when old functions are given new, or focused interfaces - think of early - pre-p2p - file sharing tools such as Napster - those areas which are generating novel interfaces, for instance interactive and immersive art, are relatively marginal and only indirectly linked to notions of instrumentality or function that predominate in software - 'digital folk' (Goriunova) practices produce small mutations in the sense of what is understood as software, as does software art, which marks out potentially interesting fields of exploration, see runme.org - do permit me to pull your beard on this one Jeebesh but i do think that at the scale at which they are operating, the `open-laboratory-peer-production` and related currents *are* producing thoughtful and incrementaly significant - as well as some awkward, overblown and botched - projects that deserve real attention and support, such as, in many ways, apna/opus for instance - dominant models of computer science, such as those propagated by figures such as Knuth, (despite his evident significance in systematically documenting the CS field) attempt to erase cultural understandings of software, or lock them into reductive, non-experimental platonist ideas of beauty wrapped up in christian myth (see, 'Things a Computer Scientist Rarely Talks About') - we need to build up notions of a 'minor' mode of development of software: that produces no 'great works' (or Great Men), that draws software out of its function of normalisation, and that emerges out off the kind of collective work which people are now beginning to imagine and to crack - current hardware architectures, and their development and distribution models, tend towards a repeat of the same except faster, whilst certain software uses such as gaming and piracy, do (contra hardware determinism) make an impact on the circuitry, demanding the growth of new hardware forms, you would be hard pushed to find a computer to invent with that was not of von neumann architecture. - linked to the question of hardware is the still stark - and underexploited - differences between analogue and digital , the 'natural' and formal that explain the limited but still meaningful successes of speech-recognition or AI etc. - computationality is now embedded in culture at large, software, its culture, has seeped out from the computer, not just in artists works that explicitly work on that, but in forms of everyday life: people being able to think more easily now in terms of networks and distributive collaborative modularity for instance, variant aesthetics of computationality are thought and sensed through in various musics, these things will feed back into software proper - much of the thought about software development goes into managing more of the same more efficiently, i.e. various programing methodologies - nappies to change matthew >dear Hasit, > >Thanks for your sobering provocation to think afresh the `question >of newness` in software. I do agree with you that the emergence of >new ideas in software is fairly interlaced within many contexts and >it will be futile to isolate strands in a simplified way. > >Need to think this simple question that you raise about open source >not being able to come up with a `new` breakthrough idea of software >( it primarily working on an `imitation` model of creative >participation). > >This leads to an interesting question - how is `newness` produced?. >And, why is the `open-laboratory-peer-production` practices of >software development not producing fresher imagination of software? > >Do correct me i am getting you wrong. > >Thanks for raising this questions. > >best >jeebesh > >Hasit seth wrote: > >>Hi Sudhir and Everyone, >> >> This is just a subjective take on comp. sci. research in an >>attempt to answer Sudhir's query. I do not believe that there is an >>artificial divide between "basic" computer science research done in >>Universities and "applied" stuff being done in the industry. >>Mathematics that relates to computer science is done largely in >>Universities, but fundamental theoretical computer science (which is >>some math anyway) is done everywhere. Best of computer science >>theorists Donald Knuth of Stanford is an active programmer though a >>mathematician by training. But Al Aho, who crystallized compiler >>research, works at Bell Laboratories and does a lot of theory. Some >>esoteric stuff such as "hard" Artificial Intelligence has only >>academic interest because industry sank a lot of money in it without >>any good results. But fields such as searching (Google), computer >>vision (Siemens and tons of other companies), speech recognition (IBM, >>Microsoft, Matsushita...) have a lot their theory and applications >>being done both in academic and industrial world. Historically, >>terrific stuff has come out of industry "incubators" such as Bell >>Labs (UNIX) and Xerox PARC (Ethernet, Mouse, GUI, Laser Printers...). >> >> Bigger issue than academic/industry divide is the lack of major >>breakthroughs in research. I understand that many readers of this >>list are interested in >>Legal/Social/Ethical/Political/Emotional/Activism side of innovation >>and not the technical aspects, but any discussion of these aspects of >>invention without considering technology issues is bizarre. Open >>source is a reaction to this lack of major innovation in computer >>industry. For example, from a user's viewpoint why should I upgrade >>from Windows 95 to Windows XP and pay any extra money for it when all >>I get is better eye-candy on screen but nothing significant >>functionally? A group of hackers can get together and clone this OS >>and applications and not pay the "windows upgrade tax" to >>Microsoft. That is what is Linux today. Earlier such cloning was >>for academic >>purposes or just for hacking fun - BSD is a clone of Linux, GNU is a >>UNIX clone, GNU/Linux is still a UNIX clone. Yes, it is "free" - that >>is the innovation here! but technology wise? not a major breakthrough. >>To say this is NOT to undermine the TREMENDOUS efforts of >>BSD/GNU/Linux hackers, because in first place writing the code and >>then making everything work through a community effort is just a >>fantastic achievement. For those who are interested in state of system >>software research, Rob Pike of Bell Labs, a respected UNIX hacker, >>wrote a paper in 2000 about how system software research has become >>stagnant (here: http://www.cs.bell-labs.com/who/rob/utah2000.pdf) >> >> Now what could be a breakthrough in software? No predictions. >>But take an example: Continuous speech recognition where user >>speaks >>normally to computer (with no special microphones, no a priori >>training of speech models, etc.; this does mean an intelligent >>conversation, but recognizing continuous spoken words syntactically >>and semantically) is a tough problem, and any operating >>system/application solving that will be a major breakthrough. >>Everyone - academia, industry and open source community is trying to >>solve this problem since years, and patents are least of hurdles here, >>though a lot of approaches (neither of which is entirely workable) are >>patented. And users will pay for such an invention, because they will >>see it is a major breakthrough. If this comes through >>industry-patented tech route, people will still pay for it but its >>spread will perhaps be a little slower. Academic debates will >>continue about why it is evil to have this patented, but people will >>be more interested in getting hands on this technology rather than >>debate about it. If users pay for a better toaster or television, >>then why not better software? If open source community achieves this >>first, the spread will be perhaps much faster. >> >>The point is not who does it, the point is how to do it? when will it >>happen? Right now the state of research in continuous speech >>recognition is like Edison trying thousands of chemical compounds to >>build a storage battery with just failures in sight ahead, but a lot >>of hope ahead. In many cases like these, invention is not a David vs. >>Goliath fight between open source vs. patents, industry vs. academia >>or industry vs. open community. There may be skirmishes on the >>way, but in a bigger picture it is rather every-kind-of-effort >>against the >>scientifically unknown and uninvented. For business to chase such >>tough problems it needs money to keep payroll for programmers >>going. For open source community, it needs interest of the >>community to be >>kept going to solve such long term non-cloning type demanding >>problems. >> >> In short, invention is not simply Archimedes getting an >>"Eureka" idea and running out of his bathtub (modesty and clothing is >>not at issue here!) straight to the Greek patent office and blocking >>all invention related to the Eureka and hoarding billions in money by >>monopolizing the use of "Eureka" through a patent. This could happen, >>but usually it is lot more complex than this. >> >>Regards, >>Hasit Seth >> >> >>>Message: 2 >>>Date: Wed, 16 Mar 2005 11:00:41 +0100 >>>From: >>>Subject: Re: [Commons-Law] Re: The gates of intellectual property >>> (Lawrence Liang) (Hasit Seth) >>>To: Hasit seth >>>Cc: commons-law at sarai.net >>>Message-ID: <5cbaf66cc761ec00466ab779c2768c84 at sarai.net> >>> >>>Dear all >>> >>>Thanks Hasit for that interesting post on the early computer industry. I >>>would suggest that there is one important actor left out of this story - >>>the University and Research Institutes! >>> >>>Most accounts of computer software innovation rely on industry based >>>innovation models. As you rightly point out a large part of such innovation >>>is generating clones, marginally differentiated for the market. I am >>>curious whether innovation in computer software breaks down into the Basic >>>and Applied Science categories - where basic and fundamental innovation >>>more often occurs in the University and Research Institute rather than the >>>software company. >>> >>>Best >>>Sudhir >>> >>>many firms are the level of innovation On March 15, 5:04 pm Hasit seth >>> wrote: >>> >>> >>>>Hi, >>>> >>>>Interesting article. The New Zealand patent if it tries to claim XML >>>>as being proprietary then it is utterly stupid. Cannot comment more >>>>without reading the text of the patent. >>>> >>>>I am not a big fan of Microsoft, but as a computer enthusiast I find >>>>the characterization of Gates and Microsoft in early PC history is >>>>terribly twisted. Microsoft's DOS OS was the prime reason for >>>>personal computing being affordable today. CP/M the only major "PC" >>>>OS around at the time was proprietary. IBM's PC-DOS (developed by MS) >>>>was expensive (or impossible at one stage) for PC Clone makers to >>>>license through IBM. Apple being the paragon of proprietary stuff had >>>>no interest (and still doesn't) in licensing its OSs. MS-DOS is what >>>>ran the PC-Clone market. Technical merits of MS-DOS is a different >>>>topic, and GNU certainly didn't make personal computing happen. If >>>>one understands the difficulty that Linux is facing today in >>>>supporting thousands of different types of hardware devices from >>>>multiple vendors, therein lies the historical value of MS-DOS and >>>>Microsoft. Linux enthusiasts are doing an admirable job of supporting >>>>drivers for a lot of hardware but still a lot needs to be done (e.g., >>>>Wireless cards with proprietary firmware are a pain to setup). DOS >>>>ran on every kind of PC clone, and Windows still supports the widest >>>>variety of garden hardware. >>>> >>>>Yes, MS monopolized the Windows Application market, but this deserves >>>>a closer look. But before that on DOS platform, MS just provided the >>>>OS - The Wordprocessing package was Wordstar, The Spreadsheet was >>>>Lotus 1-2-3 and The Database was dBase III+ - all non-MS >>>>applications. All these non-MS application makers very quite slow in >>>>releasing their Windows versions. Most were so wedded to the text >>>>based MS-DOS that they just could not make the transition fast enough >>>>(e.g, dBase III+ or Wordstar). Nobody wanted to develop applications >>>>till Windows 3.1 became popular. MS filled in this space (of course >>>>with head start from knowing Windows codebase) with acceptable Apps >>>>such as Word and Excel. Developing these Apps is hardly a trivial >>>>task where one can say that MS just hacked together a few pieces of >>>>off-shelf software. Just look at the effort required in OpenOffice to >>>>understand the nature of the task. Other OS Vendors lost faith in the >>>>PC market - principal being IBM with a much superior offering of OS/2. >>>>MS continued developing both OS and App market, with entry barriers >>>>getting higher and higher for other players. Sure they were >>>>monopolistic, but just look at Apple or IBM in similar circumstances >>>>and they are no different. >>>> >>>>Software is not easy to develop, especially complex and large >>>>applications. For example, GNU's Hurd kernel is years in making >>>>without any significant results. It is just a damn tough job. Linux >>>>enthusiasts will rave about Vi and Emacs, GNU CC and Make as all that >>>>you need to develop applications. May be. But MS's contribution, >>>>from a purely technical and developer producity viewpoint, in Visual >>>>Basic is just immense. Nothing comes close in ease of developing a >>>>GUI app - whether free or proprietary application. I know there is a >>>>ongoing Gambas project to close Visual Basic, but then like most open >>>>source projects it is a cloning effort. >>>> >>>>If we accuse of MS of rehashing and repackaging existing technology, >>>>open source software is no different with their best efforts being >>>>admirable clones (some better, some worse) of existing proprietary OSs >>>>or Applications. While MS is a terrible company, a classic >>>>monopolist at many times, its historical role in bringing affordable >>>>computing to masses cannot be just wished away. >>>> >>>>Regards, >>>>Hasit Seth >>>> >>>> >>_______________________________________________ >>commons-law mailing list >>commons-law at sarai.net >>https://mail.sarai.net/mailman/listinfo/commons-law >> >> >_______________________________________________ >commons-law mailing list >commons-law at sarai.net >https://mail.sarai.net/mailman/listinfo/commons-law From supreet.sethi at gmail.com Fri Mar 18 11:00:31 2005 From: supreet.sethi at gmail.com (Supreet Sethi) Date: Fri, 18 Mar 2005 11:00:31 +0530 Subject: [Commons-Law] Re: The gates of intellectual property (Lawrence Liang) (Hasit Seth) (Sudhir) (Hasit) In-Reply-To: References: <20050316110008.1485228D913@mail.sarai.net> <8b60429e0503162205224b09f3@mail.gmail.com> <4239C1DE.4050003@sarai.net> Message-ID: Hi all On Thu, 17 Mar 2005 21:11:05 +0100, matthew fuller wrote: > Dear Hasit, and all > > the question of why there is a lack of visibility or actuality of > 'new' software paradigms is a stark one, but perhaps can be broken > down into a number of sub-questions, amongst which there are many > opportunities and actual change, the following are a few ideas > prompted by the discussion > New software paradigm could mean anything depending on which public is looking at it. Some people would think of "new way of icon arrangement" as best thing after sliced bread while some other might consider it software development of garden variety. > - technological change is often slow, with minute increments being > made over generations - think of fishing nets for example (braudel is > good on this in 'capitalism and civilization') I think we are > relatively impatient, and too often believe we should be living on > one end or the other of a kuhnian paradigm shift, or can't yet sense > the ways in which the changes that do occur, happen > - the meaning of software changes when it is moved into different > contexts - i.e. SMS in GSM was originally envisaged as a package > transfer and logistics tool I cannot agree more ... > - it changes also when old functions are given new, or focused > interfaces - think of early - pre-p2p - file sharing tools such as > Napster > - those areas which are generating novel interfaces, for instance > interactive and immersive art, are relatively marginal and only > indirectly linked to notions of instrumentality or function that > predominate in software Vertical software development, the field where such things happen requires huge resource input because, it is being developed for a particular user/organization and might not be of any use to anyone else hence never reused. > - 'digital folk' (Goriunova) practices produce small mutations in the > sense of what is understood as software, as does software art, which > marks out potentially interesting fields of exploration, see runme.org > - do permit me to pull your beard on this one Jeebesh but i do think > that at the scale at which they are operating, the > `open-laboratory-peer-production` and related currents *are* > producing thoughtful and incrementaly significant - as well as some > awkward, overblown and botched - projects that deserve real attention > and support, such as, in many ways, apna/opus for instance > - dominant models of computer science, such as those propagated by > figures such as Knuth, (despite his evident significance in > systematically documenting the CS field) attempt to erase cultural > understandings of software, or lock them into reductive, > non-experimental platonist ideas of beauty wrapped up in christian > myth (see, 'Things a Computer Scientist Rarely Talks About') And allowing us(mere mortals engaged in software practices) to have certain predictable and repeatedly predictable forms which can be reused in everyday software development, instead of using in some cases fundamentally flawed assumptions in procedures/execution > - we need to build up notions of a 'minor' mode of development of > software: that produces no 'great works' (or Great Men), that draws > software out of its function of normalisation, and that emerges out > off the kind of collective work which people are now beginning to > imagine and to crack Its called vertical software, where there is constant engagement between user who is assumed to have domain knowledge and developer who can implement that domain knowledge in form of "code". In some (ideal) case they should be the same person and computer science as a field has always been driven towards that goal though its not easy to attain. > - current hardware architectures, and their development and > distribution models, tend towards a repeat of the same except faster, > whilst certain software uses such as gaming and piracy, do (contra > hardware determinism) make an impact on the circuitry, demanding the > growth of new hardware forms, you would be hard pushed to find a > computer to invent with that was not of von neumann architecture. Those in my opinion are minor overhauls and they do'nt change the bigger picture in any major way. PC architecture has not changed in any major form since 80s. > - linked to the question of hardware is the still stark - and > underexploited - differences between analogue and digital , the > 'natural' and formal that explain the limited but still meaningful > successes of speech-recognition or AI etc. > - computationality is now embedded in culture at large, software, its > culture, has seeped out from the computer, not just in artists works > that explicitly work on that, but in forms of everyday life: people > being able to think more easily now in terms of networks and > distributive collaborative modularity for instance, variant > aesthetics of computationality are thought and sensed through in > various musics, these things will feed back into software proper > - much of the thought about software development goes into managing > more of the same more efficiently, i.e. various programing > methodologies > Managing large number of small logical units has been what software development life cycle is all about because its not easy to come up with "new" sorting or merging algorithms everyday. > - nappies to change > > matthew > > > >dear Hasit, > > > >Thanks for your sobering provocation to think afresh the `question > >of newness` in software. I do agree with you that the emergence of > >new ideas in software is fairly interlaced within many contexts and > >it will be futile to isolate strands in a simplified way. > > > >Need to think this simple question that you raise about open source > >not being able to come up with a `new` breakthrough idea of software > >( it primarily working on an `imitation` model of creative > >participation). > > > >This leads to an interesting question - how is `newness` produced?. > >And, why is the `open-laboratory-peer-production` practices of > >software development not producing fresher imagination of software? > > > >Do correct me i am getting you wrong. > > > >Thanks for raising this questions. > > > >best > >jeebesh > > > >Hasit seth wrote: > > > >>Hi Sudhir and Everyone, > >> > >> This is just a subjective take on comp. sci. research in an > >>attempt to answer Sudhir's query. I do not believe that there is an > >>artificial divide between "basic" computer science research done in > >>Universities and "applied" stuff being done in the industry. > >>Mathematics that relates to computer science is done largely in > >>Universities, but fundamental theoretical computer science (which is > >>some math anyway) is done everywhere. Best of computer science > >>theorists Donald Knuth of Stanford is an active programmer though a > >>mathematician by training. But Al Aho, who crystallized compiler > >>research, works at Bell Laboratories and does a lot of theory. Some > >>esoteric stuff such as "hard" Artificial Intelligence has only > >>academic interest because industry sank a lot of money in it without > >>any good results. But fields such as searching (Google), computer > >>vision (Siemens and tons of other companies), speech recognition (IBM, > >>Microsoft, Matsushita...) have a lot their theory and applications > >>being done both in academic and industrial world. Historically, > >>terrific stuff has come out of industry "incubators" such as Bell > >>Labs (UNIX) and Xerox PARC (Ethernet, Mouse, GUI, Laser Printers...). > >> > >> Bigger issue than academic/industry divide is the lack of major > >>breakthroughs in research. I understand that many readers of this > >>list are interested in > >>Legal/Social/Ethical/Political/Emotional/Activism side of innovation > >>and not the technical aspects, but any discussion of these aspects of > >>invention without considering technology issues is bizarre. Open > >>source is a reaction to this lack of major innovation in computer > >>industry. For example, from a user's viewpoint why should I upgrade > >>from Windows 95 to Windows XP and pay any extra money for it when all > >>I get is better eye-candy on screen but nothing significant > >>functionally? A group of hackers can get together and clone this OS > >>and applications and not pay the "windows upgrade tax" to > >>Microsoft. That is what is Linux today. Earlier such cloning was > >>for academic > >>purposes or just for hacking fun - BSD is a clone of Linux, GNU is a > >>UNIX clone, GNU/Linux is still a UNIX clone. Yes, it is "free" - that > >>is the innovation here! but technology wise? not a major breakthrough. > >>To say this is NOT to undermine the TREMENDOUS efforts of > >>BSD/GNU/Linux hackers, because in first place writing the code and > >>then making everything work through a community effort is just a > >>fantastic achievement. For those who are interested in state of system > >>software research, Rob Pike of Bell Labs, a respected UNIX hacker, > >>wrote a paper in 2000 about how system software research has become > >>stagnant (here: http://www.cs.bell-labs.com/who/rob/utah2000.pdf) > >> Sorry for nitpicking but BSD is not clone of linux, GNU is not a clone of Unix, and Linux is not Unix clone. > >> Now what could be a breakthrough in software? No predictions. > >>But take an example: Continuous speech recognition where user > >>speaks > >>normally to computer (with no special microphones, no a priori > >>training of speech models, etc.; this does mean an intelligent > >>conversation, but recognizing continuous spoken words syntactically > >>and semantically) is a tough problem, and any operating > >>system/application solving that will be a major breakthrough. > >>Everyone - academia, industry and open source community is trying to > >>solve this problem since years, and patents are least of hurdles here, > >>though a lot of approaches (neither of which is entirely workable) are > >>patented. And users will pay for such an invention, because they will > >>see it is a major breakthrough. If this comes through > >>industry-patented tech route, people will still pay for it but its > >>spread will perhaps be a little slower. Academic debates will > >>continue about why it is evil to have this patented, but people will > >>be more interested in getting hands on this technology rather than > >>debate about it. If users pay for a better toaster or television, > >>then why not better software? If open source community achieves this > >>first, the spread will be perhaps much faster. > >> > >>The point is not who does it, the point is how to do it? when will it > >>happen? Right now the state of research in continuous speech > >>recognition is like Edison trying thousands of chemical compounds to > >>build a storage battery with just failures in sight ahead, but a lot > >>of hope ahead. In many cases like these, invention is not a David vs. > >>Goliath fight between open source vs. patents, industry vs. academia > >>or industry vs. open community. There may be skirmishes on the > >>way, but in a bigger picture it is rather every-kind-of-effort > >>against the > >>scientifically unknown and uninvented. For business to chase such > >>tough problems it needs money to keep payroll for programmers > >>going. For open source community, it needs interest of the > >>community to be > >>kept going to solve such long term non-cloning type demanding > >>problems. > >> > >> In short, invention is not simply Archimedes getting an > >>"Eureka" idea and running out of his bathtub (modesty and clothing is > >>not at issue here!) straight to the Greek patent office and blocking > >>all invention related to the Eureka and hoarding billions in money by > >>monopolizing the use of "Eureka" through a patent. This could happen, > >>but usually it is lot more complex than this. > >> > >>Regards, > >>Hasit Seth > >> > >> > >>>Message: 2 > >>>Date: Wed, 16 Mar 2005 11:00:41 +0100 > >>>From: > >>>Subject: Re: [Commons-Law] Re: The gates of intellectual property > >>> (Lawrence Liang) (Hasit Seth) > >>>To: Hasit seth > >>>Cc: commons-law at sarai.net > >>>Message-ID: <5cbaf66cc761ec00466ab779c2768c84 at sarai.net> > >>> > >>>Dear all > >>> > >>>Thanks Hasit for that interesting post on the early computer industry. I > >>>would suggest that there is one important actor left out of this story - > >>>the University and Research Institutes! > >>> > >>>Most accounts of computer software innovation rely on industry based > >>>innovation models. As you rightly point out a large part of such innovation > >>>is generating clones, marginally differentiated for the market. I am > >>>curious whether innovation in computer software breaks down into the Basic > >>>and Applied Science categories - where basic and fundamental innovation > >>>more often occurs in the University and Research Institute rather than the > >>>software company. > >>> > >>>Best > >>>Sudhir > >>> > >>>many firms are the level of innovation On March 15, 5:04 pm Hasit seth > >>> wrote: > >>> > >>> > >>>>Hi, > >>>> > >>>>Interesting article. The New Zealand patent if it tries to claim XML > >>>>as being proprietary then it is utterly stupid. Cannot comment more > >>>>without reading the text of the patent. > >>>> > >>>>I am not a big fan of Microsoft, but as a computer enthusiast I find > >>>>the characterization of Gates and Microsoft in early PC history is > >>>>terribly twisted. Microsoft's DOS OS was the prime reason for > >>>>personal computing being affordable today. CP/M the only major "PC" > >>>>OS around at the time was proprietary. IBM's PC-DOS (developed by MS) > >>>>was expensive (or impossible at one stage) for PC Clone makers to > >>>>license through IBM. Apple being the paragon of proprietary stuff had > >>>>no interest (and still doesn't) in licensing its OSs. MS-DOS is what > >>>>ran the PC-Clone market. Technical merits of MS-DOS is a different > >>>>topic, and GNU certainly didn't make personal computing happen. If > >>>>one understands the difficulty that Linux is facing today in > >>>>supporting thousands of different types of hardware devices from > >>>>multiple vendors, therein lies the historical value of MS-DOS and > >>>>Microsoft. Linux enthusiasts are doing an admirable job of supporting > >>>>drivers for a lot of hardware but still a lot needs to be done (e.g., > >>>>Wireless cards with proprietary firmware are a pain to setup). DOS > >>>>ran on every kind of PC clone, and Windows still supports the widest > >>>>variety of garden hardware. > >>>> MS-DOS was created by computer manufacturer Seattle Computer Products as 86-DOS, commonly known as QDOS (Quick and Dirty Operating System). In a sequence of events that would later inspire much folklore, Microsoft licensed QDOS to IBM on behalf of SCP. Microsoft acquired the system from SCP shortly before the PC's release IBM and Microsoft both released versions of DOS. Originally, IBM only validated and packaged Microsoft developments, and thus IBM's versions tended to be released shortly after MS's. However, MS-DOS 4.0 was actually based on IBM PC-DOS 4.0, as Microsoft was by then concentrating on OS/2 development. Microsoft released its versions under the name "MS-DOS", while IBM released its versions under the name "PC DOS" > >>>>Yes, MS monopolized the Windows Application market, but this deserves > >>>>a closer look. But before that on DOS platform, MS just provided the > >>>>OS - The Wordprocessing package was Wordstar, The Spreadsheet was > >>>>Lotus 1-2-3 and The Database was dBase III+ - all non-MS > >>>>applications. All these non-MS application makers very quite slow in > >>>>releasing their Windows versions. Most were so wedded to the text > >>>>based MS-DOS that they just could not make the transition fast enough > >>>>(e.g, dBase III+ or Wordstar). Nobody wanted to develop applications > >>>>till Windows 3.1 became popular. MS filled in this space (of course > >>>>with head start from knowing Windows codebase) with acceptable Apps > >>>>such as Word and Excel. Developing these Apps is hardly a trivial > >>>>task where one can say that MS just hacked together a few pieces of > >>>>off-shelf software. Just look at the effort required in OpenOffice to > >>>>understand the nature of the task. Other OS Vendors lost faith in the > >>>>PC market - principal being IBM with a much superior offering of OS/2. > >>>>MS continued developing both OS and App market, with entry barriers > >>>>getting higher and higher for other players. Sure they were > >>>>monopolistic, but just look at Apple or IBM in similar circumstances > >>>>and they are no different. > >>>> Its complete mis-conception that MS was only OS producer and came up with application to support there Windows platform. MS-Word, lot of people do'nt know started of as DOS software to kill Word Perfect and Word Star. > >>>>Software is not easy to develop, especially complex and large > >>>>applications. For example, GNU's Hurd kernel is years in making > >>>>without any significant results. It is just a damn tough job. Linux > >>>>enthusiasts will rave about Vi and Emacs, GNU CC and Make as all that > >>>>you need to develop applications. May be. But MS's contribution, > >>>>from a purely technical and developer producity viewpoint, in Visual > >>>>Basic is just immense. Nothing comes close in ease of developing a > >>>>GUI app - whether free or proprietary application. I know there is a > >>>>ongoing Gambas project to close Visual Basic, but then like most open > >>>>source projects it is a cloning effort. > >>>> Gambas along with many other efforts are there to help developer start of in open source development. IDLE and wing IDE for python, Anjuta, glade, Kdevelop, QT designer for C/C++, Bluefish, Quanta for web application development. Visual basic might be a nice platform for 3 tier application development, however if you look at it N tier application Microsoft has not been able to come up with any development platform. I see VB's success as a mixed bag because, it took Microsoft quite a while to get out of VB frame of mind while applications have migrated from PC to web. > >>>>If we accuse of MS of rehashing and repackaging existing technology, > >>>>open source software is no different with their best efforts being > >>>>admirable clones (some better, some worse) of existing proprietary OSs > >>>>or Applications. While MS is a terrible company, a classic > >>>>monopolist at many times, its historical role in bringing affordable > >>>>computing to masses cannot be just wished away. If cost of platform was the only criterion, BBC computer, or Amiga would be the most successful platform. But it had to do with opening up of hardware architecture hence vendor down you road could help you out with support unlike amigas and BBC's > >>>> > >>>>Regards, > >>>>Hasit Seth > >>>> > >>>> regards Supreet From jeebesh at sarai.net Fri Mar 18 11:24:01 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Fri, 18 Mar 2005 11:24:01 +0530 Subject: [Commons-Law] Re: The gates of intellectual property Message-ID: <423A6CF9.4090407@sarai.net> Forward posting..to continue with this thread. -------- Original Message -------- Subject: Hi... Date: Thu, 17 Mar 2005 23:07:34 -0500 From: Hasit seth Reply-To: Hasit seth To: jeebesh at sarai.net, sudhir at circuit.sarai.net Dear Jeebesh and Sudhit, I avoided hogging bandwidth on the commons-law mailing list and hence am writing to you both directly. If you gentleman feel anything in this mail is worth sharing feel free to edit it and post it to the mailing list. These are just beta-version thoughts. I agree with your analysis of my little piece about innovation in software. Though absolute ideals are lovely (since they are so few of them around), invention is not going to be maximized or accelerated just by aspiring for an ideal of free software. The rationale I wanted to point to (without explicitly mentioning) was that invention is a broad human activity enough to accomodate all kinds of efforts - for profit, non-profit, ethusiast inspired or government sponsored and so on. The aim of a government or a policy regulator should be to have a set of policies that maximize invention by promoting all kinds of efforts like those listed above. If patents are required to protect or ensure returns on capital invested in software development then they should be allowed. But even businesses are not too enthusiastic (compared to patenting in other tech areas) about software patenting because terminology describing software is nebulous and ever-evolving unlike say machines or chemical terminology. This has led to a lot of "weak patents" with little commerical value. Another reason for lack of patent enthusiasm is the "black-box" nature of closed source software, because binary software is so hard to reverse engineer and hence less danger to competitors stealing internal algorithms. Patents sound terrible to most open-source enthusiasts because they obstruct their freedom to write a piece of code. I understand their concerns very well. But patents have a long history of promoting invention in non-software fields such as chemical, electronics, mechanical and so on. Patents force disclosure of trade-secrets and are an organized respository of invention descriptions. Pharmaceutical patents is a different story because of moral concerns and the steep curve of finding a new cure. If we forget the temporary frenzy of "internet and e-patents" of the boom years of dot.com era, patents haven't been much of a hindrance to software development. Designing around a software patent can be hard and at times impossible, but then it just means multiple approaches to solve the same problem will be possible. But yes, patents do dent the absolute freedom to write any sort of code I want to write. As I wrote earlier, only freedom to write code will not lead to interesting invention. It could very well mean (time will tell) that only cloning efforts will flourish with incremental invention. We must recognize that every inventor's or innovator's (person or corporate) motivation to invent can be different. Motivation could be altrustic, moral, "gift economy" as some open source advocates call it, a regular paycheck, fire to beat scientific odds, or somebody like Edison who just had an insatiable appetite to invent, or whatever. To force all inventors to invent for some "community" purposes is just hasn't and will not work in the long run. My personal opinion is that only two invention motivators have survived over time for invention - our primal instinct of curiosity and our primal need for security, which today are loosely speaking hobbyist like enthusiasm of an open source programmer and a salary of a Microsoft programmer. They magic key is to keep both these invention motivators co-exist and flourish at the same time. Best regards, Hasit Seth Message: 1 Date: Thu, 17 Mar 2005 23:13:58 +0530 From: Jeebesh Bagchi Subject: Re: [Commons-Law] Re: The gates of intellectual property (Lawrence Liang) (Hasit Seth) (Sudhir) (Hasit) To: commons-law at sarai.net Message-ID: <4239C1DE.4050003 at sarai.net> Content-Type: text/plain; charset="ISO-8859-1"; format=flowed dear Hasit, Thanks for your sobering provocation to think afresh the `question of newness` in software. I do agree with you that the emergence of new ideas in software is fairly interlaced within many contexts and it will be futile to isolate strands in a simplified way. Need to think this simple question that you raise about open source not being able to come up with a `new` breakthrough idea of software ( it primarily working on an `imitation` model of creative participation). This leads to an interesting question - how is `newness` produced?. And, why is the `open-laboratory-peer-production` practices of software development not producing fresher imagination of software? Do correct me i am getting you wrong. Thanks for raising this questions. best jeebesh From prashant at nalsartech.org Fri Mar 18 16:00:25 2005 From: prashant at nalsartech.org (Prashant Iyengar) Date: Fri, 18 Mar 2005 16:00:25 +0530 Subject: [Commons-Law] Patents Bill introduced in Lok Sabha In-Reply-To: <4239C1DE.4050003@sarai.net> References: <20050316110008.1485228D913@mail.sarai.net> <8b60429e0503162205224b09f3@mail.gmail.com> <4239C1DE.4050003@sarai.net> Message-ID: <200503181600.25512.prashant@nalsartech.org> http://www.hindustantimes.com/news/181_1284715,0002.htm Government on Friday introduced in Lok Sabha the controversial Patents Bill amidst vehement opposition from Left parties, outsider supporters of the UPA Government, and the NDA. The bill, piloted by Commerce and Industry Minister Kamal Nath, seeks to replace an ordinance issued on December 26 to meet WTO obligations of allowing product patents in pharmaceuticals, agri products and embedded software. The bill was introduced by a voice vote amid noisy protests from opposition benches and Left party members who contended that the House has no legislative competence to pass this bill, which threatened fundamental right to life of people From jaynakothari at justice.com Fri Mar 18 16:10:33 2005 From: jaynakothari at justice.com (Jayna Kothari) Date: Fri, 18 Mar 2005 02:40:33 -0800 (PST) Subject: [Commons-Law] patent for kalamkari products Message-ID: <20050318104034.16580.fh035.wm@smtp.sc0.cp.net> http://www.thehindubusinessline.com/2005/03/18/stories/2005031802871700.htm AP Govt moves to get patent for Kalamkari products Our Bureau Hyderabad , March 17 FOLLOWING its success in obtaining protection under Geographical Indication (GI) for Pochampalli `Ikkat' design in 2004, the State Government is now planning to secure patent rights for other Kalamkari products being produced in the State. Replying to a question raised by Mr S. Udayabhanu during question hour in the Legislative Assembly on Thursday, the Minister for Rural Development, Mr D. Srinivas, said that the State Government was planning to obtain GI protection rights for Gadwal silk and cotton saris, Uppada and Jamdhani fabrics, Dharmavaram, Naryanapet and Pedana saris and also for Kondapalli bamboo toys. _________________________________________________ FindLaw - Free Case Law, Jobs, Library, Community http://www.FindLaw.com Get your FREE @JUSTICE.COM email! http://mail.Justice.com From supreet.sethi at gmail.com Fri Mar 18 16:36:12 2005 From: supreet.sethi at gmail.com (Supreet Sethi) Date: Fri, 18 Mar 2005 16:36:12 +0530 Subject: [Commons-Law] Patents Bill introduced in Lok Sabha In-Reply-To: <200503181600.25512.prashant@nalsartech.org> References: <20050316110008.1485228D913@mail.sarai.net> <8b60429e0503162205224b09f3@mail.gmail.com> <4239C1DE.4050003@sarai.net> <200503181600.25512.prashant@nalsartech.org> Message-ID: Hi, On Fri, 18 Mar 2005 16:00:25 +0530, Prashant Iyengar wrote: > http://www.hindustantimes.com/news/181_1284715,0002.htm > > Government on Friday introduced in Lok Sabha the controversial Patents Bill > amidst vehement opposition from Left parties, outsider supporters of the UPA > Government, and the NDA. > > The bill, piloted by Commerce and Industry Minister Kamal Nath, seeks to > replace an ordinance issued on December 26 to meet WTO obligations of > allowing product patents in pharmaceuticals, agri products and embedded > software. > Have one query here, what does embedded software mean. > The bill was introduced by a voice vote amid noisy protests from opposition > benches and Left party members who contended that the House has no > legislative competence to pass this bill, which threatened fundamental right > to life of people > regards Supreet From fuller at xs4all.nl Fri Mar 18 17:08:52 2005 From: fuller at xs4all.nl (matthew fuller) Date: Fri, 18 Mar 2005 12:38:52 +0100 Subject: [Commons-Law] Patents Bill introduced in Lok Sabha In-Reply-To: References: <20050316110008.1485228D913@mail.sarai.net> <8b60429e0503162205224b09f3@mail.gmail.com> <4239C1DE.4050003@sarai.net> <200503181600.25512.prashant@nalsartech.org> Message-ID: > > > > >Have one query here, what does embedded software mean. embedded software is software built into hardware, such as the operating system of a phone, or the instructions for a control device. It is a significantly growing area, and one which Linux is significant. best, matthew From hbs.law at gmail.com Fri Mar 18 21:02:37 2005 From: hbs.law at gmail.com (Hasit seth) Date: Fri, 18 Mar 2005 10:32:37 -0500 Subject: [Commons-Law] Re: Re: The gates of intellectual property (Lawrence Liang)....(Supreet) (Hasit - EOF) In-Reply-To: <20050318102052.C244328D900@mail.sarai.net> References: <20050318102052.C244328D900@mail.sarai.net> Message-ID: <8b60429e0503180732699efdc4@mail.gmail.com> Supreet, I have nothing more to say in this regard. Just a few comments and annotations to your technical points. > Sorry for nitpicking but BSD is not clone of linux, GNU is not a clone > of Unix, and Linux is not Unix clone. Thanks for pointing out the typo, I should have said "BSD is a clone of UNIX". Other things are allright. All the *NIX family members have similar command/utilities (even the command names), shells, IPC (pipes, etc). Innovation has been in the area of file systems, schedulers, memory management, networking, clustering, etc. But is pretty unfair to retrospectively compare later developed *NIX (which is "derivativee" of UNIX in more ways than one) with the original UNIX (till the versions when development was alive). By clone I did not mean a replica, but I do maintain that it is pretty much the same stuff. The basic thing is that AT&T licensed UNIX source code to more than a few academic places and also to industry. A lot of people got to look at UNIX and its source code, studied it, used it, liked it and got used to it. Then academics and their students wrote their own versions of it - from a learning-toy version like MINIX to BSD to Linux. Commerical vendors like Coherent did their own thing; and so also the licensed onces - e.g., XENIX from Microsoft ;-) A huge flame war between Andrew Tannebaum (of MINIX fame) with Linus Torvalds (linux creator) is well documented, with even the original creator of UNIX - Ken Thompson - chiming in for a minor point. It is nicely laid out in original email format here: http://www.oreilly.com/catalog/opensources/book/appa.html . I personally think it was an apple vs. oranges debate comapring Minix (a learning toy) with Linux, but when such giants argue what are apple and oranges - everything is fair flame game! I just have one sad lament, with all the Linux/Linus and GNU/Stallman praise/worship going around, the original geniuses (Ken Thompson - http://www.bell-labs.com/history/unix/thompsonbio.html, Dennis Ritchie - http://www.cs.bell-labs.com/who/dmr/, Brian Kernninghan, McIllroy, Presotto, Pike... and the whole CS group in those times) at AT&T Bell Labs who originally created UNIX / C, great documentation/books, all the wonderful utilities - above all the VERY CORE CONCEPTS underlying UNIX - get very little credit in comparision. To me those are the heroes, rest may have re-done it better or "freed" it notwithstanding. A brief history of Bell Lab's innovation mostly UNIX related stuff is here: http://www.bell-labs.com/history/unix/blcontributions.html . > > MS-DOS was created by computer manufacturer Seattle Computer Products > as 86-DOS, commonly known as QDOS (Quick and Dirty Operating System). > In a sequence of events that would later inspire much folklore, > Microsoft licensed QDOS to IBM on behalf of SCP. Microsoft acquired > the system from SCP shortly before the PC's release > > IBM and Microsoft both released versions of DOS. Originally, IBM only > validated and packaged Microsoft developments, and thus IBM's versions > tended to be released shortly after MS's. However, MS-DOS 4.0 was > actually based on IBM PC-DOS 4.0, as Microsoft was by then > concentrating on OS/2 development. Microsoft released its versions > under the name "MS-DOS", while IBM released its versions under the > name "PC DOS" > I see that your source is http://en.wikipedia.org/wiki/MS-DOS . A more accurate source is Tim Patterson who wrote the QDOS http://www.patersontech.com/Dos/Byte/History.html and http://www.patersontech.com/Dos/Articles.aspx ). I updated the Wikipedia page with this link :-) Updation, One of the great facilities at Wikipedia. The history of Tim Patterson's SCP, QDOS and Microsoft is more synergistic than we may think. The name of QDOS says it all about how finished a product it was, but we should give full credit to Patterson for orginating it. Microsoft was orginally a BASIC developer, they even sent IBM to CP/M author to look for a OS before they took over QDOS. Tim documents it all very well how QDOS was taken over by MS (they paid for it) and then further developed it. > > Its complete mis-conception that MS was only OS producer and came up > with application to support there Windows platform. > > MS-Word, lot of people do'nt know started of as DOS software to kill > Word Perfect and Word Star. > Doesn't change much of what I said. And I do not see why an OS maker should limit itself to OS only and not develop Apps? Wikipedia says (not my edits) "Like many other producers of successful DOS applications, WordStar delayed far too long before deciding to make a version for the commercially groundbreaking Windows 3.0." http://en.wikipedia.org/wiki/Wordstar > Gambas along with many other efforts are there to help developer > start of in open source development. IDLE and wing IDE for python, > Anjuta, glade, Kdevelop, QT designer for C/C++, Bluefish, Quanta for > web application development. > > Visual basic might be a nice platform for 3 tier application > development, however if you look at it N tier application Microsoft > has not been able to come up with any development platform. I see VB's > success as a mixed bag because, it took Microsoft quite a while to get > out of VB frame of mind while applications have migrated from PC to > web. I totally agree with all that you say above. Most these IDEs are based on IDE concepts developed in Borland's Turbo series and Microsoft's Visual studio and many earlier academic projects like Oberon, etc. > If cost of platform was the only criterion, BBC computer, or Amiga > would be the most successful platform. But it had to do with opening > up of hardware architecture hence vendor down you road could help you > out with support unlike amigas and BBC's > I agree with you that opening of architecture (publication of IBM PC Technical Reference Manual and add-on card architecture) was the principal reason for PC to develop so much over other "personal computers/home computers" of those early (and wonderful) days of PC computing. I do not know how BBC micro or Amiga was cheaper than PC-Clones. I did use BBC micro in the 80s and also Sinclair ZX Spectrum+ which was similar to BBC in the "home computer" category. ZX used to cost around Rs. 5,000-7,000 but without a monitor (just like BBC/Amiga with a TV hookup) and came without no disk storage. Siva PC/XT then was around Rs.35,000-40,000 and came with a much powerful processor, floppy drives, hard disk and monitor - all of these were optional with BBC/ZX in those days. It was applications and tiny processing power of BBC/Spectrum that didn't allow these platforms to flourish as compared to PC, cost being only a minor factor. Amiga did cool stuff with their later machines and OS but that was niche stuff. Regards, Hasit Seth From aidslaw at lawyerscollective.org Sat Mar 19 07:36:30 2005 From: aidslaw at lawyerscollective.org (aidslaw) Date: Sat, 19 Mar 2005 07:36:30 +0530 Subject: [Commons-Law] Concerns Regarding Patents Bill 2005 introduced in the Loksabha Message-ID: <004701c52c28$4488b0d0$0e00a8c0@user2> PRESS RELEASE The Affordable Medicines and Treatment Campaign (AMTC) C/o Lawyers Collective HIV/AIDS Unit Address: 7/10 Botawalla Building, 2nd floor, Horniman Circle, Fort, Mumbai - 400 023 Phone no: 022-22630889 Email: aidslaw at lawyerscollective.org; amtc_India at yahoo.co.in Contact person: K M Gopakumar - 9819140881 For Release: 18 March 2005 Concerns Regarding Patents Bill 2005 introduced in the Loksabha 18 March 2005 On 18 March 2005 the government of India introduced the Patents Bill, 2005 in the Lok Sabha based on the highly controversial Patents Ordinance, 2004. Despite there being public debate and opposition to the provisions of the Patents Ordinance 2004, the government did not feel it necessary to take into consideration the concerns of health experts and the people. The government's insensitivity was particularly manifested in the fact that not a single line of the Ordinance has been changed in the Patents Bill. Many groups including the Affordable Medicines and Treatment Campaign (AMTC) have raised objections against the contents of the Patents Ordinance and the manner in which it was promulgated. All the provisions in the Ordinance that are beyond TRIPS have been retained in the Bill and flexibilities under TRIPS to safeguard health have been ignored. We have no doubt whatsoever that if enacted in its present form, the provisions of the Patents Bill will seriously jeopardize public health. AMTC strongly demands the inclusion of the following provisions in the Patents Bill to safeguard public health: 1. A clear definition of 'Patentable Criteria' 2. No patents for new usage and dosage of known drugs 3. Retain pre-grant opposition in its original form 4. Simple procedures with a time limit for grant of Compulsory Licences 5. Introduction of ceiling on royalty to pharmaceutical companies The AMTC demands the removal of 'TRIPS PLUS' provisions and that the Bill be referred to a Parliamentary Select Committee. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050319/5dca47b6/attachment.html From lawrence at altlawforum.org Sat Mar 19 01:41:34 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Sat, 19 Mar 2005 01:41:34 +0530 Subject: [Commons-Law] Software Patents in the latest amendment Message-ID: Hi all We were recently asked by red hat India to prepare a small note on the proposed patent amendment act and the impact of software patents for the IT sector in india. We prepared a note that is being circulated in Nasscom members and other interested parties. Do feel free to add, modify so that we can improve on it Lawrence ============= BRIEFING NOTE ON THE IMPACT OF SOFTWARE PATENTS ON THE SOFTWARE INDUSTRY IN INDIA PREPARED BY LAWRENCE LIANG ANURANJAN SETHI PRASHANTH IYENGAR Background While there has been a lot of discussion on the impact that the latest amendment to the Indian Patent Act will have on public health and the pharmaceutical sector in India, there has been a disturbing silence about the impact that the amendment has on the software industry. After the patents (second amendment) in 2002, the scope of non patentable subject matter in the Act was amended to include the following: ³a mathematical method or a business method or a computer programme per se or algorithms². The important phrase that was added was Œper se¹, and with the amendment we effectively included Software patents into Indian Law. The latest amendment seeks to expand the scope of software patents, and states ³a computer programme per se other than its technical application to industry or a combination with hardware; a mathematical method or a business method or algorithms². This briefing note will not address the technical and legal implication of this amendment but instead pose the larger question of why we should be concerned about software patents, and the impact that it will have on the software industry in India. I. Conceptual difference between Copyright and Patent The first thing to note is that software is already protected under Copyright law, so what then is the motivation and the implication of a move from copyright protection to patent protection? Software has traditionally been protected under copyright law since code fits quite easily into the description of a literary work. Software Patenting has recently emerged (if only in the US, Japan and Europe) as an alternative that software companies are increasingly employing to, in order to protect their products. The issues involved in conferring patent rights to software are, however, a lot more complex than taking out copyrights on them. Specifically, there are two challenges that one encounters when dealing with software patents. The first is about the instrument of patent itself and whether the manner of protection it confers is suited to the software industry. The second is the nature of software, and whether it should be subject to patenting. a) Different Subject Matters Copyright protection extends to all original literary works (among them, computer programs), dramatic, musical and artistic works, including films. Under copyright, protection is given only to the particular expression of an idea that was adopted and not the idea itself. (For instance, a program to add numbers written in two different computer languages would count as two different expressions of one idea) Effectively, independent rendering of a copyrighted work by a third party would not infringe the copyright. Generally patents are conferred on any Œnew¹ and Œuseful¹ art, process, method or manner of manufacture, machines, appliances or other articles or substances produced by manufacture. Worldwide, the attitude towards patentability of software has been skeptical. The Indian Patent Act, as modified in 2002 had made non-patentable the following: ³Ša mathematical method or a business method or a computer programme per se or algorithms². However, the recent amendment ordnance states instead: ³Ša computer programme per se other than its technical application to industry or a combination with hardware; a mathematical method or a business method or algorithms.² b) Who may claim the right to a patent/copyright? Generally, the author of a literary, artistic, musical or dramatic work automatically becomes the owner of its copyright. Software developers are perfectly protected without patents. Everyone who writes a computer program automatically owns the copyright in it. It's copyright law that made Microsoft, Oracle, SAP and the entire software industry so very big. It's the same legal concept that also protects books, music, movies, paintings, even architecture. Many of the world's richest people owe their wealth to copyright law. Some examples are: Bill Gates, Paul Allen and Steve Ballmer (Microsoft); Larry Ellison (Oracle); Hasso Plattner and the other founders of SAP; Paul McCartney (Beatles); JK Rowling (Harry Potter). The patent, on the other hand is granted to the first to apply for it, regardless of who the first to invent it was. Patents cost a lot of money. They cost even more paying the lawyers to write the application than they cost to actually apply. It takes typically some years for the application to get considered, even though patent offices do an extremely sloppy job of considering. c) Rights conferred Copyright law gives the owner the exclusive right to reproduce the material, issue copies, perform, adapt and translate the work. However, these rights are tempered by the rights of fair use which are available to the public. Under ³fair use², certain uses of copyright material would not be infringing, such as use for academic purposes, news reporting etc. Further, independent recreation of a copyrighted work would not constitute infringement. Thus if the same piece of code were independently developed by two different companies, neither would have a claim against the other. A patent confers on the owner an absoulte monopoly which is the the right to prevent others from marking, using, offering for sale without his/her consent. In general, patent protection is a far stronger method of protection than copyright because the protection extends to the level of the idea embodied by a software and injuncts ancillary uses of an invention as well. It would weaken copyright in software that is the base of all European software development, because independent creations protected by copyright would be attackable by patents Many patent applications cover very small and specific algorithms or techniques that are used in a wide variety of programs. Frequently the "inventions" mentioned in a patent application have been independently formulated and are already in use by other programmers when the application is filed. d) Duration of protection The TRIPS agreement mandates a period of at least 20 years for a product patent and 15 years in the case of a process patent. For Copyright, the agreement prescribes a minimum period of the lifetime of the author plus seventy years. II. Nature of Software and Indian Software Industry Software is complex: The complexity of computer programs makes it difficult to be understood by any one person. This capacity for complexity allows for the creation of highly sophisticated products but also means that they are dependent on a vast range of technologies. Software is free from the constraints of the real world that ensure a product does not become too complex. Major software may comprise up to 10 million lines of code - potentially thousands of inventions, any of which might be patented For example, Apple was sued because its HyperCard program allegedly violates patent number 4,736,308, which covers a specific technique that, in simplified terms, entails scrolling through a database displaying selected parts of each line of text. Separately, the scrolling and display functions are ubiquitous fixtures of computer programming, but combining them without a license from the holder of patent 4,736,308 is now apparently illegal. In its complexity, software is different from other engineering and mechanical inventions for which patent protection was devised. The latter are often characterized by large "building block" inventions that can revolutionize a given mechanical process. Software, especially a complex program, seldom includes substantial leaps in technology, but rather consists of adept combinations of many ideas. Whether a software program is a good one does not generally depend as much on the newness of a specific technique, but instead depends on the unique combination of known algorithms and methods. Patents should not protect such methods of innovation. Software Technology evolves rapidly: Software technology is evolving much faster than other industries, even with its own hardware industry. Against this light, a patent that lasts upto 17 years is extremely alarming. Microprocessors double in speed every 2 years. Research in software is galloping ahead of developments. In most industries, researching new ideas often costs more money than bringing them to the market. The software industry is, on the other hand, loaded with ideas. The idea behind most software patents can be coded in just 20 lines of code, but any program incorporating that idea - along with many others - will be a thousand times larger. It is the writing of a program that takes all the time, not coming up with ideas. What this means is that on an average of every two years, a product will have to be replaced in the market. The idea underlying it will remain the same although the particular means and variants of its applications may have changed radically. Coming out with a full-featured product, every two years is costly especially in relation to the inexpensive idea that backs it. There¹s more novelty in the development and application of the same idea to new technology than with coming up with the original raw idea. The objective of granting patent rights should be to foster the growth and evolution of the industry. Granting a patent at this stage would be akin to unreasonably prolonging the life of a product. It is generally found that those who are investing time creating and lodging patents are vastly outpacing those who are investing effort bringing such ideas to market. By the time an immature technology develops to the point where it can be incorporated into products, it has a dozen or more patents on it that render it commercially intractable. Software doesn't wear out: In other industries, research continues up to a point where further research costs too much to be feasible. At this stage, the industry's output merely consists of replacing parts that have worn out. However, in the software sector, a computer program that is fully debugged will perform its function forever without requiring maintenance or modification. ³What this means is that unlike socks that wear out, and breakfast cereal that is eaten, a particular software product can be sold to a particular customer at most once. If it is to be sold to that customer again, it must be enhanced with new features and functionality.² This inevitably means that even if the industry were to approach maturity, any software company that does not produce new and innovative products will simply run out of customers! Thus, the industry will remain innovative whether or not software patents exist. Software has different economics: Most other major industries have medium to high research and development costs and very high production costs. Most often, the production costs dwarf the other two areas (because of the physicality that they involve) so that these costs can be added on to the cost of the final product without any relatively major difference in the price. Software is unique in this aspect because -The research costs very little because ³ideas are as abundant as air² -The development of an idea into a marketable product costs far more than the research. -The production costs are minimal, often just a little more than the price of the medium, which is typically a floppy or a CDROM. Patents affect the Œdevelopment¹ stage of the process of Œmanufacture¹ of software. Thus the threat exists that the price of software could be singularly determined by the number of patented innovations that it incorporates. III. Patent and Innovation in Software Industry As argued before the process of software development by its very nature is Œincremental¹ i.e. developing of new software majorly consists of building upon existing ideas and rearranging the processes devised by others, and hence has an inbuilt need for using existing algorithms and mathematical formulae. Patent protection over software or over a set of algorithms within patented software would inevitably create a thicket of patents which the subsequent software developer might need to obtain clearance from before he can begin to work on it. The costs involved in obtaining these clearances and those involved in case one finds oneself having infringed a patent are usually very high, as in the case of biomedical patents. This would act as a disincentive for an aspiring software developer and would adversely affect the growth of the Indian software industry. Introduction of two bills- ŒGenomic Research and Diagnostic Accessibility Bill, 2002¹ and ŒGenomic Science and Technology Innovation Act of 2002¹ though still pending before the US Congress show the real concerns involved for a Œpatent and innovation policy¹ within genomics. Similar concerns are exist in the software and innovation policy and need to be addressed adequately by the each national legislature. Further there are substantial costs involved in verifying which patents one must obtain clearance for as skimming through the huge patent databases has become a very costly exercise. Unfortunately, conducting a patent search is a slow, deliberative process that, when harnessed to software development, could stop innovation in its tracks. And because patent applications are confidential, there is simply no way for computer programmers to ensure that what they write will not violate some patent that is yet to be issued making survival a very important issue for smaller player in the market. Various large companies in US have obtained exemptions from going through patent searches for standard work due to huge costs. In such a scenario in a small player software industry like India, it would be unwise to allow Œsoftware patents¹ as they may have negative impact upon the innovation within the industry. By its nature software industry is Œinnovation driven¹ i.e. the only way a software company can compete and improve its sales or grip over market is by making better and more useful features available. This innovation which is the driving force behind the Indian software industry is bound to get affected if a patent protection is provided to software patents. If a company can easily sustain itself on its Œinvention¹ (by obtaining patents upon its software) and need not remain innovation driven, which would mean that a patent monopoly would inversely impact innovation and competition in software industry. It would further give rise to monopolistic tendencies and a practice of quoting arbitrary price for the grant of Œvoluntary license¹. This lesson can be learnt by looking west where the idea of Public Key Encryption was patented in the US. The patent expired in 1997 and until then, it largely blocked the use of Public Key Encryption in the US. Similar instances can be found w.r.t. Œdata compression software¹ and Œsingle click software¹ patented by Amazon.com. A number of programs that people started to develop got crushed. They were never really available because the patent holders threatened them. This led to a lot of unrest in the software community which culminated into the public outrage against software patents. Similar pressures have prevailed in European community where software patents found public opposition too immense to mount for a long time. A look at India's own development of its software industry would be of immense help as India started its software industry only after IBM was driven out of country. Before that, there was no software industry worth the name, with software and hardware being imported from IBM. Once IBM left, Indian computer companies developed computers using the UNIX operating system, which was in the public domain. This led to the presence of a large number of skilled software professionals with experience of UNIX were also writing high-level applications for making the entire computer system work. IV. Political economy of Software Patents While understanding the issue of software patents, it¹s important to look at its political economy and the implications involved for India. If one were to study the trends of software patenting in US and Europe one would witness that the IBM owns a majority of patents along with other giant software companies and has been topping the list of maximum patents granted in US in the private sector. This fact must be seen in the light of the opposition faced from small business organisations, leading scientists and economists in Europe and the unprecedented delay in passing the Software Patent Directive of 2002 by the European parliament. It should be noted that the directive does not aim to make it possible to patent pure computer programs: it would only apply to computer software integrated into an appliance. This makes it much more restrictive than the amended Indian Patent Act, which opens out any technical application of a programme to industry or its realisation in hardware for patenting. Even with this restriction, the critics of the EU directive have pointed out that a patent on software is in effect a patent on an idea, while traditionally patents have been restricted to concrete physical inventions only. By making this amendment, it is possible to implement algorithms in hardware and then claim patent protection for this. Once an idea can be patented if it is burnt in to hardware, the argument for extending it to a software implementation gains ground. In fact, the first breach in the US for making software patentable came through this route. If one were to study the trends in the scope of patentable subject matter granted in software patents by US courts, one would observe that from Diamond v. Diehr onwards court has been granting patents on much more abstract components, which has slowly transformed into patenting the central idea underlying the software. This trend indicates the easy malleability of legal terminology which has brought US courts¹ stand on software patents to a full circle from Gottschalk v. Benson where the court found a patent upon software as a patent upon the underlying algorithms which is nothing more than a mathematical formula, unpatentable by its very definition. The concerns regarding the weaker relative position of these small players is much more relevant in India. Among the primary reasons for large corporations like IBM lobbying for software patents is due to their stronger hold over the software market and ownership of the largest number of patents in this market. Large corporations use their patents, apart from making royalty upon them, to getting access benefit to the patents of other companies. This would close the option of cross-licensing for a majority of Indian companies which have no patents upon software. License though may be obtained are usually available at exorbitantly high prices which would most likely be unaffordable for Indian companies which operate on a small scale and have restricted budget options. The multinational corporations would use software patents as a defensive strategy for preventing smaller Indian companies from gaining any grounds in the market, which would eventually drive them out of business hence destroying the existing Indian software industry. Software industry has a very characteristic nature which makes it extremely vulnerable to being easily monopolized. Among these characteristics are Network effects (the fact that a program becomes more useful if more people use it), interoperability and compatibility problems, the low cost of massive reproduction of software, the difficulty of inspecting software distributed without the source code, the learning curve and the rapid evolution of the market. Taking the instance of Microsoft Windows (the most popular operating system in use in India today) which enjoys a perpetual monopoly over the operating system market in India, many a larger institutions find Windows extremely costly and desperately needed an alternative to it in order to do business profitably. The recent success of Linux operating systems is demonstrative of this, but this must be understood in the light that India follows a copyright regime for software which allows many of the above mentioned characteristics of compatibility and interoperability to be resolved which would be totally impossible in a software patent regime. This then means that software patents have a potential to hamper the growth of open software movement in India which has begun to play central role in Indian Government¹s Œe-governance¹ initiative. Hence it¹s extremely urgent to ensure that patents in software do not cause any harm to the fine balance that copyright has achieved. While understanding a political economy argument of software patents the adverse impact of monopolization upon public interest which has been held to be of utmost importance by the apex court in India, even above one¹s legitimate commercial interests. V. Procedural Issues There are a certain procedural issues involved which are of determinative nature as to the allowance of a software patent regime in India. India doesn¹t have a well laid out or even a well practiced software patent practice to guide Indian patent office. In the absence of any such policy, examining software patent application becomes a very daunting task, coupled with which the complicated and highly technical nature of software, Indian patent office is quite incapable to evaluate complicated and technically trivial claims which software patent often present. Imposing a software patent regime in such a scenario would impact the quality of such patents which might then prove counter-productive in the development of Indian software industry. To be able to tackle this situation more personnel and experts would have to be employed in the patent office that can then ensure maintenance of a certain quality standards while granting software patents. But this in turn may not produce increased innovation in the software industry for the human capital which would be invested into processing the claims and preventing and tackling with the patent infringements rather than being invested in developing new software and hence benefit the software industry and economy of the country in general. The difficulty in reaching a policy to grant software patents and the impacts of granting these patents in the absence of policy are indeed far reaching. In the absence of a policy which classifies patents on algorithms, techniques etc. it would take an awfully long time for the patent office to process a claim, searching the Œprior art¹ which makes the system inefficient and unworkable. Long delays in processing patent applications and subsequent challenge procedure often makes filing for a patent an unwise option for small companies and individual software developer, which form the backbone of Indian software industry. For instance, IBM was granted a patent on the same data-compression algorithm that Unisys supposedly owned. Such an error which could prove lethal for a developing company which has planned its budget meticulously and in consequence of this error would be greatly disincentivized to develop new software. The Patent Office was probably not aware of granting two patents for the same algorithm because the descriptions in the patents themselves are quite different even though the formulas are mathematically equivalent. Even when patents are known in advance, software publishers have generally not licensed the algorithms or techniques; instead, they try to rewrite their programs to avoid using the particular procedure that the patent describes. Sometimes this isn't possible, in which case companies have often chosen to avoid implementing new features altogether. It seems clear from the evidence of the last few years that software patents are actually preventing the adoption of new technology, rather than encouraging it. From lawrence at altlawforum.org Sat Mar 19 01:54:57 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Sat, 19 Mar 2005 01:54:57 +0530 Subject: [Commons-Law] Copyright Permissions and Docu Film Makers In-Reply-To: Message-ID: Hi all I received a mail from Rajiv Mehrotra seeking some clarifications on the position with regard to the use of pre existing material by film makers. What is the law in India regarding the use of (a) Visual material (b) Recorded music from other sources e.g.: music CD's or in the case of visuals captured from TV or borrowed from other films available on CD in documentary films produced for us and screened on TV. Is there any length/duration for which permission is not required. If so is there any procedure re acknowledgment, registering the use, informing the copy right holder etc. I am forwarding my reply to all on the list since it may be useful. I am sorry if this is a legal technical reply, but the area is opaque and I will be working on a Chapter that simplifies the area through illustrations. Would be happy to answer specefic queries lawrence ======== Hi Rajiv To partially answer your question. The ability of film makers to use pre existing material. There is understandably a lot of confusion in this area, and I will try to not add to the confusion, but I must provide a warning that the area is a little technical so do feel free to ask for any clarifications. When we work on the chapter for Double Take we can make it more user friendly through illustrations etc. I will also mail a copy to the vikalp group First clarification: All the myths around the amount time that is allowed while using music or film, instance 10 seconds, 20 seconds are all myths, and not founded on law. So what is the position in law 1. The copyright Act defines various classes of works that may be granted copyright protection. The first class of works include literary works, artistic works, dramatic works, and musical works. It also protects cinematograph films and sound recordings, which could be considered the second class. The Act then goes on to define an entire regime of rights, obligations and exceptions for these works. The point to note however is that it treats the first class of works differently from the second, and that is where the genesis of the confusion lies 2. The copyright owner is then granted an entire range of rights (sec. 14) which include the right reproduce, the right to communicate the work to the public etc. 3. The ordinary way to use something that is copyrighted is then to seek permission 4. However there also exists an exception to all of this in the form of the principle of Œfair dealing¹ or fair use in Sec. 52 of the Act. This is basically the defence that allows people to make reasonable usage etc without violating the right of the copyright holder. The most significant provision in 52 is Sec. 52 (1)(a) which allows for (i) private use, including research; and (ii) criticism or review, whether of that work or of any other work. The phrases criticism or review are critical since in the case of literary works, artistic works etc they would include using extracts etc which are reasonable. There are also a number of test that have emerged from case law on what would amount to a fair or a reasonable use . (These include nature of use, amount that is used etc). This provision is however not applicable to cinematograph films or sound recordings 5. The only exception in sec 52 for cinematograph films is the ability of educational institutions to show the film to its students and staff . There are a whole range of exceptions for sound recordings but not of the sort that film makers will be interested in. They relate more to the ability to make version recordings etc So what happens when there is this Bermuda triangle in the law on Cinematograph films and sound recordings? You could take an approach if a Œstrict interpretation¹ in which case the copyright owner could argue that nothing is allowed. This would be based on a cumulative reading of Sec. 51 with sec. 2(f), 2(ff) and Sec. 14(d). Alternatively you could have a liberal reading of the Act to then argue that as per Sec. 14 the only rights that accrue to the owner of a cinematograph film are the rights (i) to make a copy of the film, including a photograph of any image forming part thereof;  (ii) to sell or give on hire or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;  (iii) to communicate the film to the public; All of these rights deal with the work as a whole, and not to a part of the work, so if someone is using a clip then there is no right that is violated. This is however a slightly risky approach, since the courts are very conservative in their readings, and if someone points out that as long as there is no exception provided in Sec 52 for cinematograph films, then it has to be considered to be excluded. Unfortunately in India we do not have any case law precedent to back a Œfair use;¹ argument for cinematograph films as yet. Fortunately, there are a number of cases from the UK and the US which do exists on the matter. In Indian copyright law, the courts have always relied on US and UK precedent in the absence of any Indian precedent. Then of course there is the Œpermission¹ route, which is to seek permission form the owner of copyright to use the material. There are three things that may happen 1. You get a no strings permission 2. you get permission as long as you pay royalty 3. You are denied permission (this will lead to a whole range of interesting possibilities both from the copyright act and from freedom fo speech and expression, but I wont go into the details in this mail) The copyright act does have provisions for Œcompulsory license¹ when the materials are denied circulation in the public domain. So my suggestion would be this: * Film makers should not be worried about using pre existing material , if it is incorporated as a part of some new work, provided that they take reasonable care to ensure that it is not a very long clip (again this is subjective determination and there are no hard and fast rules). To provide an example, even the use of a small portion of the main riff of Deep Purple¹s Smoke on the water may be considered infringement while a much longer use of a section which is not the major riff may be considered alright. To reiterate, there is no basis for the assumption of the time that is allowed. * That if one were to go by the strict interpretation of the law, then it would make the life of most film makers rather miserable, and this area is very similar to freedom of speech cases, and there will only be clarity if there are test cases. This is particularly true when you are denied permission, and you go ahead and use anyway. The line between copyright/ censorship is very thin here I am also including a mail from Prof. NSG from whom I asked for some clarifications. Prof. NSG is part of the Drafting Committee on The Copyright Act. I hope this has helped more than confused, I would e happy to answer particular questions. Regards Lawrence Dear Lawrence, Your interpretation is correct. The existing provision is silent. So there could be a strict interpretation. But the general approach will be if it is a short clip and not substantially affect the economic interest of the owner of the film it will be treated as fair use. One may use the english and us cases for this and link it with the Indian cases in case of literary works. There is going to be a change in the new amendment under consideration. You may advise them to go for short clips. Nsg >> >> >> >> > ------ End of Forwarded Message From mymailgroups at gmail.com Sat Mar 19 02:21:51 2005 From: mymailgroups at gmail.com (r.m.) Date: Sat, 19 Mar 2005 02:21:51 +0530 Subject: [Commons-Law] Reqd. full text of WTO obligations - any suggestion? Message-ID: <423B3F67.7040800@gmail.com> Hello, can anyone of this list please suggest me how to get (url etc.) the full text of WTO obligations, and the role of GOI, with all changes sequentially (i mean the whole genesis) arranged? is it available for the public? rgds r.m. From shivamvij at gmail.com Sat Mar 19 17:10:37 2005 From: shivamvij at gmail.com (Shivam Vij) Date: Sat, 19 Mar 2005 03:40:37 -0800 Subject: [Commons-Law] Press group harasses blogger (Reporters Without Borders) Message-ID: <006401c52c78$7f46a100$8311e0dc@iccec3176b309c> The Internet under surveillance 17 March 2005 INDIA Press group harasses blogger Reporters Without Borders has expressed its concern to the head of the Times of India press group about its lawyers' harassment of a journalist running the weblog mediaah.com, which has driven him to close it. "Against a background in which bloggers are being harassed and imprisoned in all four corners of the world, this type of step on the part of a media firm appears to us misplaced," the worldwide press freedom group said in a 17 March letter to the managing director of the Times of India, Vineet Jain. "Reporters Without Borders urges you to drop all harassment or legal action against Pradyuman Maheshwari, who runs the weblog Mediaah.com", the letter said. "We are contacting you as the result of a letter drawn up by your company's lawyers instructing this weblogger to delete 19 messages seen as "defamatory" of the Times of India and its management. On receipt of this letter and for fear of a long and costly legal action being launched against him, Pradyuman Maheshwari decided to shut down his blog. "After examining the offending articles, it seems to us that this journalist was only exercising his right to comment on and criticise your group's commercial strategy and, more generally, his right to freedom of expression. "Moreover, as a media owner, you can easily imagine that such a step could have harmful consequences for free expression. It could effectively dissuade other website managers from handling business news, which they have every right to do. "Against a background in which bloggers are being harassed and imprisoned in all four corners of the world, this type of step on the part of a media firm appears to us misplaced. We are ready to discuss this case with you at your convenience". A law firm engaged by the Times of India wrote to Pradyuman Maheshwari on 5 March 2005, instructing him to remove 19 articles posted online that it considered "defamatory" and likely to "tarnish the image" of the press group. After receiving this letter, Maheshwari decided, on 10 March, to close his weblog. "I think that I would win a possible defamation case against the Times of India. But I am only one journalist against a powerful press group. If they act against my blog on future occasions, sooner or later, I will have to close it. I prefer to anticipate any problems in advance and shut down this publication," he told Reporters Without Borders. Documents relating to the case, including the letter from the Times of India's lawyers, can be read on http://mediaha.blogspot.com. Indian Internet-users have launched an online petition to back Mediaah: http://www.petitiononline.com/mediaahp/petition.html ------------------------------------------------------ Julien Pain Bureau Internet et libertés / Internet Freedom desk ___________________________________________ Reporters sans frontières / Reporters Without Borders TEL: ++ 33 (0) 1 44 83 84 71 FAX: ++ 33 (0) 1 45 23 11 51 internet at rsf.org www.internet.rsf.org Read our annual report on the state of online freedom in more than 60 countries - The Internet Under Surveillance : http://www.rsf.org/rubrique.php3?id_rubrique=433 Consultez notre rapport annuel "Internet sous surveillance", qui détaille la situation de la liberté d'expression sur le Net dans près de soixante pays : http://www.rsf.org/rubrique.php3?id_rubrique=432 -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050319/8450328f/attachment.html From patrice at xs4all.nl Sat Mar 19 04:41:08 2005 From: patrice at xs4all.nl (Patrice Riemens) Date: Sat, 19 Mar 2005 00:11:08 +0100 Subject: [Commons-Law] Press group harasses blogger (Reporters Without Borders) In-Reply-To: <006401c52c78$7f46a100$8311e0dc@iccec3176b309c> References: <006401c52c78$7f46a100$8311e0dc@iccec3176b309c> Message-ID: <20050318231108.GB65345@xs4all.nl> On Sat, Mar 19, 2005 at 03:40:37AM -0800, Shivam Vij wrote: > The Internet under surveillance > 17 March 2005 > > INDIA > > Press group harasses blogger > > Reporters Without Borders has expressed its > concern to the head of the Times of India press > group about its lawyers' harassment of a > journalist running the weblog mediaah.com, which > has driven him to close it. (...) > > > "After examining the offending articles, it seems > to us that this journalist was only exercising > his right to comment on and criticise your > group's commercial strategy and, more generally, > his right to freedom of expression. > > "Moreover, as a media owner, you can easily > imagine that such a step could have harmful > consequences for free expression. It could > effectively dissuade other website managers from > handling business news, which they have every > right to do. Reminds me of the saying "The freedom of the press is for those who own one" From sollybenj at yahoo.co.in Sat Mar 19 09:48:16 2005 From: sollybenj at yahoo.co.in (solomon benjamin) Date: Sat, 19 Mar 2005 04:18:16 +0000 (GMT) Subject: [Fwd: Re: [Commons-Law] Re: The gates of intellectual property (Lawrence Liang) (Hasit Seth) (Sudhir) (Hasit)] In-Reply-To: <4239D2AD.7010808@sarai.net> Message-ID: <20050319041816.87836.qmail@web8403.mail.in.yahoo.com> Hi This is in continuation of a very interesting discussion -- on Diana's and Hasit's on the divide between research in the university "basic" settings and its application. This comes from a close look at three of India's large industrial clusters -- one in Delhi, manufacturing in 1995 abaout 30% of cables (23 family types) and conductors (both Cu and Al); textile clusters Kancheepuram (of 'high grade' silk sarees and Ramanagaram (silk reeling) with Asia's largest silk cocoon market). Our stidies in these have been to trace how these grew paralleling the economic transformation to show that very few if not all of the innovation came out of non-university trained people, and on the job. There is little space here to describe the facinating range of innovations that we found in all three places, and how fast (3 months) a new fabric out of silk waste found itsefl in the high fashion markets in Milan, New York and Tel Aviv via "suitcase entreprenurs". There was no IPR, no technical or management training by NGOs or governemtn agencies, and the few cases where there was an attempt to promote 'new technologies' -- one by an NGO, and another by the Tata Energy research institute on silk reeling, these were total disasters and the over qualitifed techncians doing their stints in the feild, were basically laughing stocks of the srcuffy locals who commented that their saleries would be better utilized to buy more cocoons! As for 'basic research', one only has to visit the computers supplied by Japan aid laid out in thick plastic sheets in a 'demonstration' Tata silk farm near Bangalore. I suspect that as part of a Nehruian development argument, the issue of basic research in universities, and sort of scrummy / slummy / applied research innovation reflects a politics of the abiliy to cornor resources. Earlier, it was the select few in the IITs and now its the multi-nats via complex contractual regulations and IPR in their new found collabourations. I want to return here to a very interesting document -- the 1912 mysore economic conference by Sir Vishwaria where the issue was technological innovation in silk production and the guests included an italian expert. The verbatim accounts of discussions in that document show how the big big debate was if to have research set out in exclusive labortaries, or then to have the scienctist sleep out on the farms with the farmers and observe how they reared cocoons and make yarn, and in a sense, test out their 'innvation' in the feild and get out of the 'technology transfer'; Basic and applied. well, for those interested in this, we'll be happy to share this, perhaps in a more reflective peice. But for now, I strongly urge a look at the 1912 confernece! History may help. Cheers Solly --- Jeebesh Bagchi wrote: > > > -------- Original Message -------- > Subject: Re: [Commons-Law] Re: The gates of > intellectual property > (Lawrence Liang) (Hasit Seth) (Sudhir) (Hasit) > Date: Thu, 17 Mar 2005 19:40:33 +0100 (CET) > From: diana at bootlab.org > To: Jeebesh Bagchi > References: > <20050316110008.1485228D913 at mail.sarai.net> > <8b60429e0503162205224b09f3 at mail.gmail.com> > <4239C1DE.4050003 at sarai.net> > > > > Dear Hasit, (and Jeebesh), > > Just to chime in... I'm working less with the nuts > and bolts of the > technology side and more on the social side. A big > part of that has been > working with something like an innovative social > software development > practice in open source contexts. Practically, this > is collaborative > software development, which in the best case takes > up the social on the > levels of defining system architectures. It also > means breaking down the > barriers between how we understand user/developer > and the different types > of relationships we have to the kinds of digital > tools we use (and make). > > In the end, it is not only about cloning stuff, but > also emulating the > ways it gets done. I can't remember the specifics, > but some academic > research unit somewhere in europe spent tons of > money developing computer > tools for blind people. The blind folks didn't like > them at all. Big > surprise to find out nobody asked any blind people > what kind of tools > they'd like to see developed! It shouldn't have > shocked me, because this > type of R&D is everday - but I really could not > understand how such a > group could imagine functioning without having blind > input from the very > start. > > For me, I suppose it is more interesting to have > more fluid relationships > that hopefully define use scenarios and basic > architectures and then see > how that impacts on when the Eureka moment occurs. > > > keeping it brief in Berlin, > > Diana > > > dear Hasit, > > > > Thanks for your sobering provocation to think > afresh the `question of > > newness` in software. I do agree with you that the > emergence of new > > ideas in software is fairly interlaced within many > contexts and it will > > be futile to isolate strands in a simplified way. > > > > Need to think this simple question that you raise > about open source not > > being able to come up with a `new` breakthrough > idea of software ( it > > primarily working on an `imitation` model of > creative participation). > > > > This leads to an interesting question - how is > `newness` produced?. And, > > why is the `open-laboratory-peer-production` > practices of software > > development not producing fresher imagination of > software? > > > > Do correct me i am getting you wrong. > > > > Thanks for raising this questions. > > > > best > > jeebesh > > > > Hasit seth wrote: > > > >>Hi Sudhir and Everyone, > >> > >> This is just a subjective take on comp. sci. > research in an > >>attempt to answer Sudhir's query. I do not > believe that there is an > >>artificial divide between "basic" computer science > research done in > >>Universities and "applied" stuff being done in the > industry. > >>Mathematics that relates to computer science is > done largely in > >>Universities, but fundamental theoretical computer > science (which is > >>some math anyway) is done everywhere. Best of > computer science > >>theorists Donald Knuth of Stanford is an active > programmer though a > >>mathematician by training. But Al Aho, who > crystallized compiler > >>research, works at Bell Laboratories and does a > lot of theory. Some > >>esoteric stuff such as "hard" Artificial > Intelligence has only > >>academic interest because industry sank a lot of > money in it without > >>any good results. But fields such as searching > (Google), computer > >>vision (Siemens and tons of other companies), > speech recognition (IBM, > >>Microsoft, Matsushita...) have a lot their theory > and applications > >>being done both in academic and industrial world. > Historically, > >>terrific stuff has come out of industry > "incubators" such as Bell > >>Labs (UNIX) and Xerox PARC (Ethernet, Mouse, GUI, > Laser Printers...). > >> > >> Bigger issue than academic/industry divide > is the lack of major > >>breakthroughs in research. I understand that many > readers of this > >>list are interested in > >>Legal/Social/Ethical/Political/Emotional/Activism > side of innovation > >>and not the technical aspects, but any discussion > of these aspects of > >>invention without considering technology issues is > bizarre. Open > >>source is a reaction to this lack of major > innovation in computer > >>industry. For example, from a user's viewpoint > why should I upgrade > >>from Windows 95 to Windows XP and pay any extra > money for it when all > >>I get is better eye-candy on screen but nothing > significant > >>functionally? A group of hackers can get together > and clone this OS > >>and applications and not pay the "windows upgrade > tax" to Microsoft. > >>That is what is Linux today. Earlier such cloning > was for academic > >>purposes or just for hacking fun - BSD is a clone > of Linux, GNU is a > >>UNIX clone, GNU/Linux is still a UNIX clone. Yes, > it is "free" - that > >>is the innovation here! but technology wise? not a > major breakthrough. > >> To say this is NOT to undermine the TREMENDOUS > efforts of > >>BSD/GNU/Linux hackers, because in first place > writing the code and > >>then making everything work through a community > effort is just a > >>fantastic achievement. For those who are > interested in state of system > >>software research, Rob Pike of Bell Labs, a > respected UNIX hacker, > >>wrote a paper in 2000 about how system software > research has become > >>stagnant (here: > http://www.cs.bell-labs.com/who/rob/utah2000.pdf) > >> > >> Now what could be a breakthrough in software? > No predictions. > >>But take an example: Continuous speech > recognition where user speaks > >>normally to computer (with no special microphones, > no a priori > >>training of speech models, etc.; this does mean an > intelligent > >>conversation, but recognizing continuous spoken > words syntactically > >>and semantically) is a tough problem, and any > operating > >>system/application solving that will be a major > breakthrough. > >>Everyone - academia, industry and open source > community is trying to > >>solve this problem since years, and patents are > least of hurdles here, > >>though a lot of approaches (neither of which is > entirely === message truncated === Dr. Solomon Benjamin #32, 2nd. 'A' Cross, 10th. Main Koramangala, 4th. 'C' Block BANGALORE 560034 INDIA Phone: 91-80-2552-5485 ________________________________________________________________________ Yahoo! India Matrimony: Find your life partner online Go to: http://yahoo.shaadi.com/india-matrimony From prashant at nalsartech.org Sat Mar 19 11:26:06 2005 From: prashant at nalsartech.org (Prashant Iyengar) Date: 19 Mar 2005 11:26:06 +0530 Subject: [Commons-Law] Prasar Bharati sends legal notice to channels on cricket footage Message-ID: <1111211766.2760.0.camel@hogwarts> http://www.thehindubusinessline.com/2005/03/19/stories/2005031902400700.htm ________________________________________________________________________ Prasar Bharati sends legal notice to channels on cricket footage Our Bureau New Delhi , March 18 PRASAR Bharati on Friday sent legal notices to over a dozen channels, including NDTV, Aaj Tak, ESPN-Star Sports and CNBC, for alleged violation of the copyright norms, by airing footage of the on-going India-Pakistan cricket series. According to a back on the envelope calculation, the national broadcaster has dues of about Rs 1.16 crore from these broadcasters. Speaking to newspersons, the Prasar Bharati CEO, Mr K.S. Sarma, said, "We are not going to compromise on the set terms and conditions. I expect that with these legal notices, they stop or be ready to face legal consequences. We are dead serious about it." He added that several of the broadcasters have violated the norms by promoting and airing cricket-related programming. In fact, sports broadcaster, ESPN-Star Sports has been running a regular highlights package, which is currently under dispute. Mr Sarma also said that Prasar Bharati is yet to recover Rs 99 lakh from broadcasters who had used its Olympic footage. According to the letters sent out to channels, a broadcaster can utilise sound bites not exceeding 30 seconds in news bulletins free-of-cost subject to the secondage utilised not exceeding two minutes per day. "Sound bites may be used only as a part of regularly scheduled daily programmes. Such programmes must not be positioned or promoted as cricket match programmes," it said. Channels were asked to pay Rs 6,000 per minute for extra footage used. Digital terrestrial transmission PRASAR Bharati is reviving digital terrestrial broadcasting to cater to a niche segment of viewers who are on the move. According to Mr Sarma, currently five channels are available in the format and this could be increased to 25. However, the whole issue of digital terrestrial transmission is being debated and private broadcasters are not permitted to be present on terrestrial networks. However, the national broadcaster has met with success on its free direct-to-home (DTH) venture. The Prasar Bharati board on Friday decided to increase the number of television channels to 50 from the present 33. Also, it will charge a carriage fee of Rs 90 lakh to Rs 1 crore from broadcasters next year as carriage fee. Besides this, the national broadcaster wants to be present on Rupert Murdoch' BskyB DTH platform in the UK. Mr Sarma said that he hoped to discuss this issue with the NewsCorp Chief during his visit to India. © Copyright 2000 - 2005 The Hindu Business Line From anivar.aravind at gmail.com Sun Mar 20 22:46:53 2005 From: anivar.aravind at gmail.com (Anivar Aravind) Date: Sun, 20 Mar 2005 22:46:53 +0530 Subject: [Commons-Law] Fwd: Software Patents in the latest amendment In-Reply-To: References: <423AA201.6020109@gmail.com> Message-ID: <35f96d4705032009167036bfc0@mail.gmail.com> hey Lawrence, I forw.arded u'r Briefing note to in-parl mailinglist of FFII. This is the insighting reply from RMS . and FFII India site is created at http://www.ffii.in/. Persons intrested in editing the site can obtain rights from buero at ffii.org PILCH Hartmut's Amendment proposals for Indian Software Patent Law http://wiki.ffii.org/InAmend0503En ~solidarity Anivar ---------- Forwarded message ---------- From: Richard Stallman Date: Sat, 19 Mar 2005 19:21:14 -0500 Subject: Re: Fwd: Software Patents in the latest amendment To: Anivar Aravind Cc: in-parl at ffii.org The arguments made are good, but don't include some of the most powerful ones: * The danger that users can be sued for what their computers are doing. * That software patents directly restrict millions of people, everyone who has a computer, and therefore cannot be treated as an economic issue alone. The text uses the term "protection" which is propaganda for the other side. It's hard to argue against a plan to "protect" someone that is in danger. We need to reject the claim that patents do this. In particular, this paragraph is quite misleading: > Software has traditionally been protected under copyright law since > code fits quite easily into the description of a literary work. > Software Patenting has recently emerged (if only in the US, Japan and > Europe) as an alternative that software companies are increasingly > employing to, in order to protect their products. This paints an act of threatened aggression as mere self-defense. This is exactly how the pro-patent forces try to mislead the public. We must not endorse their deception. This also spreads their favorite misunderstanding about what software patents do. A software patent is not linked with one specific program. Your program need not be similar to any existing program to infringe software patents. Indeed, any large program will infringe many software patents even if it is quite innovative. Each software patent is a prohibition on implementing a certain method or feature. A program is a combination of methods and implements features; therefore, it will infringe patents. This paragraph is also misleading in its claim that software patents have "emerged" in Europe. It is uncertain that they are valid in Europe, and FFII is fighting to make sure they are not. The situations in the US and Europe are very different. When read that paragraph, so full of subtle support for our adversaries, I had the feeling you were defending software patents. Later on I could see that that is not so--the rest of the article proceeds to argue against them. But this paragraph undermines what follows. I think you need to delete it. From anujbhuwania at gmail.com Mon Mar 21 02:45:17 2005 From: anujbhuwania at gmail.com (Anuj Bhuwania) Date: Sun, 20 Mar 2005 16:15:17 -0500 Subject: [Commons-Law] protests in kenya against indian patent amendment bill Message-ID: http://news.bbc.co.uk/2/hi/africa/4361863.stm HIV Kenya protest at patent law By Muliro Telewa BBC News, Nairobi Police in Kenya have stopped hundreds of people living with HIV and Aids from demonstrating at the Indian High Commission in Nairobi. The protests, also planned in Uganda and Tanzania, are over an Indian draft law which may block poor countries' access to anti-retroviral (ARV) drugs. According to WTO rules, India is obliged to protect and enforce drug patents from the start of this year. This will stop routine generic drug production, protesters say. The production has led to major reductions in the cost of ARV medicines, as well as other medicines that treat other diseases affecting millions of people in developing countries. Message for India Some protesters gathered in Nairobi's Uhuru Park, singing to console themselves after the police banned their planned demonstration through the town to the Indian High Commission. These are $20 a month as compared to $395 for [patented] products James Kamau The Aids victims, accompanied by some members of various pressure groups, said it was necessary to let Kenyans know that they may soon not be able to afford medicine in Kenya because of India and the World Trade Organisation (WTO). James Kamau, a self-declared HIV-positive patient, showed me some of his Indian-manufactured ARV drugs. "These are $20 a month as compared to $395 for [patented] products," he said. The police agreed to escort representatives of the protesters to the high commission to hand over their letter of protest. 'Let us protest' They want India to ignore what they termed "WTO dictatorship", by which India is obliged to observe patents according to its rules on trade-related aspects of intellectual property rights. Although they eventually presented their letter to the high commission, the group complained that they should have been allowed to demonstrate. They said it was sad that although the government admitted that between 500 and 700 people died in the country daily from Aids-related diseases, it was not ready to give them a chance to express their opinion. The Indian parliament will discuss amendments to the country's Patent Act of 1970 in the next few weeks. If the amendment is passed manufacturers of generic drugs in India, where Kenya gets most of its ARVs, will pay some commissions to originators of the drugs for a period of 20 years. From skjha at iitb.ac.in Mon Mar 21 19:12:52 2005 From: skjha at iitb.ac.in (Shishir K Jha) Date: Mon, 21 Mar 2005 19:12:52 +0530 (IST) Subject: [Commons-Law] full text of WTO obligations - any suggestion In-Reply-To: <20050319041812.169DA28D900@mail.sarai.net> References: <20050319041812.169DA28D900@mail.sarai.net> Message-ID: <2200.10.127.133.110.1111412572.squirrel@gpo.iitb.ac.in> The WTO website is very thorough on rules and obligations [see www.wto.org]. For India specific stuff I have not seen any comprehensive site as yet. There is a text: WTO in the New Millenium, ed. Arun Goyal and Noor Mohd., jointly published by the MVIRDC World Trade Center, Bombay and Academy of Business Studies. Numerous editions have been brought out. The 4th edition [2000] was quite comprehensive from the perspective of the Indian obligations. Academy of Business Studies 24/4866 Sheeltara House Ansari Road, New Delhi - 2 Tel: 328 1314 [seems definitely old] arung at nda.vsnl.net.in wto at mantraonline.com Hope this helps. best Shishir Kr. Jha > Today's Topics: > > 1. Reqd. full text of WTO obligations - any suggestion? (r.m.) > ---------------------------------------------------------------------- > > Message: 1 > Date: Sat, 19 Mar 2005 02:21:51 +0530 > From: "r.m." > Subject: [Commons-Law] Reqd. full text of WTO obligations - any > suggestion? > To: Commons Law > Message-ID: <423B3F67.7040800 at gmail.com> > Content-Type: text/plain; charset="ISO-8859-1"; format=flowed > > Hello, > can anyone of this list please suggest me how to get (url etc.) the full > text of WTO obligations, and the role of GOI, with all changes > sequentially (i mean the whole genesis) arranged? is it available for > the public? > rgds > r.m. > > > ------------------------------ From prashant at nalsartech.org Mon Mar 21 21:54:32 2005 From: prashant at nalsartech.org (Prashant Iyengar) Date: Mon, 21 Mar 2005 21:54:32 +0530 Subject: [Commons-Law] Fwd: Software Patents in the latest amendment In-Reply-To: <35f96d4705032009167036bfc0@mail.gmail.com> References: <423AA201.6020109@gmail.com> <35f96d4705032009167036bfc0@mail.gmail.com> Message-ID: <1111422272.423ef5408b2e3@www.nalsartech.org> Hi Aravind, As a co-compiler of the paper in question, and since I don't yet see a reply to this posting from Lawrence himself, I'd like to get a few words in. In re: > * The danger that users can be sued for what their computers are doing. > > * That software patents directly restrict millions of people, everyone > who has a computer, and therefore cannot be treated as an economic > issue alone. I feel the two issues RMS points out that we've omitted are genuinely important. Maybe if Lawrence agrees, we could raise these issues in the text in its next revision. > the term "protection" .. > this paragraph is quite misleading > spreads their favorite misunderstanding I think the criticism levelled here is again very powerful. In focussing on stringing the main arguments together, perhaps we were not so cautious about the language we were using. Certainly I can't think of a way to rebut the point on its merits. That having been said, I'd still like to mount a somewhat diminished defence of the paragraph which I penned. While I understand the damage that the rhetoric of "protection" causes, I think the intended audience this paper was projected to reach necessitated dabbling in such terms. The protection-rhetoric has already come to be entrenched. Our options were either to attempt to counter the rhetoric, or to creatively redeploy it to suit our own purposes. I think we have ended up (since, I admit, there was no conscious plan either way) doing the latter. This is without prejudice to the real necessity we recognize to take on the rhetoric and counter it. But de-rhetoricizing, I think, is a different and far more sensitive project than this. The tenor of this paper was tactical - aimed at diffusing the present crisis in re the Patent Bill in India - rather than strategic (Lawrence might correct me here). > software patents have "emerged" in Europe. The whole sentence read: "recently emerged (if only in the US, Japan and Europe)". The paragraph was put there as a general introductory and not meant to be something to be gone through with a comb! If we wanted to be specific, I guess we'd have had to go into the minutae of the origins and difference between tangible and technical effects. .. I only wanted readers to register two things for the nonce and in their most dumbed down versions, they go somewhat like this: a) Software patent is this new thing that everyone is talking about. b) That very few people in the whole world (here's where the "if only.. " fits in) think its okay. While we're on the subject, the other problem in the paragraph is the statement "fits quite easily into the description of a literary work". I don't think that's true at all. But try "fits egregiously into the description of a literary work" on for size. Ugly. Not nice. Nothing else to say. Thanks for the interest you've shown in forwarding it to RMS. I am truly grateful for the feedback. The thoughts expressed in this email are personal, and do not reflect the views of either Lawrence or Anu, and I am open to being corrected on any of the points I have made. Warm regards, Prashant Quoting Anivar Aravind : > hey Lawrence, > > I forw.arded u'r Briefing note to in-parl mailinglist of FFII. This is > the insighting reply from RMS . > > and FFII India site is created at http://www.ffii.in/. Persons > intrested in editing the site > can obtain rights from buero at ffii.org > > PILCH Hartmut's Amendment proposals for Indian Software Patent Law > http://wiki.ffii.org/InAmend0503En > > ~solidarity > Anivar > > ---------- Forwarded message ---------- > From: Richard Stallman > Date: Sat, 19 Mar 2005 19:21:14 -0500 > Subject: Re: Fwd: Software Patents in the latest amendment > To: Anivar Aravind > Cc: in-parl at ffii.org > > > The arguments made are good, but don't include some of the most > powerful ones: > > * The danger that users can be sued for what their computers are doing. > > * That software patents directly restrict millions of people, everyone > who has a computer, and therefore cannot be treated as an economic > issue alone. > > The text uses the term "protection" which is propaganda for the other > side. It's hard to argue against a plan to "protect" someone that is > in danger. We need to reject the claim that patents do this. > > In particular, this paragraph is quite misleading: > > > Software has traditionally been protected under copyright law since > > code fits quite easily into the description of a literary work. > > Software Patenting has recently emerged (if only in the US, Japan and > > Europe) as an alternative that software companies are increasingly > > employing to, in order to protect their products. > > This paints an act of threatened aggression as mere self-defense. > This is exactly how the pro-patent forces try to mislead the public. > We must not endorse their deception. > > This also spreads their favorite misunderstanding about what > software patents do. A software patent is not linked with > one specific program. Your program need not be similar > to any existing program to infringe software patents. > Indeed, any large program will infringe many software patents > even if it is quite innovative. > > Each software patent is a prohibition on implementing a certain method > or feature. A program is a combination of methods and implements > features; therefore, it will infringe patents. > > This paragraph is also misleading in its claim that software patents > have "emerged" in Europe. It is uncertain that they are valid in > Europe, and FFII is fighting to make sure they are not. The situations > in the US and Europe are very different. > > When read that paragraph, so full of subtle support for our > adversaries, I had the feeling you were defending software patents. > Later on I could see that that is not so--the rest of the article > proceeds to argue against them. But this paragraph undermines what > follows. I think you need to delete it. > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > From annymcbeal at gmail.com Mon Mar 21 16:50:33 2005 From: annymcbeal at gmail.com (anu) Date: Mon, 21 Mar 2005 16:50:33 +0530 Subject: [Commons-Law] Article from HT Message-ID: <8a1161ed05032103201bc5c33c@mail.gmail.com> Hi all, This is an interesting article on the continuing tiff between UPA govt. and BJP legislators over the pending patents bill and the need to pass a fresh bill. It also contains news regarding govt's decision to create 10 chairs for IP teaching in variuos higher education institutions. I am extremely interested in knowing the details of the course that will be taught here and if there is any contribution to desigining the course that members of this list are involved in or are interested in doing. The article was available in the print edition of the HT which is now a paid section in HT site so I had to scan it, you won't find it on the HT site. Anuranjan -------------- next part -------------- A non-text attachment was scrubbed... Name: BJP4freshPatentBill.pdf Type: application/pdf Size: 370774 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20050321/fe401e62/attachment.pdf From prabhuram at gmail.com Tue Mar 22 01:13:32 2005 From: prabhuram at gmail.com (Ram) Date: Mon, 21 Mar 2005 20:43:32 +0100 Subject: [Commons-Law] US bills designate India to receive HIV/AIDS funds Message-ID: <68752c9f05032111436845a622@mail.gmail.com> Interesting coincidence, anyone? - Ram US bills designate India to receive HIV/AIDS funds 21 March, 2005 by ashok Separate US House of Representatives and Senate bills have designated India as the 16th country to receive President George W. Bush's Emergency Plan for HIV/AIDS Relief (PEPFAR) funds. Separate US House of Representatives and Senate bills have designated India as the 16th country to receive President George W. Bush's Emergency Plan for HIV/AIDS Relief (PEPFAR) funds. According to one estimate, more than 4.5 million Indians are believed to have the HIV virus, and the epidemic is spreading rapidly from urban to rural areas and from high-risk groups to the general population, according to the US India Political Action Committee (USINPAC). Representative Ileana Ros-Lehtinen (Republican from Florida), co-chair of the House Caucus on India and Indian Americans, told USINPAC, "President Bush's three main goals for PEPFAR are to prevent seven million new cases of HIV by 2008, to treat two million infected people, and to care for 10 million individuals affected by HIV/AIDS. "By designating India as the 16th country under PEPFAR, the president will meet and surpass these three goals." "As co-chair of the India Caucus, I support adding India as the 16th country under PEPFAR," she said. Congressman Eni Faleomavaega (Democrat from American Samoa), who had met with the USINPAC 2005 India delegation in New Delhi, said: "India already has the second most cases of HIV/AIDS in the world and will have the most cases in the world within six years. Action must be taken now to combat this disease and I commend USINPAC for working closely with members of Congress and other vested stakeholders to make sure that this issue receives the national and international attention it deserves." Manish Antani, legislative director of USINPAC, said: "I am very excited that USINPAC's hard work for two years has brought to fruition House and Senate bills designating India to be the 16th country under the PEPFAR funds. USINPAC will continue to work closely with members of Congress to create greater awareness of the urgency of the HIV/AIDS crisis in India." --Indo-Asian News Service From prabhuram at gmail.com Tue Mar 22 01:20:43 2005 From: prabhuram at gmail.com (Ram) Date: Mon, 21 Mar 2005 20:50:43 +0100 Subject: [Commons-Law] =?iso-8859-1?q?=22Bikram_Yoga=22=A9?= Message-ID: <68752c9f05032111504b5f3130@mail.gmail.com> >From the Los Angeles Times Bikram goes to the mat By copyrighting a sequence of yoga poses, a guru upset the discipline's harmonic balance. Now he's in court. By Hilary E. MacGregor Times Staff Writer Published March 21, 2005 If yoga has been around for 5,000 years, can a 21st century businessman claim to own a piece of it? Bikram Choudhury says yes. The flamboyant Beverly Hills yoga mogul, who popularized his style of yoga and then franchised a chain of studios bearing his name, has long rankled traditionalists, who dislike his tough business tactics and brash outspokenness. Now Choudhury is facing a challenge in a San Francisco courtroom, where a federal judge is hearing arguments in a lawsuit that some legal experts say could define a new frontier in intellectual property. At issue: Can Choudhury take a sequence of two breathing exercises and 26 yoga poses from an ancient Indian practice, copyright it and control how it is practiced? The legal protection he is allowed may depend on whether yoga is defined as an exercise regimen, a sport, a spiritual practice or a choreographed form of expression, like music or dance. The case, says UCLA law professor Neil Netanel, "really depends on an issue that isn't covered in the law: What is the nature of yoga?" Some legal experts believe the case could have broader implications, not just for yoga but for many forms of physical exercise. Stanford University Law School professor Paul Goldstein said a decision in Choudhury's favor would have "clear implications for any other activity that entails a combination of movement and environment," such as choreography or martial arts. "It could also have implications for basketball plays, or football plays, if it were decided that way." Adds Jim Harrison, a Sacramento attorney representing a group of yoga teachers and students who filed the lawsuit against Choudhury challenging his copyright claims, "If Bikram is successful, people will run to copyright bench-pressing and stepping." Choudhury's yoga is made up of a sequence of 26 postures (each of which is performed twice during a single class) and two breathing exercises. These postures are culled from 84 classical postures and more than 10,000 combinations. In Bikram classes, the room is heated to more than 100 degrees, he says, to work bodies like a blacksmith. Choudhury says his sequence, practiced exactly the way he instructs, has medical, mental and spiritual benefits. He claims it can lower blood pressure and cholesterol, cure arthritis, and heal reproductive and spinal problems. He also claims to have revived the athletic careers of Kareem Abdul-Jabbar and John McEnroe and to have cured former President Richard Nixon of phlebitis. While legions of lithe practitioners swear by the health benefits of his yoga, Choudhury offers no more than anecdotal evidence that his sequence of poses, performed in a sweat-laden room, offers any of the benefits he claims. There are currently more than 1,300 Bikram Yoga studios around the world (about 1,200 of them in the United States), taught by certified Bikram Yoga teachers. Choudhury estimates that 400 of them teach their classes correctly — that is, according to the way he prescribes. The rest offer modified versions of his program, with various levels of adherence to his sequence of poses, room temperature and other rules. Also, many gyms and studios offer hot yoga, sometimes calling it Bikram yoga, with teachers both certified and not. Choudhury doesn't like it when others mess with his system. "My system works, as long as people let me do my job my way," he said. "It is not just the sequence, it is how you do it: the timing, the mirrors, the temperature, the carpet. But if people only do it 99% right, it is 100% wrong. When someone tries to mess with it, the people won't get the yoga benefits. Then it is just calisthenic exercise, like running, jogging or swimming." Many in the yoga world contend that Choudhury has done nothing more than take 26 yoga moves and put them in sequence. Many classic and modern yoga styles involve sequences. But no one's ever claimed exclusive ownership of them and tried to control their practice through copyright. Choudhury has tried various legal maneuvers to protect what he considers his intellectual property. For example, teachers at his franchised studios are supposed to follow an approved text, or "dialogue," that he has copyrighted. He has also copyrighted the name of his studios (Bikram's College of India) and the name of his yoga program (Bikram Yoga). John Marcoux, an intellectual property lawyer who runs two Bikram studios in Chicago and who advises Choudhury on various legal issues, says Choudhury is trying to "keep the yoga pure." "What he is doing is like copyrighting a song," Marcoux said. "It is not the notes, but the way you sequence the notes, that distinguish Beethoven from the Beatles." In 2002, Choudhury began to crack down on those who tinkered with his teaching formula. His attorney sent out cease-and-desist letters to numerous studios teaching Bikram yoga, accusing them of violating his rules. In February 2003, according to court documents, Choudhury posted a notice on his website that he had obtained a copyright registration for his asana sequence. The notice warned of possible legal action against violators. "Virtually all modifications or additions to the sequence will constitute copyright infringement, including: the unauthorized use of even a small number of consecutive postures; the addition of different postures or breathing exercises to the sequence or portions of the sequence; the teaching or offering of the sequence with or without the Dialogue; or by addition of extra elements to the sequence, like music." The posting also said Choudhury would seek damages up to $150,000 for each infringement. After he sued an Orange County yoga studio for copyright and trademark infringement in 2002, a small group of yogis went on the counterattack. Taking a page from the "open source" movement in the computer software world, they called themselves "Open Source Yoga Unity." The group is headed by Vanessa Calder, 28, a yoga teacher who learned the 26-pose Bikram sequence from her parents without getting formal certification. (Her parents, who own four Yoga Loka studios in Northern California, received one of Choudhury's cease-and-desist letters in 2002.) Open Source Yoga has about two dozen members, mostly teachers or students of Bikram and other styles of yoga. Most choose to remain anonymous because they are afraid that Choudhury may sue them if their identities are known, said Calder, the group's chief executive. In July 2003, Open Source filed a suit in U.S. District Court in San Francisco, asking the judge to declare that Bikram could not use his copyrights to stop others from practicing or teaching classes that used the Bikram sequence of poses. At a hearing in January, the attorneys finally stood before Judge Phyllis Hamilton and argued the main issue in the case: What is the scope of Choudhury's copyright protection? On one side of the courtroom sat Choudhury, self-proclaimed yogi to the stars, in pinstriped suit, a diamond-studded watch on his wrist, a pink silk handkerchief peeking out of his breast pocket. On the other side, dressed in a flowing Indian print skirt, sat Calder, surrounded by several supportive yoga students and teachers. As the lawyers for both sides argued their cases, Hamilton struggled with Indian names and yogic concepts, and with what exactly was at stake. "This is a very unusual case," Hamilton began. "I don't even know what is being sought. Am I pronouncing this correctly? Bikram?" "Your honor, we are looking for a judgment that yoga teachers may teach the sequence described in this book ["Bikram's Beginning Yoga Class"] without infringing on Mr. Choudhury's copyright," said Open Source's lead lawyer, Elizabeth Rader, a Palo Alto attorney specializing in intellectual property cases. "My clients want to be able to teach the exercise, the method of fitness, described in this book." Representing Choudhury, Palo Alto attorney Susan Hollander — also an intellectual property specialist — sought to persuade Judge Hamilton to force the Open Source members to reveal their identities and explain how they are interpreting the "Bikram's Yoga" sequence so the court could determine whether that interpretation is "significantly similar" to Bikram's. "To this day we do not know what the members of O.S.Y.U. are doing," Hollander told the judge. "So we can see if one pose has been altered, or two…. We want them to tell us." "I imagine they were reluctant to say who they are if he [Bikram] only sues people who are doing that," Hamilton responded. Hollander contends that yoga is no different from music or any other form of expression. "There's nothing special about yoga which should make it special or in some way removed from copyright law," she said. "In my view it is just a form of expression that has public domain elements to it." That view is a stretch to some yoga enthusiasts. "To say that, basically, a tradition of working with the body can be somebody's intellectual property — no matter how they put them together — seems pretty bizarre," said Deborah Willoughby, founding editor of Yoga International, a magazine that focuses on the spiritual aspects of yoga. "It's a violation of the spirit of yoga." Copyright law does not extend to an idea or process; it only addresses the way an idea is actually expressed. That means a book, video or photograph can be copyrighted, but teaching a recipe written in a cookbook, for example, could not. Athletic movements, such as a basketball star's signature slam-dunk, cannot be copyrighted because sports games are unscripted and have unanticipated occurrences. "I'm not aware of anyone who has successfully done what Bikram is trying to do," said Netanel, who has discussed the case in his law classes. "Which is, through the guise of copyrighting photographs or descriptions of an exercise method, to control the practice of yoga." Hamilton is expected to rule on the copyright issue this spring Some of Open Source's executive board members studied with Choudhury but have since struck out on their own, creating new sequences and styles of yoga — with a definite Bikram influence. They are among the most outspoken of his critics. Ted Grand studied with Choudhury in 1999 and started four Bikram studios in Canada. Grand built studios with radiant heating panels, reclaimed hardwood floors from old gyms, and nontoxic paint. "Bikram was very upset with us for not putting carpet down in the yoga room, and threatened to sue," he said. Rather than fight, Grand came up with his own sequence of about 40 poses — done in a hot room — and created a small chain of studios. He called his new style Moksha Yoga. Jimmy Barkan, of Fort Lauderdale, Fla., also teaches yoga based on his experience with Choudhury. He calls his classes "Hot Yoga With Jimmy Barkan" but has not changed the sign outside his studio, which reads "Yoga College of India." "Bikram brought this style of yoga to this country, and for that I will be forever grateful," said Barkan, who says a phone call from Choudhury forbidding him to teach at certain yoga conferences and vacations prompted him to break away from the franchise. "He is extremely passionate and charismatic. And when he is on, he is extremely inspiring." Added Barkan: "We just didn't want to be looking over our shoulders all the time. We want the freedom to be able to do whatever we want. We did not want policemen to come into the studio and say, 'This is an illegal class; you are not allowed to do this triangle at this time.' " From prabhuram at gmail.com Tue Mar 22 15:29:41 2005 From: prabhuram at gmail.com (Ram) Date: Tue, 22 Mar 2005 10:59:41 +0100 Subject: [Commons-Law] NDTV: Indian Patents Bill likely to be passed In-Reply-To: <68752c9f050322013732c59b9c@mail.gmail.com> References: <68752c9f050322013732c59b9c@mail.gmail.com> Message-ID: <68752c9f05032201595fe31b2a@mail.gmail.com> Patents Bill likely to be passed NDTV Correspondent Tuesday, March 22, 2005 (New Delhi): The Patents Bill is likely to be passed in Parliament today after the Left said most of its demands had been met by the government. Ten of the 12 objections made by the Left have been settled. They include 'compulsory licensing' of pharmaceutical companies, right to challenge the grant of a patent before it is granted and protection to small Indian drug companies. Two outstanding issues will be discussed after the bill is passed. They include drug prices and inadequate protection to India's traditional forms of medicines and grains. These issues will be sent to an expert committee. The passage of the bill would be a shot in the arm for the Congress as the BJP wanted the bill to be referred to a select committee. Opposition by NDA Yesterday, the government was forced to defer the controversial Patents (Amendment) Bill in Lok Sabha by a day in the face of strong opposition by the NDA. The heat is on Commerce and Industry Minister Kamal Nath who finds himself in the unenviable position of defending the Bill against both the opposition NDA, which incidentally drafted the original bill when it was in power, and against one the UPA allies, the RJD. Both the NDA and RJD want the bill to be sent to a Parliamentary committee. This could cause another delay, which the government cannot afford because the Patents Ordinance will expire on April 10. From anivar.aravind at gmail.com Tue Mar 22 16:17:53 2005 From: anivar.aravind at gmail.com (Anivar Aravind) Date: Tue, 22 Mar 2005 16:17:53 +0530 Subject: [Commons-Law] MEP to Indian MPs: TRIPs demands copyright, not patents for software Message-ID: <423FF7D9.6040605@gmail.com> 21 March 2005 -- David Hammerstein, Member of the European Parliament, sent a letter to the Indian Members of Parliament on the subject of the patentability of software, which is subject of a bill tabled in the Indian Parliament on 18 March by Minister for Commerce & Industry Shri Kamal Nath. ~anivar Hammerstein's Letter =================== To Mr. T.K. VISWANATHAN Secretary to Government of India, Mrs. Sonia Gandhi, Leader of the Indian National Congress, 10, Janpath, Dr. Manmohan Singh Prime Minister of India Shri Kamal Nath Minister for Commerce & Industry L K Advani Leader of Opposition David Hammerstein Member of the European Parliament Grupo Verde/ALE Subject: Software patents in the Parliaments of Europe and India Dear fellow MP, I am writing to you on the subject of software patents as Member of European Parliament. The European Parliament has opposed to make software patentable in September 2003, and in February 2005 the European Parliament by unanimous vote rejected a proposal by the Council of the European Union to request that. The debate is still open here, but speaking as a Parlamentarian I urge you to avoid any hasty and unwise steps in India. During our debate, the US trade representative (for example in a letter of 16 September 2003) has argued that Europe was bound to have software patents due to the TRIPS treaty. We have now reached the understanding that in the making of TRIPS there is no indication that computer programs were to seen as a field of technology in the sense of TRIPS. Hence we clarified in Article 2 of our directive: "(2) The use of natural forces to control physical effects beyond the digital representation of information belongs to a field of technology. The processing, handling, and presentation of information do not belong to a field of technology, even where technical devices are employed for such purposes". This is in accordance with art 52 (2)(c) of the European Patent Convention that states clearly that "schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers" shall not be regarded as inventions. Moreover, article 10 of the TRIPs treaty also clearly demands protection by copyright for computer programs; TRIPS does not mention patent protection for computer programs at any place. Given that the majority of software patent applications at the European Patent Office is from US and Japanese countries, having software patentable is clearly not in Europe's interest, and it is also likely also not to be in India's interest. I would recommend either * to amend the Indian law in the sense as outlined at http://wiki.ffii.org/InAmend0503En * or just to keep the acceptable present wording of the Patent Act's 2002 version "3 (k) a mathematical or business method or computer programme per se or algorithms" and to reject the ambiguous wording that has it had been issued by the Minister of Industry Kamal Nath in December 2004 ordinance "3 (k) a computer programme per se other than its technical application to industry or a combination with hardware; 3(ka) a mathematical method or business method or algorithms;" * or to improve the present wording of the Patent Act's 2002 version by simply deleting "per se" in "3(k) a mathematical or business method or computer programme per se or algorithms" With kind regards, David Hammerstein From srinivas at southcentre.org Tue Mar 22 16:43:39 2005 From: srinivas at southcentre.org (srinivas at southcentre.org) Date: Tue, 22 Mar 2005 12:13:39 +0100 Subject: [Commons-Law] yoga and copyright In-Reply-To: <20050322110007.73CC628D8E4@mail.sarai.net> Message-ID: I have read somewhere that SriSri Ravi Shankar, the founder of Art of Living course has got a copyright on Sudarshan Kriya, a breathing exercise. So what extent , movements in bharatha natyam, and Saroj Khan where are you, move fast and copyright your choreography so that you can charge desis in USA in dollars for licensing it. K.Ravi Srinivas Post Doctoral Fellow IPR Policy Research & Development Program South Centre 17-19 Chemin Du Champ d'Anier 1209 Petit Saconnex Geneva Switzerland Postal Address K.Ravi Srinivas South Centre CP 228 1211 Geneva 19 Switzerland Tel: +41 22 791 81 67 Fax: +41 22 798 85 31 email: srinivas at southcentre.org -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050322/75bf69e1/attachment.html From prabhuram at gmail.com Tue Mar 22 17:22:36 2005 From: prabhuram at gmail.com (Ram) Date: Tue, 22 Mar 2005 12:52:36 +0100 Subject: [Commons-Law] yoga and copyright In-Reply-To: References: <20050322110007.73CC628D8E4@mail.sarai.net> Message-ID: <68752c9f05032203522a9b24a0@mail.gmail.com> > I have read somewhere that SriSri Ravi Shankar, the founder of Art of Living > course has got a copyright on Sudarshan Kriya, a breathing exercise. According to Sri Sri Ravi Shankar, we patented Sudarshan Kriya "because someone else was going to patent it. We patented it so we could teach. Otherwise, it would have become a commercial commodity in the US long ago. People started copying it and we stepped in... [we started teaching it] free of cost in prisons, free of cost in many places." >From http://www.rediff.com/news/2004/jan/14inter.htm dollars for licensing it. > > K.Ravi Srinivas > Post Doctoral Fellow > IPR Policy Research & > Development Program > South Centre > 17-19 Chemin Du Champ d'Anier > 1209 Petit Saconnex > Geneva > Switzerland > > Postal Address > > K.Ravi Srinivas > South Centre > CP 228 > 1211 Geneva 19 > Switzerland > > Tel: +41 22 791 81 67 > Fax: +41 22 798 85 31 > > email: srinivas at southcentre.org > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > > > From skjha at iitb.ac.in Tue Mar 22 19:30:40 2005 From: skjha at iitb.ac.in (Shishir K Jha) Date: Tue, 22 Mar 2005 19:30:40 +0530 (IST) Subject: [Commons-Law] Re: 10 IPR Chairs In-Reply-To: <20050321193025.B1B0E28D918@mail.sarai.net> References: <20050321193025.B1B0E28D918@mail.sarai.net> Message-ID: <2299.10.127.133.110.1111500040.squirrel@gpo.iitb.ac.in> Hello Anuranjan, I am at IIT Bombay and a member of the institute IPR Cell. This is the first time I am hearing about the possibility of an IPR Chair at IIT Bombay. There is some potential for influencing who gets to chair this at IIT B. However I cannot say it with the same confidence about the other IITs or the IIMs. I really think it is very crucial to widen the focus of such initiatives, such that just the "protection" and "property incentivsation" part of IPR does not get taught. IIM A has Prof. Anil Gupta who is the only one I can think of as being sensitive to concerns of Public Domain side of the IP spectrum. Although even he is more into "protection" of grass roots innovation - which is genuine enough. I think the institution and capacity building regarding IPR issues at places of higher education really requires a lot more concerted effort. I would love to know from other members on this list about people they know at Indian universities or technical institutes who are atleast open to an engagement with a more inclusive view of IP. If we leave this completely to certain "forces" then we will really have lost an important Indian battle. rgds, Shishir K. Jha Asst. Professor S.J.M. School of Management IIT Bombay > Today's Topics: > 3. Article from HT (anu) > > ------------------------------ > > Message: 3 > Date: Mon, 21 Mar 2005 16:50:33 +0530 > From: anu > Subject: [Commons-Law] Article from HT > To: commons-law at sarai.net > Message-ID: <8a1161ed05032103201bc5c33c at mail.gmail.com> > Content-Type: text/plain; charset="iso-8859-1" > > Hi all, > This is an interesting article on the continuing tiff between UPA > govt. and BJP legislators over the pending patents bill and the need > to pass a fresh bill. It also contains news regarding govt's decision > to create 10 chairs for IP teaching in variuos higher education > institutions. I am extremely interested in knowing the details of the > course that will be taught here and if there is any contribution to > desigining the course that members of this list are involved in or are > interested in doing. The article was available in the print edition of > the HT which is now a paid section in HT site so I had to scan it, you > won't find it on the HT site. > Anuranjan > -------------- next part -------------- > A non-text attachment was scrubbed... > Name: BJP4freshPatentBill.pdf > Type: application/pdf > Size: 370774 bytes > Desc: not available > Url : > http://mail.sarai.net/pipermail/commons-law/attachments/20050321/fe401e62/BJP4freshPatentBill.pdf > > ------------------------------ From prabhuram at gmail.com Tue Mar 22 22:34:10 2005 From: prabhuram at gmail.com (Ram) Date: Tue, 22 Mar 2005 18:04:10 +0100 Subject: [Commons-Law] Lok Sabha passes patent bill In-Reply-To: <4240457B.9080209@cptech.org> References: <4240457B.9080209@cptech.org> Message-ID: <68752c9f05032209044d45ec6@mail.gmail.com> Lok Sabha passes patent bill March 22, 2005 By Surojit Gupta NEW DELHI (Reuters) - The Lok Sabha passed a patents bill on Tuesday making it illegal to copy patented drugs, a practice that has made cheaper medicines available in India and abroad. Lawmakers of the Congress party-led ruling alliance and their communist allies passed the bill with a voice vote, a key step to fulfilling India's WTO commitments. The bill, which will become law once it is approved by the Rajya Sabha, also covers other products such as chemicals, mobile phones and computers. The bill was approved after the government conceded demands from its communist allies and included some of the amendments suggested by them which included allowing export of pharmaceutical products to least developed countries. Earlier, the legislation had faced resistance from the ruling coalition's allies and opposition parties who were concerned about the availability of affordable drugs in India. The existing patent law has allowed drug makers to copy patented drugs as long as they use a different manufacturing process. It has fostered a strong drug manufacturing industry in India for more than three decades. The government argues, however, that patent recognition is an essential pre-condition for India's drug industry to further its own drug research and development or attract foreign partners. India is already the world's fourth-largest producer of medicines by volume but ranks only 13th by value, reflecting the very low prices of products in the local market. India issued a presidential decree on patent protection at the end of December but the change needs to be ratified by parliament within six months. Lawmakers from the Hindu nationalist Bharatiya Janata Party led opposition walked out of parliament before the legislation was approved. Health activists urged the government on Tuesday to review the patent bill which they said would make drugs unaffordable for millions suffering from AIDS. "Fifty percent of people with AIDS in the developing world depend on generic drugs from India," Ellen 't Hoen, director of policy advocacy and research at relief agency Medecins Sans Frontieres, or Doctors Without Borders, told a news conference. "The patent law will cut the lifeline to other countries. Besides, the Doha declaration also says that countries should design products so that they protect public health." Analysts lauded the passage of the patent amendment bill and said it would foster research and development activities in India by foreign companies. "This is one of the reforms which was pending for quite some time and this is a step in the right direction," said D.H. Pai Panandikar, president of the RPG foundation, a private economic think-tank. (Additional reporting by Kamil Zaheer) From paivakil at sancharnet.in Tue Mar 22 19:04:38 2005 From: paivakil at sancharnet.in (Mahesh T. Pai) Date: Tue, 22 Mar 2005 19:04:38 +0530 Subject: [Commons-Law] yoga and copyright In-Reply-To: References: <20050322110007.73CC628D8E4@mail.sarai.net> Message-ID: <20050322133438.GA7385@nandini.home> srinivas at southcentre.org said on Tue, Mar 22, 2005 at 12:13:39PM +0100,: > copyright on Sudarshan Kriya, a breathing exercise. So what extent (snip) > K.Ravi Srinivas > Post Doctoral Fellow > IPR Policy Research & > Development Program > South Centre I think you ought to know better. -- Mahesh T. Pai <<>> http://paivakil.port5.com Learn from the mistakes of others. You won't live long enough to make all of them yourself. From rai.shailesh at gmail.com Wed Mar 23 10:30:48 2005 From: rai.shailesh at gmail.com (S Rai) Date: Wed, 23 Mar 2005 10:30:48 +0530 Subject: [Commons-Law] yoga and copyright In-Reply-To: <20050322133438.GA7385@nandini.home> References: <20050322110007.73CC628D8E4@mail.sarai.net> <20050322133438.GA7385@nandini.home> Message-ID: <177e3ed005032221006a67b33b@mail.gmail.com> elsewhere ravi shankar has also said that the patent was granted in the U.S., but the U.S. patent office - http://www.uspto.gov, doesn't seem to have any record of this.. shailesh On Tue, 22 Mar 2005 19:04:38 +0530, Mahesh T. Pai wrote: > srinivas at southcentre.org said on Tue, Mar 22, 2005 at 12:13:39PM +0100,: > > > copyright on Sudarshan Kriya, a breathing exercise. So what extent > > (snip) > > > K.Ravi Srinivas > > Post Doctoral Fellow > > IPR Policy Research & > > Development Program > > South Centre > > I think you ought to know better. > > -- > Mahesh T. Pai <<>> http://paivakil.port5.com > Learn from the mistakes of others. > You won't live long enough to make all of them yourself. > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > From tahir.amin at btopenworld.com Wed Mar 23 16:35:08 2005 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Wed, 23 Mar 2005 11:05:08 +0000 (GMT) Subject: [Commons-Law] The Patent (Amendment) Bill Message-ID: <20050323110508.33972.qmail@web86104.mail.ukl.yahoo.com> Dear all, I am here in Delhi following and doing some advocacy and lobbying on the Patent Bill. There has been a frenzy of media coverage, some good, some bad. Along with the various groups here such as Lawyers Collective, Medecins sans Frontiere and those international activists who were in Bombay at the Global south hiv/aids meeting, we are still lobbying the left parties and BJP with respect to the amendments which were passed yesterday. Below is an initial summary of the amendments we have seen and have been analysing, some of which has not changed from when the Ordinance was tabled. The critique focusses on the effect on medicines and health and not issues such as software etc. It would be great if you could pass any comments you have to help us here to further the crtique the new amendments to the press here. As soon as we receive the full text, I will pass it on. Thanks A critical view of the Patents (Amendment) Bill 2005 and the potential impact Several amendments have been made to the Ordinance (the original Patent Bill 2005). However, many of these appear to fail to address the serious concerns of the issues relating to access to medicines. The following provides a critique of the key issues of the Bill which were voted on yesterday and the potential impact: Expansion of the Scope of Patentability: TRIPS does not define the basic criteria of patents viz. novelty, inventive step and industrial application. Further, the only obligation under TRIPS Agreement is to protect pharmaceutical products. As a result implementing countries have the option to limit the patent protection only to a new chemical entity. However, according to latest reports data shows that there are 8926 applications pending for examination in the mailbox. Out of these 2,906 applications have been made by U.S pharmaceutical entities. However, only 274 new chemical entities received marketing approvals from the US FDA between 1995-2003. This is a clear indication that many of the applications in the mailbox are subsequent patenting of non-chemical entities and, therefore, fall outside of the requirement of protection required for patents by TRIPS. The clauses in the Bill to limit the scope of patentability is extremely ambiguous and full of technical loopholes which allow for ‘evergreening’. Ideally the Bill should clearly limit patent protection to ‘new chemical entities’. Some of the key issues relating to the scope of patentability are given below. Inventive Step : The Bill provides the following definition of what is required of a patent application to meet the inventive step criteria: “a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both that makes the invention not obvious to a person skilled in the art”. The above provision arguably broadens the existing provision to the benefit of patent holders and is ambiguous to the extent that it allows for two criteria for meeting an inventive step. As it stands, to meet an inventive step criteria the patentee will either have to show that the invention includes a ‘technical advance’ or has economic significance, or both. The provision should require the applicant to show both requirements for an inventive step, namely “existing knowledge and having economic significance” and delete the term “or both. Otherwise, the requirement of technical advance is compromised and diluted by the fact that a patent could be simply granted on economic significance alone. Economic significance alone, cannot determine the inventive step of a patentable invention. Pharmaceutical substance: The amendment currently describes “Pharmaceutical substance” as “any new entity involving one or more inventive steps”. As it stands, the provision is too broad for the fact that it allows all types of pharmaceutical substances. The term “chemical” needs to be inserted so as to read “any new chemical entity”. Inventions not patentable: Section 3(d) has been amended to read: “the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least employs one new reactant”. The use of the phrases “which does not result in the enhancement of the known efficacy” is ambiguous, too broad and potentiallys allows for new forms of existing substances to become patented . For example, “result in enhancement of efficacy” could be a minor amendment to an existing invention to in order to get around the provision as it stands. Also, the explanation supporting the above provision provides: “Salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy”. The phrase “unless they differ significantly in properties with regard to efficacy” is not necessary as it creates ambiguity, potentially broadens the explanation in favour of the patentee, thus leading to excessive litigation. For example, certain properties are never known or are clear at the time of application in the claim so one would not know how they differ, thus leaving any recourse to opposition, which currently the amendment does not allow for. The definition of pharmaceutical substance is not linked to the provisions relation to the exclusion for patents and, therefore, stands alone. Furthermore, the inventive step requirement has been severely diluted. As a result, section 3(d) allows ‘evergreening’. Immunity to ongoing generic protection The Bill permits generic manufacturers to continue producing generic version of new drugs which are in the mailbox.. However, this only applies where the generic producer has made a significant investment provided they were producing and marketing the generic version prior to 1 January 2005. However, the generic companies are required to pay the patent holder a reasonable royalty. The question of “significant investment” poses a threat of potential infringement suits as the genric producer would have to clearly show that it has made what would be considered a significant investment in producing and marketing the generic drugs. With respect to the ‘reasonable royalty’ it creates the problem of excessive demands from the patent holder and litigation. The reasonable royalty rate should have been fixed at a particular percentage, the norm being 4%. For example in that in South Africa, Glaxo Smith Kline requested a royalty of 40 % before the courts intervened. Pre-grant Opposition: The amendment has restored the ability of the public to oppose patent applications before its grant.. The grounds for bringing a opposition remain as before and provide a recourse to challenging frivolous and legally invalid patents. However, the effectiveness of the opposition process depends upon the access to information on the applications. The Patent Office has already issued a notification in its official journal that inventions either filed or claiming priority on 30 July 2003 have been given the status of being published. However, no physical publication has been made available. This lack of notification takes away the possibility of accessing information relating to the patent application and the ability to oppose the same. Publication: The Bill amends Section 11A of the Patents Act which prescribes the initial publication requirement. After the publication the applicant shall have the rights as if patent for the invention had been granted on the date of publication of the application. However, no infringement proceeding is permissible until the grant of patent. This means that one can get the privilege of patent from the date of publication i.e. even before filing the request for the examination of application. Lastly the Bill refers to the publication of an application, but fails make the publication of the complete specification available to the public. This will hamper opposition proceedings. Compulsory Licences: The effective and efficient issuance of compulsory licences is imperative to curb the abuse of patent rights by the patentee. The amendment has only made cosmetic changes to quickening the process of dealing with an application for a compulsory licence in section 84(6) to the extent that where the applicant has made efforts to obtain a licence from the patentee on reasonable terms and conditions and such efforts have not been successful within a reasonable period, the Controller can now interpret ‘reasonable period’ to mean a period not ordinarily exceeding 6 months. However, the amendment does not remove the existing requirement that only after three years after the grant of a patent, (unless there is a national emergency, which has yet to have been used to date) can a person make an application to the Controller for the grant of a compulsory licence. Therefore, in total the request for a compulsory licence does not have to be considered for at least 3 years and 6 months from the date of the grant of the patent. Furthermore, one also has to take into the account that the Bill fails to provide a timeline within which the Controller must deal with compulsory licence application once made. Therefore, this could lead to a further delay before any licence can be issued as it is well known that MNC pharmaceuticals often refuse to deal with requests for compulsory licences or demand high royalties. With respect to exporting drugs to a country which makes a request for a generic drug, the amendment removes the requirement that the importing country to issue a compulsory licence. However, because of the restrictive rules on issuing a compulsory licence which India would have to go through first, this provision offers very little in the bigger picture to the developing countries which require urgent new drugs. Send instant messages to your online friends http://uk.messenger.yahoo.com -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050323/3b2e7f6a/attachment.html From lawrence at altlawforum.org Wed Mar 23 16:50:43 2005 From: lawrence at altlawforum.org (Lawrence Liang) Date: Wed, 23 Mar 2005 16:50:43 +0530 Subject: [Commons-Law] News on the amendment In-Reply-To: Message-ID: This is not confirmed as yet, but it sounds good lawrence ------ Forwarded Message From: prabir Date: Wed, 23 Mar 2005 16:22:11 +0530 To: Ramanraj K , Anand Babu Cc: Subject: RE: [Fsf-friends] software patents are out Friends, I have the Patent Amendments in front of me and to my limited legal understanding the section 3 k and ka where the original ordinance had introduced software patenting for industrial applications or for use in conjunction with hardware has been taken out. It then reverts back to the original formulation of the 2002 Act. It is true that we missed an opprotunity to modify the Act to our advantage. Partly because we got to know about it much later and therefore were not prepared to use this window effectively. We tagged along then with what had already been moved as amendment and did not formulate ours in the belief that it might confuse matters further. The idea of going to WTO against the US is hare-brained. Countries only can go to Disputes Settlement. And the TRIPS has enough loopholes to permit individual countries to put in patent regimes that are are quite restrictive. In any case, Indian Government will not go against the US, when they themselves are interested in patenting software. The fact they have backed off is just a poltical conjuncture, and not a change in belief. Fighting patents in India is something we need to do. And we need volunteers for this puspose. We need to challenge the patents on software to the patent office and also put poltical pressure on the Government to take this up with the patent office. I do belive that the patents will not hold up in court, but would not go to court myself. Much prefer the other side to take us to court. That should be our strategy. Otherwise, one judgement and we would have enshrined patentability into case law and made it our bane for life. Prabir -----Original Message----- From: in-parl-bounces at ffii.org [mailto:in-parl-bounces at ffii.org]On Behalf Of Ramanraj K Sent: Wednesday, March 23, 2005 1:51 PM To: Anand Babu Cc: in-parl at ffii.org Subject: Re: [Fsf-friends] Yet another shameless day in India Anand Babu wrote: >,----[ Richard Stallman ] >| These reports are good news, but they don't mean we have won. If >| the old patent law is allowing software patents in, keeping it >| unchanged won't keep them out. >| >| We have to do something more. But we have lost the chance to try to >| use this patent bill to do it. Ramanraj thinks these patents are >| invalid and that the law is being misapplied. Is there a way to >| convince the patent office of that? Should we go to court and see? >| Or should we hope that doubts about validity restrain the patent >| holders from using their patents against Indian software developers >| and users? >`---- > >One way I know is by deliberately writing free software code to >violate these patents - "civil disobedience". If there are legal >implications, I will naturally end up in the court. This will help us >gather enough attention and support to launch a nation wide protest >against software patents. I won't give up till these patents are >invalidated. I will try this approach as a last resort. > You might have to try that in the US. We *should* discuss if India could challenge the US at the WTO on the question of its granting software patents. Meanwhile, while we are still awaiting publication of the contents of the Patents (Amendments) Bill passed yesterday, it should be worthwile to read the following post I had just sent to fsf-friends: Certainly, many reports were far from accurate going against the debates reported at: http://164.100.24.208/today/tdailydeb.htm It may be a spectacular success after all! Not only, that, it *might* include an *important* amendment touching upon computer programs, that we should wait to hear from authoritative sources. Meanwhile, a little food for thought: I just had the chance to read the following document published at http://cpim.org/upa/2004_patents.pdf Left Parties on Amendments to the Indian Patent Act Dec 20, 2004 The Group of Ministers had made available to us the draft Patent (Third) Amendment Bill for our consideration and suggestions. We were told about the predicament faced by the Government: The Patents Act 1970 had already been substantially altered and diluted by the two amendment bills enacted by the previous NDA government. There was also the so-called deadline of TRIPs to be observed. And hence the need to push through the Third amendment bill as proposed. Either the reasoning or the conclusions of the Government did not convince us. Nevertheless, we tried to understand the compulsions of the Government and limit our suggestions to the absolute minimum that is needed to be done to safeguard the national interest... Draft Patents Bill 2003 ======================= Clause 3(k) and (ka) (k) a computer programme per se other than its technical application to industry or a combination with hardware; (ka) a mathematical method or a business method or algorithms; Amendment Suggested =================== Clause 3(k) (k) a mathematical method or a business method or a computer programme per se or algorithms; Clause (ka) be deleted Comments of Department of Industrial Policy & Promotion ======================================================= This issue has been discussed by the JPC during the 2nd Amendment to the Patents Act. The proposed changes are more in the nature of a classification, due to confusing interpretations that have arisen. Section 3 of the Act contains details of items which are not inventions within the meaning of the Act and hence, are not patentable. This section also provides, inter alia, that "a mathematical or computer programmes per se or algorithms" are not patentable. However, this provision has been subject to confusing interpretations, (such as whether 'per se' applies only to computers programme, or also to mathematical or business methods. Also, whether technical applications of computer programmes are patentable or not). Given the emerging opportunities in the software sector and growing Indian strength in information technology, it is necessary to clarify the provisions in Section 3 (k) so as to allow patenting of a computer programme only in case it has technical applicatioos in combination with hardware. Software alone is already protected under copyright laws. It is also proposed to clarify that a mathematical or business method or algorithm will not be patentable. The Department of Information Technology has suggested the incorporation of such a clarification which is now proposed to be included. The GoM has considered this issue and noted that the proposed clarification is in the larger national interest. Reply to Comments by Deptt. of Industrial Policy and promotion ============================================================== Draft Bill reduces the scope of what is not patentable in the area of computer programmes. This is not in the interest of the software industry in India. To the contray, it could promote the interests of monopolies like Microsoft. If the qualification per se is creating confusion, the same may be deleted from the original Clause 3 (k) of the present Act, without any other Amendments. I came to know about the above, just this morning from the cpim.org website. On 21st, the very same amendment was independently suggested for another reason: The best justification for the amendment sought is this: "Under the TRIPS agreement, "computer programs" shall be protected by copyrights. In this context "per se" is a meaningless qualification, and the amendment would make our law fully TRIPS compliant." The fact that US issues patents for software merely means that the US is violating TRIPS and India should complain to the WTO against the practice, claiming heavy damages for the violation. If India succeeds with this amendment, our friends in Europe would be too happy to follow suit. It would put considerable pressure on US to modify their law." If Section 3(k) reads "a mathematical or business method or computer program or algorithms", it should be a very, very important success, far beyond having the proposed changes alone dropped. We have now fulfilled all our so called "International Obligations" India *should* complain to the WTO against the US practice of "software patents" that are a serious trade barrier in US. Meanwhile, we should prepare a letter thanking all the people who have made this possible. _______________________________________________ In-parl maillist Subscribe through the project system http://www.ffii.org/assoc/knecht/proj/, fine-tune via http://lists.ffii.org/mailman/listinfo/in-parl http://lists.ffii.org/mailman/listinfo/in-parl -- No virus found in this incoming message. Checked by AVG Anti-Virus. Version: 7.0.308 / Virus Database: 266.8.0 - Release Date: 3/21/2005 _______________________________________________ In-parl maillist Subscribe through the project system http://www.ffii.org/assoc/knecht/proj/, fine-tune via http://lists.ffii.org/mailman/listinfo/in-parl http://lists.ffii.org/mailman/listinfo/in-parl ------ End of Forwarded Message From prabhuram at gmail.com Wed Mar 23 21:06:21 2005 From: prabhuram at gmail.com (Ram) Date: Wed, 23 Mar 2005 16:36:21 +0100 Subject: [Commons-Law] Important changes incorporated in the Patents (Amendment) Bill, 2005 In-Reply-To: <68752c9f05032307352d1033a0@mail.gmail.com> References: <68752c9f05032307352d1033a0@mail.gmail.com> Message-ID: <68752c9f05032307361f79d869@mail.gmail.com> >Press Information Bureau, Government of India Important changes incorporated in the Patents (Amendment) Bill, 2005 as compared to the Patents (Amendment), 2003 (The Bill was moved by Shri Kamal Nath, Minister of Commerce & Industry, in the Lok Sabha on 22/3/05 and in Rajya Sabha on 23/3/05) The following two suggestions have already been incorporated in the Patents (Amendment) Ordinance, 2004 based on the suggestions received: 1. A provision was incorporated in the Ordinance (this was not there in the draft bill introduced in December 2003) to ensure that protection based on patents granted to mailbox applications would be effective only prospectively from the date of grant of patent, and not retrospectively from date of application. Thus no Indian company would be open to infringement proceedings with retrospective effect. [This was incorporated as 2nd Proviso to Section 11A (7)] This also ensures that though protection would be available prospectively, the life of patent (20 years) would be computed from the date of application, thus reducing the effective life of the patent. (The sooner a drug goes off-patent, the sooner other companies are free to manufacture it). 2. The 2nd amendment had made a provision under Section 107A (b) providing for 'parallel import' (that is, import of patented commodity from anywhere in the world where it is cheaper, even though it is patented here). However, this required that the foreign exporter was duly authorised by the patentee to sell and distribute the product. In the Ordinance this has been amended to say that the foreign exporter need only be 'duly authorised under the law', thus making parallel imports easier. A parallel import is a mechanism that helps in price control. Further, following suggestions have been also incorporated in the proposed changes to the Patents (Amendment) Ordinance, 2004 Scope of patentability: 3. In order to restrict the scope of patentability it is proposed to modify Section 2 – Definitions as follows: · Section 2 (ja) "Inventive step" means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art; · New definition "New invention" means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art. · New definition "Pharmaceutical Substances" means any new entity involving one or more inventive steps. 4. In order to further incorporate the intention of restricting the scope of patentability particularly for pharmaceutical inventions, the following is proposed in Section 3: (Section 3 lists out the exceptions to patentability, i.e., what are not considered to be inventions) Section 3 (d): the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant. Explanation to Section 3 (d): "Salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations, and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy. 5. The word "mere" introduced by the Ordinance before the words "new use" in Section 3 (d) is also proposed to be now deleted. This will remove any doubt suggesting that the scope of patentability is being enlarged by narrowing the exceptions to inventions. 6. It is proposed to omit the clarification relating to patenting of software related inventions introduced by the Ordinance as Section 3(k) and 3 (ka). The clarification was objected to on the ground that this may give rise to monopoly of multinationals. Strengthening of Pre-grant Opposition: 7. Opposition to grant of patent: The proposed new Chapter heading concerning opposition, namely, "Representation and Opposition Proceedings" is proposed to be substituted with the heading, namely, "Opposition Proceedings to Grant of Patent". This will allay the fear that opposition proceedings are being 'diluted'. 8. Hearing at pre-grant opposition stage: A provision for hearing at pre-grant opposition stage has been made in the rules. This is proposed to be introduced upfront in the law itself, as it would provide a higher comfort level, as follows: "25 (1) Where an application for a patent has been published but a patent has not been granted, any person may, in writing, represent by way of opposition to the Controller against the grant of patent within the prescribed period on the grounds of (a) .. …….. (b) .. …….. and the Controller shall if requested by such person for being heard, hear him and dispose of the representation in such manner and within such period as may be prescribed. 9. Extension of time for filing pre-grant opposition: It is proposed to provide a minimum period of 6 months, from the date of publication, for making representation as against the present period of 3 months. This will ensure that the opponents get sufficient time to file the objections. (Since all time-lines have been provided in the subordinate legislation, this will also be done in the rules). 10. Expanding the grounds for pre-grant opposition: The grounds of pre-grant opposition based on the Ordinance were on the grounds of novelty, inventive step and industrial applicability, non-disclosure or wrongful mentioning of source and geographical origin of biological material and anticipation of invention by knowledge, oral or otherwise, available in public domain. Though these are substantive grounds of opposition, it has been proposed that the grounds be listed in the same way as in the Act before the Ordinance. Accordingly, in the pre-grant opposition also all the eleven grounds (formal as well as technical) are being specifically mentioned in order remove any doubt that grounds of pre-grant opposition were being reduced or constricted in any way. 11. Deletion of Section 25(2): Section 25 (2) introduced by the Ordinance denies the person making an opposition representation the right of becoming a party to any proceedings under the Act, and is viewed as restricting the scope of opposition. Therefore, in order to strengthen the pre-grant opposition, sub-section 2 of Section 25 is proposed to be deleted. 12. Facilitation of pharmaceutical exports to LDCs: The new provision (Section 92A) relates to compulsory licence for export of patented pharmaceutical products (provided for in Para 6 of Doha Declaration), to such countries as have inadequate production capacities. Here the condition of obtaining compulsory licence is proposed to be expanded, (in case of LDCs having no Patent Law or provision for compulsory licence) to include an 'authorisation' or notification from such a country. This is proposed to be done by modifying sub-section (1) of section 92A as follows: Adding the following words after the words "provided compulsory licence has been granted by such country": "or such country has by notification or otherwise allowed importation of the patented pharmaceutical products from India." 13. Transitional arrangement applications: It has been suggested that a provision be made in the law so that the companies which are manufacturing the products for which applications are in the mailbox should be able to continue production of the said products on payment of nominal royalty. The suggestion is proposed to be accepted with the modification that instead of the word 'nominal' royalty the word 'reasonable' royalty be used, as use of the word 'nominal' would be clearly violative of the TRIPS. A 3rd new proviso is proposed to be added under Section 11 A (7) as follows: "Provided also that after a patent is granted in respect of applications made under sub-section (2) of section 5, the patent holder shall only be entitled to receive reasonable royalty from such enterprises which have made significant investment and were producing and marketing the concerned product prior to 1.1.2005 and which continue to manufacture the product covered by the patent on the date of grant of the patent, and no infringement proceedings shall be instituted against such enterprises." 14. Quantifying 'reasonable period' in relation to compulsory licensing: The present Act already contains provisions under Section 84 (7) (a) (iv) whereby a compulsory licence could be requested on the ground that "the establishment or development of commercial activities in India is prejudiced". Similarly, Section 84 (6) (iv) provides that in considering an application for compulsory licence the Controller of Patents is required to take into account "as to whether the applicant has made efforts to obtain a licence from the patentee on reasonable terms and conditions and such efforts have not been successful within a reasonable period as the Controller may deem fit". It is proposed to incorporate an explanation to the existing Section 84 (6) (iv) for quantifying the 'reasonable period' referred to above, as under: "Explanation: - The reasonable time period under this clause shall not ordinarily exceed six months". 15. Amendment to Section 90 relating to compulsory licence: Section 90 (1) (vii) and (viii) has been redrafted in the Ordinance. A further modification is being proposed to clarify that even when compulsory licence is granted for pre-dominant purpose of supply in Indian market, the licensee may export the patented product, if need be; Similar facility of export is also permitted when licence is granted to remedy a practice determined after judicial or administrative process to be anti-competitive. It is proposed to modify sub-Section (vii) and (viii) of Section 90 (1), and introduce a new sub-section (ix) as follows: (vii) that the license is granted with a predominant purpose of supply in the Indian market and that the licensee may also export the patented product, if need be in accordance with Section 84 (7) (a) (iii); (viii) that in the case of semi-conductor technology, the license granted is to work the invention for public non-commercial use; (ix) that in case the license is granted to remedy a practice determined after judicial or administrative process to be anti-competitive, the licensee shall be permitted to export the patented product, if need be. http://pib.nic.in/release/release.asp?relid=8096 ****** SB/MRS From mrinalinikpillai at gmail.com Wed Mar 23 21:53:38 2005 From: mrinalinikpillai at gmail.com (Mrinalini Kochupillai) Date: Wed, 23 Mar 2005 21:53:38 +0530 Subject: [Commons-Law] Lok Sabha approves patents bill Message-ID: Lok Sabha approves patents bill Tue March 22, 2005 9:59 PM GMT+05:30 By Surojit Gupta NEW DELHI (Reuters) - The Lok Sabha passed a patents bill on Tuesday making it illegal to copy patented drugs, a practice that has made cheaper medicines available in India and abroad. Lawmakers of the Congress party-led ruling alliance and their communist allies passed the bill with a voice vote, a key step to fulfilling India's WTO commitments. The bill, which will become law once it is approved by the Rajya Sabha, also covers other products such as chemicals, mobile phones and computers. The bill was approved after the government conceded demands from its communist allies and included some of the amendments suggested by them which included allowing export of pharmaceutical products to least developed countries. Earlier, the legislation had faced resistance from the ruling coalition's allies and opposition parties who were concerned about the availability of affordable drugs in India. The existing patent law has allowed drug makers to copy patented drugs as long as they use a different manufacturing process. It has fostered a strong drug manufacturing industry in India for more than three decades. The government argues, however, that patent recognition is an essential pre-condition for India's drug industry to further its own drug research and development or attract foreign partners. India is already the world's fourth-largest producer of medicines by volume but ranks only 13th by value, reflecting the very low prices of products in the local market. India issued a presidential decree on patent protection at the end of December but the change needs to be ratified by parliament within six months. Lawmakers from the Hindu nationalist Bharatiya Janata Party led opposition walked out of parliament before the legislation was approved. Health activists urged the government on Tuesday to review the patent bill which they said would make drugs unaffordable for millions suffering from AIDS. "Fifty percent of people with AIDS in the developing world depend on generic drugs from India," Ellen 't Hoen, director of policy advocacy and research at relief agency Medecins Sans Frontieres, or Doctors Without Borders, told a news conference. "The patent law will cut the lifeline to other countries. Besides, the Doha declaration also says that countries should design products so that they protect public health." Analysts lauded the passage of the patent amendment bill and said it would foster research and development activities in India by foreign companies. "This is one of the reforms which was pending for quite some time and this is a step in the right direction," said D.H. Pai Panandikar, president of the RPG foundation, a private economic think-tank. From prabhuram at gmail.com Wed Mar 23 21:56:05 2005 From: prabhuram at gmail.com (Ram) Date: Wed, 23 Mar 2005 17:26:05 +0100 Subject: [Commons-Law] Lok Sabha approves patents bill In-Reply-To: References: Message-ID: <68752c9f050323082660ea86a3@mail.gmail.com> Dear Mrinalini and all, The Rajya Sabha has also approved the Patents Bill today- Ram Parliament approves Patents Bill Wednesday, 23 March , 2005, 20:18 New Delhi: The Parliament on Wednesday approved the crucial Patents (Amendment) Bill to introduce product patent in drugs and agri products after Rajya Sabha passed the legislation amidst walkout by BJP-led NDA. The House negatived the resolution to disapprove the Patents (Amendment) Ordinance, 2004 and the amendments moved by BJP member Yashwant Sinha. Commerce and Industry Minister Kamal Nath, in his reply to the debate, assured the House that prices of medicines would not go up as a result of introduction of product patents. He said as per estimates of the drug controller, out of 195 drugs, 185 were pre-1995 drugs and were out of the gambit of the patent regime. Nath said even the rest would not be moved for patents immediately and it would take at least three years to get these patented after procedures are completed. Opposition leader Jaswant Singh said the government has not satisfactorily replied to points raised by them through amendments and led the NDA boycott. On Wed, 23 Mar 2005 21:53:38 +0530, Mrinalini Kochupillai wrote: > Lok Sabha approves patents bill > Tue March 22, 2005 9:59 PM GMT+05:30 > > By Surojit Gupta > > NEW DELHI (Reuters) - The Lok Sabha passed a patents bill on Tuesday > making it illegal to copy patented drugs, a practice that has made > cheaper medicines available in India and abroad. > > Lawmakers of the Congress party-led ruling alliance and their > communist allies passed the bill with a voice vote, a key step to > fulfilling India's WTO commitments. > > The bill, which will become law once it is approved by the Rajya > Sabha, also covers other products such as chemicals, mobile phones and > computers. > > The bill was approved after the government conceded demands from its > communist allies and included some of the amendments suggested by them > which included allowing export of pharmaceutical products to least > developed countries. > > Earlier, the legislation had faced resistance from the ruling > coalition's allies and opposition parties who were concerned about the > availability of affordable drugs in India. > > The existing patent law has allowed drug makers to copy patented drugs > as long as they use a different manufacturing process. It has fostered > a strong drug manufacturing industry in India for more than three > decades. > > The government argues, however, that patent recognition is an > essential pre-condition for India's drug industry to further its own > drug research and development or attract foreign partners. > > India is already the world's fourth-largest producer of medicines by > volume but ranks only 13th by value, reflecting the very low prices of > products in the local market. > > India issued a presidential decree on patent protection at the end of > December but the change needs to be ratified by parliament within six > months. > > Lawmakers from the Hindu nationalist Bharatiya Janata Party led > opposition walked out of parliament before the legislation was > approved. > > Health activists urged the government on Tuesday to review the patent > bill which they said would make drugs unaffordable for millions > suffering from AIDS. > > "Fifty percent of people with AIDS in the developing world depend on > generic drugs from India," Ellen 't Hoen, director of policy advocacy > and research at relief agency Medecins Sans Frontieres, or Doctors > Without Borders, told a news conference. > > "The patent law will cut the lifeline to other countries. Besides, the > Doha declaration also says that countries should design products so > that they protect public health." > > Analysts lauded the passage of the patent amendment bill and said it > would foster research and development activities in India by foreign > companies. > > "This is one of the reforms which was pending for quite some time and > this is a step in the right direction," said D.H. Pai Panandikar, > president of the RPG foundation, a private economic think-tank. > _______________________________________________ > commons-law mailing list > commons-law at sarai.net > https://mail.sarai.net/mailman/listinfo/commons-law > From geetanjali_srikantan at yahoo.co.in Thu Mar 24 11:25:15 2005 From: geetanjali_srikantan at yahoo.co.in (geetanjali_srikantan at yahoo.co.in) Date: Thu, 24 Mar 2005 00:55:15 -0500 Subject: [Commons-Law] NYTimes.com: India Alters Law on Drug Patents Message-ID: <20050324055455.8509F28D705@mail.sarai.net> This page was sent to you by: geetanjali_srikantan at yahoo.co.in. INTERNATIONAL / ASIA PACIFIC | March 24, 2005 India Alters Law on Drug Patents By DONALD G. McNEIL Jr. India, a major source of inexpensive AIDS drugs, passed a new law that activists fear will choke off their supply to poor countries. http://www.nytimes.com/2005/03/24/international/asia/24aids.html?ex=1112331600&en=77575f957d7f6327&ei=5070 ----------------- Advertisement -------------------------- /--------- E-mail Sponsored by Fox Searchlight Pictures ------------\ MILLIONS: FROM THE IMAGINATION OF DIRECTOR DANNY BOYLE Danny Boyle once again reinvents the cinematic experience with a heartwarming story of two little boys, faith, miracles... and lots of money. When a suitcase full of money falls out of the sky, it sets the boys on the adventure of a lifetime that leads them to realize that true wealth has nothing to do with money. MILLIONS is now playing in select theaters. Watch the trailer at: http://www.foxsearchlight.com/millions/index_nyt.html ----------------- Advertisement -------------------------- 0 ---------------------------------------------------------- ABOUT THIS E-MAIL This e-mail was sent to you by a friend through NYTimes.com's E-mail This Article service. For general information about NYTimes.com, write to help at nytimes.com. NYTimes.com 500 Seventh Avenue New York, NY 10018 Copyright 2005 The New York Times Company -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050324/419ef8ce/attachment.html From aarti at sarai.net Thu Mar 24 12:41:16 2005 From: aarti at sarai.net (Aarti) Date: Thu, 24 Mar 2005 12:41:16 +0530 Subject: [Commons-Law] char soh bees Message-ID: <42426814.4070705@sarai.net> Dear All, For a little while I have been thinking about some things that I want to share with you, with which I need some help. They are very unformed right now, just nascent initial thoughts, not quite coherent, but nonetheless. Through conversation with comrades here, maybe they will get clarified and more fleshed out. I am basically curious about how the law circulates, and the forms in which it circulates. By this I mean..how do we know the law in everyday life? For instance, if you happen to be a filmmaker and need to shoot in a particular area, you know you will have to get permissions from the DCPs of various police stations because many areas, Central Delhi for instance are under this Act (the exact act i forget now) which makes shooting etc without permission illegal. Likewise in the course of doing the things we do we interact with the letter of the law in various ways, and the law filters down to us. What we know of the law is not always the 'Law' i.e we have a sense of what it is we can and cannot do, though we may not always be in the know of the specific legal injunction that allows or prohibits the doing of certain things. Also, how does the language of the law enter our language. For instance 'char soh bees' (420) is a common phrase to describe a no-good character, but it is also section 420 of the IPC which relates to dishonesty, cheating, petty fraud etc. what are other similar phrases in common usage which speak of the law? I was wondering if anyone might be able to help me with this. I right now cant think of any other phrase except char so bees, but I'm sure there must be others. Any thoughts, and help would be greatly appreciated. Thanks best Aarti From songcraft at yahoo.com Thu Mar 24 16:55:15 2005 From: songcraft at yahoo.com (Anthony McCann) Date: Thu, 24 Mar 2005 03:25:15 -0800 (PST) Subject: [Commons-Law] Law and power In-Reply-To: 6667 Message-ID: <20050324112515.84977.qmail@web41314.mail.yahoo.com> Aarti wrote: My first thought is that I don't find it helpful to think that the law circulates. For me, that metaphor does nothing to challenge a positive, reified, naturalized existence for "the law", further facilitating legal closure, rather that facilitating analysis of what for me are perhaps more helpfully considered as social and political dynamics. (I draw a lot on Foucault in what I do, but I remain unhappy with his metaphor concerning the "circulation of power"). I'm more interested in what concepts of "law" mean in specific circumstances for specific people, what the consequences of those particular understandings might be, and how those consequences might be similar to the social dynamics in other situations where similar understandings dominate. For me, in and through our encounter with (discursive) declarative claims to authority-that-shall-not-be-questioned (which claims may be our own), in and through (often institutionalised) social interaction and social practice. Therefore whatever we might unstand by "the law" doesn't include us? How might we be participating the dynamics that we seek to understand, or critique? It depends, I would imagine, but in light of the claims to authority-that-shall-not-be-questioned there are various contexts of acquiescence, resistance-then-acquiescence, co-optation, "legitimation", etc. etc. that contribute to our participation in the various "languages of law". My own research suggests that there are certain characters of dispositional inclination that leave people more likely to go along with (or perhaps directly oppose) "legal" claims to authority-TSNBQ, dispositions where we consistently assert to ourselves and/or others (in various ways) that uncertainty can be or should be eliminated. "Legal language" for me is both symptomatic *and constitutive* of such dispositional inclinations, (fostering and facilitating doctrinal, expansionary dynamics, from a social/political perspective). Crucial in the identification of these claims to "unquestionable" authority are situations of resistance and conflict, where people go, "hey, hold on, I don't think that's right". Tim Cresswell has an article in the book Entanglements of Power on the use of resistance as a diagnostic tool (cultural geographer), drawing on the work of (anthropologist) Lila Abu-Lughod. For me, resistance to such claims provides us with the challenge of the unsettling moment, where we can check ourselves to see if our attitude in response to the claims is with counter-claims of a similar character (offerings to the altar of hegemony, for me, often leaving us blind to the consequences of our participation, despite our best intentions) or is of a more subtle and analytically, attitudinally gentle character (which can indeed be strategic, but considerably more circumspect than unthinking activistic direct action) (not all direct action would be necessarily unthinking, IMO, but it is often the case). (The structuring of expectations implied by the expansion/extension of legal language/thinking in social interaction is addressed to some degree in my dissertation at www.beyondthecommons.org, particularly Ch. 6, (following the 'understanding enclosure' link) but is dealt with in clearer terms in the work that I am doing at the moment, but which is unpublished as of yet, sorry) If you do a search for "Coombe" or "Cover" or "Cotterrell" in my disseration files (PDF and DOC), you will find many quotations about the social impact of legal understandings and legal narratives. All the best, Anthony -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050324/27dd6077/attachment.html From prabhuram at gmail.com Thu Mar 24 17:49:06 2005 From: prabhuram at gmail.com (Ram) Date: Thu, 24 Mar 2005 13:19:06 +0100 Subject: [Commons-Law] India's Crackdown on Fakes Message-ID: <68752c9f0503240419daf85b0@mail.gmail.com> >Wall Street Journal India's Crackdown on Fakes March 24, 2005 To hear NGOs and the BBC tell it, by finally passing a law that bars domestic companies from copying patented drugs, India's heartless parliament will make it impossible for medications to reach the needy. Of course, it's the complete reverse. India's government deserves praise for standing up to the likes of Oxfam and Medecins Sans Frontieres (MSF) and passing a law that will allow it to be a respected partner in drug development. What India has done is simply ensure that the market capitalism that has made the Western nations and Japan prosperous, with corresponding improvements in public health and welfare, can function better in India. It can only thrive when property, intellectual or otherwise, is protected by law. Without such protections, the Indian pharmaceutical industry will continue to operate in a sort of legal limbo, where the safety of efficacy of its products are uncertain. So by approving patent legislation that will finally put a stop to decades of simply copying someone else's pharmaceutical breakthroughs, the Lok Sabha on Tuesday brought India into line with the advanced world. It was yet another step in bringing India out of its years of economic isolation, which has only induced lethargy and dire poverty. The bill is expected to become law later this week. The Congress Party at the heart of the 12-party governing coalition deserves praise for steering the legislation through the shoals of anti-capitalism. In the end, it did accept amendments demanded by communists who support the government while remaining outside the coalition. But such is the price of any action in India these days. The amendments apply to the definition of what constitutes a "new" drug, preventing companies to tinker with existing drugs in order to gain new patents. The amendments throw unnecessary sand in the gears, but don't completely render the new legislation toothless. Despite the efforts to weaken the law, Julian Morris, the director of the International Policy Network, a London-based think tank, told us that, "This legislation represents movement in the right direction." You wouldn't think so from the attacks India was subjected to in the past few days. In a letter to Congress Party leader Sonia Gandhi, MSF said: "We are deeply disturbed and concerned that you are failing to listen to the voices of your people who have entrusted you with their welfare." Oxfam claimed that "this law will have a severe knock-on effect on many developing countries." While these organizations obviously don't see it that way, what they are advocating is legalized theft. Much of the criticism right now is being targeted at the World Trade Organization, which demanded that India pass the patent law. India joined the WTO in 1994, but it wasn't until India started to subscribe to the Trade Related Intellectual Property Rights (TRIPS) agreement on Jan. 1, that it needed a law to comply. But the need to protect the intellectual property of India's growing pharmaceutical industry, now worth $5 billion a year, also acted as an incentive. The new law will attract new foreign investment and even more outsourcing to India. And perhaps the next breakthrough in medicine will come from India rather than being merely copied there. From tahir.amin at btopenworld.com Wed Mar 23 23:18:48 2005 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Wed, 23 Mar 2005 17:48:48 +0000 (GMT) Subject: [Commons-Law] A critique of the Patent (Amendment) Act 2005 Message-ID: <20050323174848.42073.qmail@web86111.mail.ukl.yahoo.com> Dear all, Attached is a critique of the new Act which was passed today. Cheers Tahir Send instant messages to your online friends http://uk.messenger.yahoo.com -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050323/eac1c228/attachment.html -------------- next part -------------- A non-text attachment was scrubbed... Name: Patents Amendment critique 23-3-2005.doc Type: application/msword Size: 50176 bytes Desc: not available Url : http://mail.sarai.net/pipermail/commons-law/attachments/20050323/eac1c228/attachment.doc From manu_shahalia at hotmail.com Fri Mar 25 09:41:42 2005 From: manu_shahalia at hotmail.com (MANU LUV SHAHALIA) Date: Fri, 25 Mar 2005 09:41:42 +0530 Subject: [Commons-Law] DPCO update In-Reply-To: Message-ID: An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050325/02e9ec62/attachment.html From clifton at altlawforum.org Fri Mar 25 08:16:43 2005 From: clifton at altlawforum.org (Clifton) Date: Fri, 25 Mar 2005 11:46:43 +0900 Subject: [Commons-Law] Short film on discrimination and exclusion in tsunami relief an rehabilitation Message-ID: <42437B93.1040105@altlawforum.org> Hi, A group of us have been actively involved in the relief and rehabilitation processes in the tsunami affected villages of TN and Pondicherry. While the mainstream media has been covering the sucess of the relief efforts, there are several issues that are being suppressed and need to be brought to the notice of the general public. These include issues of exclusion in the relief process and discrimnation of dalits. While we tried to write articles/notes/observations and get them published this more or less failed. As a result we have made a short documentary film that documents the losses and struggle of those thousands of people who have been severly affected by the tsunami yet have received little or no relief. Further, there is no plan to rehabilitate them as is being done for the fisherpeople. This short film is called ¨Outside Mercy¨ and is about 30 minutes long. If you would like copies please do ask us. The film is a non-funded one and as such we have incurred lot of out-of-pocket expenses and would appreciate contributions for the film. The VCD and DVD are nominally priced at Rs. 100 and Rs. 300 respectively but would appreciate it if anyone wants to contribute further. There are Tamil and English versions of the film. Warm regards Revathi, Deepu and Clifton. Contact: Revathi - r_revs at yahoo.com / 09444030032 Deepu - pedepics at yahoo.com / 09448367627 Clifton - clifton at altlawforum.org / 09880063583 From jeebesh at sarai.net Sat Mar 26 02:50:26 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Sat, 26 Mar 2005 02:50:26 +0530 Subject: [Commons-Law] "orphan" works Message-ID: <4244809A.6050908@sarai.net> Thought this might be of passing interest: Hope you are well, Best, J ____ The Copyright Office has been holding hearings on access to "orphan" works. These aren't movies about kids who have lost their parents -- Little Orphan Annie, say. They are works which are still under copyright but have no copyright holder (or no locatable copyright holder.) Sounds esoteric and boring? It isn't "Orphan Works" probably comprise the /majority of the record of 20th century culture / and their orphan status means we have practically no access to them. In all likelihood no copyright owner would appear to object if one digitized an old book, restored an orphan film, or used an obscure musical score. But who can afford to take the risk? The normal response of archivists, libraries, film restorers, and artists is generally to give up -- it is just not worth the hassle and risk. The result..? needlessly disintegrating films, prohibitive costs for libraries, incomplete and spotted histories, thwarted scholarship, digital libraries put on hold, delays to publication. And all of this waste is entirely unnecessary. Solution? Duke's Center for the Study for the Public Domain has produced a report to the Copyright Office that offers one. http://www.law.duke.edu/cspd/orphanworks.html They interviewed artists and librarians and filmmakers about their problems and they offer a proposal on how to fix the system. _____________________________ James Boyle William Neal Reynolds Professor of Law Duke University Law School Science Drive & Towerview Box 90360 Durham, NC 27708-0360 919 613-7287 ph. Home Page & Essays http://james-boyle.com From shekhar at crit.org.in Sat Mar 26 03:04:18 2005 From: shekhar at crit.org.in (Shekhar Krishnan) Date: Sat, 26 Mar 2005 03:04:18 +0530 Subject: [Commons-Law] Mumbai Map Archive Message-ID: <4befc7f02ecbf60ceb0840a2bf2b3b10@crit.org.in> Dear All: I have uploaded a series of high-resolution scanned maps and satellite imagery of Mumbai City, Suburbs, and the Metropolitan Region, in the spirit of open geo-data. These are free for viewing, downloading, and sharing. This archive contains the Bombay City Guide series conducted by the Survey of India from 1929-69, which I obtained in the University of Chicago Library a few years ago, along with some other regional plans of the Mumbai Metropolitan Region Development Authority and Bombay Municipal Corporation, and high-resolution composite satellite imagery of Mumbai from the NASA Landsat 7 series. You can view and download these maps at: http://www.crit.org.in/archives/maps You can view the images at different sizes, and if you want to download them, simply right-click on the image. To download the originals, view at original size and right-click. Please note that the file sizes are very large, between 5-25 MB and will require a fast connection to view and download properly. You can check the size of the image before choosing the size at which to view. We will be adding more maps and plans to this archive over the next few weeks, so please check back, and send me your suggestions for developing this Mumbai Map Archive. Best S.K. _____ Shekhar Krishnan 9, Supriya, 2nd Floor Plot 709, Parsee Colony Road no.4 Dadar, Mumbai 400014 India http://www.crit.org.in/members/shekhar From shekhar at crit.org.in Sat Mar 26 03:37:55 2005 From: shekhar at crit.org.in (Shekhar Krishnan) Date: Sat, 26 Mar 2005 03:37:55 +0530 Subject: [Commons-Law] Workshop on TRIPS and Computer Programs Message-ID: <333f36259d6ad5c24a4c4d3a82fca468@crit.org.in> Begin forwarded message: From: Ramanraj K Date: 25 March 2005 23.32.44 GMT+05:30 To: Principal Support List of FSF-India Cc: president at nasscom.org Cc: fsf-tn at gnu.org.in Cc: "Dr. David Ambrose" Cc: ilugc at ae.iitm.ac.in Subject: [Fsf-friends] Workshop on "TRIPS Treaty and Computer Programs" at UoM Reply-To: Principal Support List of FSF-India Workshop on "TRIPS Treaty and Computer Programs"at UoM The Department of Legal Studies, University of Madras, is organising a workshop on "TRIPS Treaty and Computer Programs", that is tentatively scheduled for 8th April, 2005 (Friday). The one day workshop is intended as an "out-reach programme" for software professionals and students specialising in international law. The legal aspects of Computer Programs are governed by the TRIPS Treaty. Globalisation, governance, and almost every human activity hinges upon Computer Programs and its legal setting. The workshop will discuss the true nature of computer programs, and the character of rights surrounding them. The harm caused by mis-application of patent law to cover computer programs in some member states of the TRIPS Treaty, notably US and Japan, and the possible remedies against such practices, will also be analysed threadbare. If you would be interested in participating in the workshop, could make a sponsorship, or have suggestions to make, please write about it to ramanraj.k at gmail.com and ambrose at unom.ac.in _______________________________________________ Fsf-friends mailing list Fsf-friends at mm.gnu.org.in http://mm.gnu.org.in/mailman/listinfo/fsf-friends _____ Shekhar Krishnan 9, Supriya, 2nd Floor Plot 709, Parsee Colony Road no.4 Dadar, Mumbai 400014 India http://www.crit.org.in/members/shekhar From patrice at xs4all.nl Sat Mar 26 17:00:08 2005 From: patrice at xs4all.nl (patrice at xs4all.nl) Date: Sat, 26 Mar 2005 12:30:08 +0100 (CET) Subject: [Commons-Law] fwdfyi: Act-Up Paris denounces new Indian pharma patents law Message-ID: <17413.195.169.149.2.1111836608.squirrel@195.169.149.2> (French Original) ExecSum: Act-Up Paris is livid about the new law on drugs patents and denounces "the treason of the Congress Party". It states that India has reneged on previous agreements and understandings, to international institutions and to the general public and patients (esp HIV affected). It calls for action and for African countries not to vote for India's permanent seat on the UN Security Council. Act Up-Paris dénonce la trahison du Parti Indien du Congrès publié le 23 mars 2005 Aujourd’hui mercredi 23 mars, le Parlement indien a adopté un projet de loi déposé seulement 3 jours ouvrables auparavant et visant à réviser la loi indienne des brevets. Act Up-Paris dénonce une trahison de 40 milions de malades du sida de la part de gouvernement indien. Le projet de loi adopté aujourd’hui est plus restrictif que même ne l’exige l’OMC, dans la mesure où : il prévoit un délai incompressible de 3 ans après l’octroi d’un brevet durant lesquels la licence obligatoire n’est pas disponible, bloquant ainsi le projet du génériqueur indien Cipla de commercialiser à court terme une version générique du meilleur médicament anti-VIH au monde, le ténofovir [section 84(6)] ; il rend inapplicable les clauses de sauvegarde de l’accord de l’OMC sur les brevets, en prévoyant que lorsqu’un laboratoire conteste en justice un aspect d’une licence obligatoire émise sur son brevet, la mise à disposition du générique est alors suspendue jusqu’au jugement final de l’affaire, qui prend généralement plusieurs années (en sachant que le laboratoire est libre de déposer une nouvelle plainte juste après) ; il prévoit aucun délai maximal pour l’examen par l’Office des Brevets des demandes de licences obligatoires, rendant ainsi extrêmement longues ces procédures relevant pourtant de la mesure d’urgence [section 84(6)] ; il autorise le brevetage consécutif des différents aspects chimiques dérivés d’une seule et même molécule originale déjà brevetée (isomères, sels, esters, polymorphes, etc), ouvrant ainsi la voie à des brevets de plusieurs fois 20 ans sur une même molécule [Section 3(d)] ; il ne prévoit pas de licences obligatoires automatiques pour les génériques utilisés actuellement par les malades qui se trouveraient brevetés dans les prochaines années ; il autorise ainsi GSK à poursuivre Cipla en justice pour obtenir 40% de royalties sur les ventes de génériques de Combivir (en Afrique du Sud GSK avait exigé un tel montant de royalties, alors qu’au Canada par exemple la loi stipule qu’elles ne peuvent pas dépasser 4%) [section 84(6)] ; En novembre 2001, l’Inde s’était engagée à l’OMC à ce que « l’ADPIC soit interprété et implémenté d’une manière favorable à la protection de la santé publique et, en particulier, à l’accès aux médicaments ». L’acharnement du gouvernement indien à adopter des dispositions largement plus restrictives que l’ADPIC constitue une trahison de cet engagement qui condamne potentiellement à mort des millions de malades pauvres. L’Inde était jusqu’ici l’unique pays au monde à exporter des versions génériques bon marché de médicaments anti-VIH brevetés ailleurs et hors de prix. Act Up-Paris dénonce le lobbying effréné de l’industrie pharmaceutique occidentale sur le gouvernement indien et la complicité active des leaders du Parti Indien du Congrès, fondé en 1915 par Mahatma Gandhi, avec les laboratoires détenteurs de brevets. La trahison du gouvernement indien, pays pourtant le plus impliqué dans la production de copies bon marché des médicaments brevetés hors de prix, rend nul et non avenu l’accord signé à l’OMC en novembre 2001 sur les brevets et la santé publique. Alors que les génériques de l’anti-cancéreux Glivec ont été déjà retirés du marché indien, causant la mort de centaines de patients indiens aux capacités financières limitées, les brevets tuent. Face à cette désastreuse trahison indienne, Act Up-Paris exige l’abolition des brevets partout où ils tuent, et appelle les pays Africains à rejeter la candidature de l’Inde au Conseil de Sécurité Permanent des Nations Unies en tant que représentante des pays pauvres. (bwo the Multitudes-info list) From hbs.law at gmail.com Sun Mar 27 05:06:12 2005 From: hbs.law at gmail.com (Hasit seth) Date: Sat, 26 Mar 2005 18:36:12 -0500 Subject: [Commons-Law] A Patenting Example...sound-generating finger puppet In-Reply-To: <20050325110007.BF57528D93E@mail.sarai.net> References: <20050325110007.BF57528D93E@mail.sarai.net> Message-ID: <8b60429e0503261536481bcbbe@mail.gmail.com> Hi Everyone, Big picture patent issues and policies - especially pharmaceuticals and software - get a lot of airtime in patent debates around the globe. While the focus in these debates is on the social side of these patent arenas, they miss the many aspects of patent systems that I tried to write about earlier. I thought why not present an example to show what a typical patent is about. Please note I haven't made a detail study of this patent, and this is just a fun-academic discussion not a legal opinion. I ran across a nice little toy patent on Dennis Crouch's blog (http://patentlaw.typepad.com/patent/2005/03/have_a_great_we.html). This is US Utility Patent No. 6,394,874 to Kubo et al. The detail text and images from USPTO are here: http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=/netahtml/srchnum.htm&r=1&f=G&l=50&s1=6,394,874.WKU.&OS=PN/6,394,874&RS=PN/6,394,874 The patent cover a simple puppet toy with an electronic chip for generating sound. The sound-generation is activable by finger inserted in the puppet. The puppet can hold candies in its tummy! Some points that come to my mind are: 0. One thing I admire about US patent system is the respect first named inventor gets by his or her name printed in big letters on the top of the patent. Quite a few inventors tell me this is more important than any other reward. I do not think PCT, EPO or Japanese patent offices do this. Another thing, is only humans can be inventors not corporations; there is usually an assignment of rights. 1. Had it not been for the patent database repository freely available to public, the knowledge about this invention (though it is a tiny invention) would have been lost after this toy is off the market or worst never available if it was not sold at all. It is now categorised, stored and freely available to the world through a patent database. 2. Unlike a small number of patents, patents as tools to capture a market segment are very imprecise tools. They depend on language and interpretation is always an open question. 3. Pioneering patents attempt but only at few times succeed in covering a whole field, given that developments in any field are hardly predictable at initial stages. The later patents face the increasing body of knowledge already published or patented as a prior art to deal with. Patenting in a field with lot of inventions or publication activity is hardly easy due to enlarging scope of prior art. 4. Let's look at the main Claim 1: 1. A finger puppet having electronic sound-generation capability, said finger puppet comprising: a finger puppet body defining a hole for accommodating an inserted finger therein; an electronic sound chip for generating an electronic signal upon activation thereof; an activation switch in electronic communication with said sound chip for activating said sound chip; a speaker in electronic communication with said sound chip for receiving said electronic signal from said sound chip and producing a sound corresponding to said signal; and further comprising a base portion pivotally attached to said puppet body wherein pivoting of said base portion relative to said body opens and closes access to said hole. Any later inventor can work around this claim ("design around") but subtracting any one element from this claim. I am not saying that designing around is always easy, but then if you trying to make what other has already made then aren't you copying other's work without any benefit to the original inventor? Some ideas that come to my mind are, how about a sound chip that has an inbuilt speaker? How about a toy without that base portion but some other method to drive the activation switch? and so on.... 5. Most common accusation against patents is that the original inventor never gets any due. Well Kubo et al., here may have had a stable job with the company, isn't that a reward enough? Yes, a lone ranger may get conned, but then that ain't fault of the patent system, but the nature of ordinary market transactions and business. 6. How did this invention take away anything from the public domain? How has it restricted the scope of developing other toys of similar nature (but not exactly the same or minor variation of the invention)? 7. A lot of later inventors can take idea of a finger operated electronic device that doesn't need the whole hand can be potentially useful in other fields because the claim uses "puppet body" and hence narrows itself to toys. Somethings that come to mind are, an alarm operable by a patient of Parkinson's or Alzeheimer's disease who may find hand-finger coordination hard to operate a switch. 8. Well aren't scientific journals enough for all research to be freely available to the public? Well for one, not many journals would find worth printing article about this toy. Second, what is the access level and lifetime of such a tiny toy journal carrying such article? Extend this to a tiny software technique described in a patent. Which open source repository can guarantee that such a technique will remain well documented in a structured form for decades (centuries?) to come? The technical information concentrating and structuring function of patent systems as a contribution to public domain knowledge seems too undervalued in the heat of discussing the theoretical 20 year control of economic exclusionary power over an invention. 9. I am not for a moment suggesting that all patenting fields are equal. Patenting drugs is different from patenting toys, elementary. But ways can be worked out to balance the return on investment and needs of consumers. A thermal power generating plant is almost a monopoly, a train system is pretty much a monopoly, yet we find out ways of ensuring a return on investment and an affordable price to consumers. It can be done for medicines too, provided some compromises are made on every side. Something similar can be worked out for software too (dual GPL/Proprietary licenses of QT library, MySQL are a few examples). Eventually, market will find out ways. For example, IBM's investing a billion dollars in Linux and pledged against using 500 patents to open source community. And so on. 10. Research, investment, invention, marketing of invention, further improvements is an inherently risky business. Losses can be huge and so can profits in many instances. And these invention cycle activities and their fruits are not gifts from heaven that must be shared equitably among everyone, as a matter of right like air and water. These are just human endeavours that need money to cycle around like most other things in an economy. Without an invention economy, what will all these graduates of science and engineering do? This is not just about patents, but in general think about invention cycles, what is needed in invention cycles, how are they sustained, and so on. A lot of issues become clear if invention cycles are viewed from an ideology independent viewpoint. Cheers, Hasit Seth From pedro_paranagua at yahoo.com.br Mon Mar 28 06:22:10 2005 From: pedro_paranagua at yahoo.com.br (Pedro de Paranagua Moniz) Date: Mon, 28 Mar 2005 01:52:10 +0100 Subject: [Commons-Law] WIPO Lockout Inspires Global Protest Message-ID: <4247553A.1040508@yahoo.com.br> March 25, 2005 WIPO Lockout Inspires Global Protest Residents of 56 Nations and Members of Hundreds of NGOs Sign Petition to Open Meetings on Intellectual Property and the Developing World Geneva - When the World Intellectual Property Organization (WIPO) earlier this month shut out many public interest groups from two April meetings about the impact of patent, copyright and related regimes on the developing world, many civil society groups greeted the news with concern. Most of the groups barred from the meetings, which are to focus on whether WIPO should adopt a "Development Agenda," are public interest organizations with special expertise on issues of economic development. Without the input of these groups, the meetings can do little to further WIPO's understanding of how patents, copyright, and related rights affect developing nations. Seeking a more balanced discussion of the Development Agenda, two Brazilian activists, Pedro de Paranagua Moniz and Pedro AD Rezende, as well as the Electronic Frontier Foundation's European Affairs Coordinator, Cory Doctorow, took action: they produced an open letter to WIPO on this issue and solicited comments on the Internet. As a result, this week over 800 individuals and groups, including EFF, signed an open letter to WIPO urging it to allow more groups to participate in these historic meetings. Residents of 56 different nations signed on, along with members of non-government organizations (NGOs) ranging from a Brazilian AIDS health group to Yale University. The letter, called the "WIPO Manifesto for Transparency, Participation, Balance and Access," asks that public interest NGOs be allowed to participate in the Development Agenda meetings as ad hoc observers and calls on WIPO to provide assistance in creating a global regime that facilitates open access to knowledge. "WIPO is undertaking a long-overdue and halting journey from a place where industrial interests meet to safeguard their marketplace advantages, to a place where the UN's humanitarian values hold center stage," said Doctorow. "This letter is the latest step in the important campaign to refocus WIPO on providing effective technical assistance that meets the real needs of its developing country members." The open letter was delivered to Dr. Kamil Idris, Director General of WIPO, on March 23, 2005, with more than 800 signatories, and it is still open for signature. Contacts: Cory Doctorow European Affairs Coordinator Electronic Frontier Foundation cory at eff.org Gwen Hinze International Affairs Director Electronic Frontier Foundation gwen at eff.org http://www.eff.org/news/archives/2005_03.php#003467 -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050328/e645a9da/attachment.html From keith at thememorybank.co.uk Mon Mar 28 13:53:52 2005 From: keith at thememorybank.co.uk (Keith Hart) Date: Mon, 28 Mar 2005 10:23:52 +0200 Subject: [Commons-Law] The Hit Man's Dilemma Message-ID: <4247BF18.3020708@thememorybank.co.uk> I have finished my longish essay, The Hit Man's Dilemma: on business, personal and impersonal. It will be published shortly by Prickly Paradigm through University of Chicago Press and can be found immediately at http://www.thememorybank.co.uk/publications/thmd. I would like to thank members of this list for offering me so much food for thought while I wrote it. Keith Hart From pokdisus at centrin.net.id Mon Mar 28 08:54:52 2005 From: pokdisus at centrin.net.id (Kurniawan Rachmadi) Date: Mon, 28 Mar 2005 10:24:52 +0700 Subject: [Commons-Law] Support from us in Southeast ASIA Message-ID: <002901c53345$eb505e80$fef992ca@pokdisus> Dear All, We are people in Shouteast Asia really support all your fight. Warm regards, Kurniawan Rachmadi Working Group (Pokdisus) on AIDS Faculty of Medicine University of Indonesia --------------------------------------------------------------- Generic ARV Drugs in Southeast Asia: Needs and Productions The 3by5 Program of the World Health Organization (WHO) has been kicked off since December 2003. In line with WHO program, ASEAN countries have started expanding the use of ARV drugs. In accordance with the capacity of each country, most of ASEAN countries have benefited generic ARV drugs except Singapore. Malaysia that once utilized patented ARV drugs in its current therapy program has shifted into the use of generic ARV drugs. Therefore, the need for generic ARV drugs in the Southeast Asia region has increased exponentially. ASEAN countries that have produced generic ARV drugs are Thailand (Government Pharmaceutical Organization --GPO), Indonesia (PT. Kimia Farma), and Vietnam (STADA) while the rest of ASEAN countries have to fulfill their needs by importing generic ARV drugs from India. Today, the production capacity of Indian generic ARV drugs is capable to serve the needs of 700,000 ARV beneficiaries. Recently, there is a heated debate in India regarding The Patent Bill that could adversely influence the role of India as the supplier of generic ARV drugs. India has set its own program to provide generic ARV drugs for its 300,000 citizens that use the life-saving drugs. The rest of its production capacity is utilized to help developing countries both in Asia and Africa to fulfill their needs of generic ARV drugs. Today, Thailand is preparing the production of generic ARV drugs to serve 70,000 beneficiaries since its existing plant cannot fulfill the demands, forcing it to open new plant. Meanwhile, PT Kimia Farma's current capacity to produce generic ARV drugs is set to serve the drugs needs of 10,000 beneficiaries while actually this capacity can be increased for fulfilling the needs of 20,000 beneficiaries. Malaysia today is providing generic ARV drugs for 5000 beneficiaries through importing generic ARV drugs from India. This is also the case in Myanmar, Laos, and Cambodia that seem to be not able to produce their own generic ARV drugs and instead, acquiring the drugs from Thailand or India. So, if the Patent Bill that is going to be endorsed in India stipulates that the production of Indian generic ARV drugs India should only for serving the domestic needs, the provision of generic ARV drugs in ASEAN countries would be in danger. Indeed, cooperation among ASEAN countries is needed in a bid to fulfill the soaring demands over generic ARVs. It is inevitable that most of ASEAN countries will turn to Thailand and Indonesia for helping their citizens. Indonesia actually has great potency in providing generic ARVs since PT Indo Farma has been prepared for producing generic drugs for 200 millions Indonesians so that its factory has the capacity to be the biggest factory of generic drugs in ASEAN. The state of cooperation that needs to be approved is in calculating the production capacity, finding raw materials as well as finding the most feasible cooperation (it seems that G to G cooperation is the most feasible one). Indonesia itself needs to build cooperation between its state-owned pharmaceutical companies, Kimia Farma and Indofarma so that it can prepare itself to be one of the producers of generic ARV drugs that could meet both domestic demands as well as those of other countries. At the end, WHO should be able to facilitate this production increase while at the same time also help to maintain the production quality so that ASEAN community can benefit world quality ARV drugs. (Samsuridjal Djauzi and Kurniawan Rachmadi, Pokdisus AIDS FKUI) ----- Original Message ----- From: aidslaw To: pwha-net at eforums.healthdev.org ; sea-aids at eforums.healthdev.org ; commons-law at sarai.net ; saathii at yahoogroups.com ; af-aids at eforums.healthdev.org ; AIDS_ASIA at yahoogroups.com ; EMPOWER - INDIA ; AIDS-INDIA at yahoogroups.com Cc: AMTC India Sent: Sunday, March 20, 2005 4:39 AM Subject: [SAATHII] Action Alert!!! Patent Bill is introduced with NO change Action Alert!!! Patent Bill is introduced with NO change On Friday, 18 March, the Government introduced the Patent Bill in the Lok Sabha, despite the overwhelming voices of objection from opposing parties being in the majority. http://www.hindu.com/2005/03/19/stories/2005031907500100.htm The Bill replicates the original Amendment which had been passed in the Ordinance. Newspaper reports confirm that the Government is negotiating with political parties, in particular with the left parties, to obtain changes to the Bill. However, information we are receiving indicates that offers by the Government to amend the Bill are merely cosmetic and far from satisfactory in terms of protecting and ensuring the public's future ability to access affordable medicines and healthcare. http://www.hinduonnet.com/2005/03/19/stories/2005031906781100.htm It is imperative that parties and groups negotiating with the Government do not compromise on any of the amendments that have been sought to the Bill and immediately urge that negotiations are made transparent and a full opportunity for all groups to discuss the Bill is allowed, ideally through a select committee. Therefore, as a matter of urgency, we call up on all groups to express their concerns by contacting the following political parties/politicians by email, fax or telephone, details of which are attached. A sample letter to raise your concerns to the politicians/political parties, which you may copy and paste, is attached. Thank you for your continued support. Affordable Medicines and treatment Campaign(AMTC), ACT UP Paris, Alternative Law Forum, Medecins Sans Frontiers (MSF) Dear Sir Introduction of the Patent Bill Following the introduction of the Patent Bill in the identical form that it was passed in the Ordinance, we implore you to ensure that the amendments to the Patent Bill which we have been calling for are not compromised in any way or form. We understand the Government is in negotiations with the Left parties and is offering concessions to amend the Bill, but we believe that such concessions are merely cosmetic. For the sake of public interest and affordable medicine and healthcare in India and other countries around the world, there can be no compromise of the following points: q Clearly define 'Patentable Criteria' i.e what is patentable and what is not. q Exclude secondary patents for new usage, dosage combination etc of known drugs. q Restore the Pre-grant opposition provision to its original form to prevent frivolous and invalid patents. q Delete the 3 year moratorium on compulsory licenses. q Introduce a ceiling royalties to pharmaceutical companies. q Delete the requirement of the country importing drugs to also issue a compulsory licence. q Restrict the latitude given to the Government in the rule making powers. We ask that you realise the importance and effect of compromising on any of the above and trust that you will support the need to have a full transparent discussion, namely through the select committee process, on the Patent Bill in order to achieve the above. Yours sincerely [Name of organisation] Disclaimer: Opinions expressed in the above articles are those of the respective newspapers and authors, not those of SAATHII. Web Site : www.saathii.org (SAATHII website will be one of the comprehensive websites for HIV-AIDS information in India and a unique tool for networking) To Post a message, send it to: saathii at yahoogroups.com To Unsubscribe, send a blank message to: saathii-unsubscribe at yahoogroups.com Access message archive since February 2000: http://groups.yahoo.com/group/saathii/messages SAATHII Mission: Information Dissemination, Networking and Capacity Building of and Advocacy for the Indian Civil Society to enhance and strengthen the response towards the fight against HIV infection in India Yahoo! Groups Sponsor ADVERTISEMENT ------------------------------------------------------------------------------ Yahoo! Groups Links a.. To visit your group on the web, go to: http://groups.yahoo.com/group/saathii/ b.. To unsubscribe from this group, send an email to: saathii-unsubscribe at yahoogroups.com c.. Your use of Yahoo! Groups is subject to the Yahoo! Terms of Service. -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050328/ccf279ca/attachment.html From sollybenj at yahoo.co.in Mon Mar 28 14:36:22 2005 From: sollybenj at yahoo.co.in (solomon benjamin) Date: Mon, 28 Mar 2005 10:06:22 +0100 (BST) Subject: [Commons-Law] the anthropologist in the new war: P2P, open source, and innovative and threatening terrains Message-ID: <20050328090622.50207.qmail@web8405.mail.in.yahoo.com> Are the INtels, the Nokias and the big boys in IT seeking ways to track / blue tooth {--as a verb} systemize, and then capitalize? Are the new targets P2P, opensource? Second, are these all a part of a larger effort to map 'innovative' terrains that may threaten their own products and markets? Are these trends reflective of new ways of social control when inter-linked with GIS based mapping? This are the main questions that remained when I returned last week from the DOORs conference "Doors of Perception -Infra 8. This had in attendence the NOKIa's, the INtel's and several MNC sponsorships, and also designers, anthropologists, media installations. It is true that there were some very interesting presentations on moving towards an economy less driven by consumtion, or then on attempts to raise poilitical accountability using ICT4Ds. (Little on improving corporate accountability though, but then, the sponsors would hardly approve of that topic as a session heading.) But the overall flavor was of a sort of "zing": The world potrayed as an exciting innovating place. It was a bit messy though, and perhaps needing some enlighment, connections, and good design. Thus, one of the main issues is seen as to how to 'map culture', as a way to transform these into new markets -- but not before the 'designers' had a go at it, adding that special touch. In any case, the locals, as posed by the ethnographer / anthropologist from Intel (and INtel has 10 of them), could do with some help. Now this in itself, is not new, and it was hardly surprising that just as in the recent great wars (WW-II, Korea, Vietnam, Palestine, Afgansitan and Iraq), anthropologists have played a key role. There seemed two issues: 1) One was that of competing terrains and IPR. The assumption seems that well, there are all those interesting innovating things happening these, but they need to be tracked in a subtle way enabled by the new blue tooth based techniques. The analogy was, as presented so well by an Italian designer, was of a sofa, so alive and enabled, warm and comforting, that in an ubtrusive way, it locates the particulary postures and relationship of the people who sit on it. Another, and in related theme was the presentation by Nokia again on tracking such new geographies via the new generation of blue tooth based stuff. There were several others incl. some exciting installations that did a sort of spatial trick, and perhaps this might explain the key role for architects (incl. ex ones) and desighners to complement the anthropologists. Not surprising, was the focus on peer to peer exchanges and open source exchanges where the subtle theme was can the enabled sofa that may do its jobs so effectively. 2) The second theme related to innovative terrains yet being messy. The big question posed was, Does design have a role? I felt that the issue is not if it has or not, but why is such a question posed in the first place. Is it, like the anthropologist in times of war, to map the messiness to set in motion efforts to control and capitalize via IPR and new patent regimes. For instance, where was the role of who controlled, and the nature of modern day capital and in effect property? I attempted to draw attention to this linking to Steadman Jones work on London in the industrial revolution, but only with a tame response. 3) The third issue, that hit me later, related to some GIS types encountered waiting in a long q at lunchtime. GIS as a way of tracking land titles, is seen in the perspective of Hernando De Soto, the World Banks' blue eyed boy, as a way to make cities and the poor 'bankable'. But it is also very attractive for the internal /home affairs department of any government as a way of tracking and tagging particular groups -- an issue that I recently witnessed in a presentation of the work of Bangalore'e E-Governance Foundation (funded by its main IT honcho), and also interviews with the technical director of the National Informatics Centre. In other work, I have discussed this issue, but here in the context of DOORs-8, these memories came flashing back Perhaps I was so taken back by the combination of designers/ anthropologists / ethnographers / and sociologists that I decided to preface my presentation with the following that questions our attempt to sometime constantly map our cities in a un-questioning way. Innovating Neighborhoods..but also heralding a new War? (in which Architects play Golf, Planners play God, and the Big Boys talk at night) Mapping for the New War: WW-II, Vietnam, Korea, Palestine, Afghanistan, Iraq...and mapping 'culture'..Are we the ethnographers and anthropologists of a New War? Mapping cultures for Corporate power that seeks to establish new forms of controls via Patents, IPR, Copy Rights, Master Planning, are we mapping Open Source and 'P to P' to 'open' while closing? I then moved to the main arguments: * India's largest innovative cluster are what Master Planners term as "Slums". This helps big business benefit with public subsidies and cheap land forcibly acquired! * Innovative neighborhoods come from Juggard or "COPY CULTURE -- No IPR !! " *This is underpinned by incrementally upgrading land markets, upgraded with productivity enhancing infrastructure and services by municipal councils. Messy but effrctive! *Threat comes from Master Planning viewing this as "NON-CONFORMING AND UN-PLANNED" but to favor corporate big business to access land and subsidized infrastructure and services; Finally, a new role (in war) for Anthropologist, Ethnographers, and designers, architects, planners, and media artists.. If so, while Innovation is Nice., whose side are you on? WW-II, Vietnam, Korea, Palestine, Afghanistan, Iraq... ...are we at the New War ... Mapping new cultures, city scapes, innovations, the exclusive designers of new forms of controls via Blue Tooth, embedded stuff invisible, contractual copyrights underpinning artistic abilities and the new aesthetic, to 'open' while closing... ________________________________________________________________________ Yahoo! India Matrimony: Find your life partner online Go to: http://yahoo.shaadi.com/india-matrimony From skjha at iitb.ac.in Mon Mar 28 18:20:45 2005 From: skjha at iitb.ac.in (Shishir K Jha) Date: Mon, 28 Mar 2005 18:20:45 +0530 (IST) Subject: [Commons-Law] A Supreme Court Showdown for File Sharing Message-ID: <2391.10.127.133.110.1112014245.squirrel@gpo.iitb.ac.in> An article on file sharing ... Shishir K. Jha ----------------------------------------------------- New York Times March 28, 2005 A Supreme Court Showdown for File Sharing By SAUL HANSELL and JEFF LEEDS or someone whose business is under attack in the United States Supreme Court, Mark Gorton was remarkably serene last week, sprawled on a couch in his Manhattan office. Mr. Gorton's company, the Lime Group, publishes LimeWire, one of the most popular software programs used to trade music, video and other files over the Internet. Tomorrow, the Supreme Court will hear arguments in a case in which the recording and film industries seek to hold makers of file-sharing software liable for the illegal copying and distribution of copyrighted material online. The case is against other file-sharing services, Grokster and Morpheus, which won in lower courts, but Mr. Gorton said that if those rulings were overturned, it could make LimeWire vulnerable. "If the Supreme Court says it is illegal to produce this software, LimeWire the company will cease to exist," Mr. Gorton said. "But LimeWire the software will continue to be on the Net no matter what we do in this business." The case, M.G.M. v. Grokster, is in many ways the culmination of five years of escalating legal, technical and rhetorical attacks against file-sharing systems and their users by the music industry. It is being eagerly followed by a range of media and technology companies because the court may use this case to redefine the reach of copyright in the era of iPods and TiVo. But no matter how the court rules, both music executives and file-sharing advocates like Mr. Gorton agree that it will probably always be possible for fans to find loads of free music with a few clicks of a mouse. Still, the case will determine whether file sharing can continue to be promoted by companies like LimeWire and Sharman Networks, which makes Kazaa, that operate in public and earn profits from advertising and software sales, or whether the software will be written and distributed by shadowy players on the fringes of the law. "I think this court decision is a game changer. It will dramatically affect behavior, and behavior will dramatically affect how music is sold and distributed and consumed," said Andrew Lack, chairman of Sony BMG Music Entertainment, which releases music by stars like Usher and Bruce Springsteen. "It will clarify the law and establish right from wrong." If the music industry loses, it will likely redouble its efforts to sue individuals trading files and intensify its technical efforts to disrupt the networks. So far, those tactics have been modestly effective at best, and a loss in the Supreme Court may well erode the industry's control of copyrighted material further. Yet, since the court can do little to alter the spread of technology or the interests of copyright owners to protect their material, many expect something resembling a permanent war. "We are guerrillas fighting the despotic regime," said Alan Morris, the executive vice president of Sharman Networks, the Australian company behind Kazaa, once the leading file-sharing network and the recording industry's leading target, which is being sued by the music industry in both American and Australian courts. "They have some quite heavy guns, but we can see where they are firing from, " Mr. Morris said. There are some who say that a court ruling, in any direction, may also help define the terms of a cease-fire. The end of litigation could rekindle the back-channel negotiations between some music labels and some file-sharing services to create ways for users to trade some files free while paying for others. Some executives have discussed a plan in which users could download free, low-quality tracks with an offer to buy higher-quality versions. The two biggest music companies, Universal Music Group, a unit of Vivendi Universal, and Sony BMG, for example, recently signed deals to provide music through Snocap, a software package intended to control the swapping of unauthorized songs. Snocap also happens to be the creation of Shawn Fanning, the founder of Napster, the original file-sharing, or peer-to-peer, service. "Peer-to-peer is the way that people access content," said Mr. Fanning. "There is a void in the marketplace, there are people who are willing to pay for it." Of course, getting people to pay anything is an enormous challenge. There are about 60 million people using file-sharing services in the United States, with roughly 8.5 million logged on at a time, said Eric Garland, chief of BigChampagne, which studies traffic on file-sharing networks. While some surveys have suggested that file-sharing activity slowed in 2003, when the Recording Industry Association of America began to sue individual users for trading copyrighted songs, Mr. Garland said that the number of people logging on to file-sharing networks had risen steadily and that he expected the number to increase by 10 percent or more this year. The music industry, meanwhile, is recovering from a long slump. It sold 814 million CD's, cassettes and units of music in other formats last year in the United States, up 2 percent, its first increase in five years, the recording industry association said. It also sold 140 million digital tracks in the United States, the association said. But the industry says it thinks it would have seen a bigger sales rebound had it not been for online piracy. The recording industry is exploring ways to release new CD's with technology that will restrict copying. Sony BMG is expected to use such technology on at least half their new recordings in the United States by the end of this year. Some independent record labels are taking a less confrontational stance and trying to tap into the popularity of file-sharing networks by selling their music on them, often alongside pirated versions of the same songs. Kazaa has been pursuing that idea for several years through an affiliated company called Altnet, which allows labels to put authorized files of songs on its networks. These files are either offered for sale, or they are free for promotional purposes, often with technology that restricts their use to a certain time period. Altnet is still small, with revenues of less than $1 million in 2004, but it has been used by some independent labels, including V2, the label of Richard Branson's Virgin Group. V2 sells songs by its acts like the Stereophonics and Moby through Altnet for 99 cents each because file-sharing networks have eclipsed MTV and radio as the place fans discover new music, said Jeff Wooding, its director of marketing and new media. He said that the move would not stop piracy, but could be used to promote the bands' merchandise and concert tickets as well as earn something for download sales. "No one's kidding themselves that we expect to convert a whole lot of users," Mr. Wooding said, but he added that he thought many file sharers would buy merchandise and concert tickets from bands they liked and that some might eventually purchase a CD. Altnet is also experimenting with an advertising-driven format developed by Intent MediaWorks, which buys rights to songs from artists for distribution in a special file format. The first time a user tries to play the song, the file opens a Web page with an advertisement on it. Intent MediaWorks is also working on ways to insert audio commercials into the songs. "The idea for the advertising model is to transform file-sharing networks into radio," said Lee Jaffe, president of Altnet, which is distributing Intent MediaWorks' files. "But unlike radio where artists and labels don't get paid, they will be able to share the revenue." Major recording labels, however, have been very resistant to doing deals with Altnet and similar systems, fearing that such alliances might undercut their lawsuits against the file-sharing networks. They have demanded that the networks remove all the unauthorized songs before they do any business with them. Shawn Fanning's Snocap system is an attempt to help file-sharing networks do just that. It creates a way for copyright owners to register the songs they own. The networks, using a technology called acoustic fingerprinting, can identify whether a file being downloaded is in a copyrighted registry. The copyright owner can choose to block the download, offer the song for sale or offer a limited-use version of the song as substitute. Snocap, in addition to endorsements from Universal Music and Sony BMG, will also be used by Mashboxx, a new file-sharing service started by Wayne Russo, the former president of Grokster, which is based in Nevis, West Indies. But it still faces some significant challenges. First, the company has not released a working version of the software, and many file-sharing advocates dismiss the concept as thoroughly unworkable. "Snocap will fail miserably in the market," said Michael Weiss, chief executive of StreamCast networks, which makes Morpheus. "If I was looking for a download, and I got some sort of truncated file with a message that says buy this or do that, I don't see why anybody would embrace that," he said. "If you wanted to buy music, you could go to the online stores that are doing a great job like iTunes." Mr. Russo said that his approach did not need to win over all file-sharing users to make some money for him and the record companies. "There are 2.5 billion music files traded every month," he said. "If we can capture 1 percent of that, 25 million files, and we convert 5 to 10 percent of those to paid, I am very happy." Aside from these attempts to reach détente with the free file-sharing networks, the recording industry knows it also needs new products and new avenues for distribution. It has, for instance, placed a hefty bet on DualDiscs, a new two-sided CD format that features music on one side and video on the other. "We are committed to giving consumers what they want, legitimately and in a way that fairly compensates those that work so hard to create content," said Zach Horowitz, president of Universal Music Group, which releases music by acts like U2 and 3 Doors Down. "If we win the case," Mr. Horowitz said, "all the efforts we are making to launch compelling legitimate alternatives will gain traction. There will be no turning back the clock in terms of the countless ways we are making our music available to take advantage of the new technologies." From jeebesh at sarai.net Tue Mar 29 07:26:25 2005 From: jeebesh at sarai.net (Jeebesh Bagchi) Date: Tue, 29 Mar 2005 07:26:25 +0530 Subject: [Commons-Law] Van Meegeren's Fake Vermeer's Message-ID: <4248B5C9.8030303@sarai.net> ------------------------------------------------------------------------ just to archive the story of this incredile incident in the history of fake and it's trail. best, jeebesh http://essentialvermeer.20m.com/misc/van_meegeren.htm Van Meegeren's Fake Vermeer's ------------------------------------------------------------------------ Discovery Probably the most dramatic art scam of the 20th c. was the Han van Meegeren case. In 1937, Abraham Bredius (one of the most authoritative art historians who had dedicated a great part of his life to the study of Vermeer) was approached by a lawyer who claimed to be the trustee of a Dutch family estate in order to have him look at a rather large painting of a Christ with his Disciples. Shortly after having viewed the painting, the 83 year old art historian wrote the Burlington Magazine, the "art bible" of the times: "It is a wonderful moment in the life of a lover of art when he finds himself suddenly confronted with a hitherto unknown painting by a great master, untouched, on the original canvas, and without any restoration, just as it left the painter's studio! And what a picture! Neither the beautiful signature "I. V. M. in monogram) nor the pointillé on the bread of the Christ is blessing, is necessary to that we have a - I am inclined to say the masterpiece of Johannes Vermeer of Delft...." No doubts were advanced since Bredius' opinion was taken as gospel in the art world so much that he had been nick-named "the Pope" This work (right) that today seems so heavy handed and awkward was in reality a fake by Hans van Meegeren, a mediocre Dutch artist who had lived and worked in almost complete obscurity. ------------------------------------------------------------------------ ------------------------------------------------------------------------ The Trial In May 1945 Van Meegeren was arrested, charged with collaborating with the enemy and imprisoned. His name had been traced to the sale made during the second world war of what was then believed to be an authentic Vermeer to Nazi Field-Marshal Hermann Goering. Shortly after, to general disbelief, Van Meegeren came up with a very original defense against the accusation of collaboration, then punishable by death. He claimed that the painting, The Woman Taken in Adultery, was not a Vermeer but rather a forgery by his own hand. Moreover, since he had traded the false Vermeer for 200 original Dutch paintings seized by Goering in the beginning of he war, Van Meegeren believed that he was in fact a national hero rather than a Nazi collaborator. He also claimed to have painted five other "Vermeer's," as well as two "Pieter de Hoogh's" all of which had surfaced on the art market since 1937. ------------------------------------------------------------------------ "In 1947 the trial took place and in order to demonstrate his case it was arranged that, before the court under police guard, he would paint another "Vermeer", Jesus Among the Doctors, using the materials and techniques he had used for the other forgeries. During the incredible two year trial Van Meegeren had confessed that "spurred by the disappointment of receiving no acknowledgements from artists and critics....I determined to prove my worth as a painter by making a perfect 17th century canvas." " ------------------------------------------------------------------------ During the investigation, Van Meegeren revealed that having once fooled the art world with Christ and the Disciples at Emmaus, probably his best forgery, he was encouraged to try new forgeries. He painted a head of Christ, sold it through an intermediary and then "found" the Last Supper for which it was a supposed study. The buyer of the Christ painting was only too eager to snap-up the full scale painting." 1 "Perhaps the greatest problem that faced Van Meegeren then was the secrecy in which he had to work. He could hire no models, since they might talk. For the painting below he was forced to rely mainly on his imagination and it is a wonder that he dared such a accomplished composition, involving 13 figures in a variety of poses. At one point he stole directly from Vermeer, using the head of the Girl with a Pearl Earring for his head of St. John, as the paired photo at the right shows. " 2 ------------------------------------------------------------------------ Van Meegeren spent four years working out techniques for making a new painting look old. The biggest problem was getting his oil paint to harden thoroughly - process that normally takes 50 years. He solved it by mixing his pigments with a synthetic resin instead of oil, and baking the canvas. Now he was ready to begin. He took an actual 17th c. painting and removed most of the picture with pumice and water, being most careful not to obliterate the network of cracks, which had an important role to play." 3 After having tried his hand at a few of the more typical Vermeer's, Van Meegeren had what might be called his own stroke of genius. Instead of forging the more typical interiors which could be compared to works hanging in museums, Van Meegeren chose to forge an early Vermeer of a religious theme based on a composition of Caravaggio. Scholars had long suspected that Vermeer had been to Italy and Van Meegeren's lost painting confirmed that. The subject and early technique of the painting also helped to mask his own technical and expressive inadequacies. At the end of the trial collaboration charges were changed to forgery and Van Meegeren was condemned to one year in confinement. Click here to view a number of Van Meegeren's forgeries. ------------------------------------------------------------------------ ------------------------------------------------------------------------ Van Meegeren spent four years working out techniques for making a new painting look old. The biggest problem was getting his oil paint to harden thoroughly - process that normally takes 50 years. He solved it by mixing his pigments with a synthetic resin instead of oil, and baking the canvas. Now he was ready to begin. He took an actual 17th c. painting and removed most of the picture with pumice and water, being most careful not to obliterate the network of cracks, which had an important role to play." 3 After having tried his hand at a few of the more typical Vermeer's, Van Meegeren had what might be called his own stroke of genius. Instead of forging the more typical interiors which could be compared to works hanging in museums, Van Meegeren chose to forge an early Vermeer of a religious theme based on a composition of Caravaggio. Scholars had long suspected that Vermeer had been to Italy and Van Meegeren's lost painting confirmed that. The subject and early technique of the painting also helped to mask his own technical and expressive inadequacies. At the end of the trial collaboration charges were changed to forgery and Van Meegeren was condemned to one year in confinement. Click here to view a number of Van Meegeren's forgeries. ------------------------------------------------------------------------ Epilog The deep doubts regarding international art establishment spurred by the Van Meegeren case resulted in years of a much needed self-examination. Art historians, connoisseurs, museum directors and unscrupulous dealers had all been involved. Above all, contemporary methods of evaluating the work master painters required a profound reconsideration. "The dénouement of the Van Meegeren affair brought about a kind of a catharsis. The clearest example of this is found in Arie Bob de Vreis' Vermeer monograph. The first edition in 1939 sketched a picture of the artist that had been shaped by Hannema's exhibition. 4 The second edition was published in 1948. Not only was the text completely revised, but the catalogue of the works had been reduced from forty-three to the now familiar thirty-five. De Vries explained: 'It was only after the war that this bewildering forgery business had come to light. It opened my eyes completely. I now feel that I have to remove every doubtful work from the artist's oeuvre. ' " 5 "The post-Van Meegeren period saw the publications of monographs by Pieter T. A. Swillens, Sir Lawrence Gowing, Vitale Block, and Ludwig Goldscheider, but it was above all Albert Blankert's sober study of 1975 that acted as a kind of medicinal purge. In an addition to the critical catalogue, the book contained an important chapter on 'Vermeer and his public.' For the first time it drew attention to a group of collectors and connoisseurs of the late seventeenth, eighteenth, and early nineteenth centuries who had view Vermeer not as a "sphinx" but a first-class painter." 6 In the later half of the 20th c. Vermeer's painting has been reexamined in a more objective light. As as result, the personal intuition of a few trusted "experts" is no longer considered a reliable basis for evaluating the work of such a complex painter as Vermeer. His entire oeuvre is now studied in strict relation to his contemporary social and artistic milieu and through the understanding of the contemporary iconography which is generally believed to have played a fundamental role in Dutch painting. Laboratory analysis has also become an integral part of understanding Vermeer's and Dutch 17th c. painting as well. ------------------------------------------------------------------------ ------------------------------------------------------------------------ Who was Hans Van Meegeren? ------------------------------------------------------------------------ Henricus Anthonius van Meegeren was born in Deventer in1899 as the third child of Roman Catholic parents. His father sent him to the Delft Institute of Technology in order to be trained as an architect. However, Van Meegeren soon discovered a love for art and made such significant progress that he quickly became the teaching assistant in the departments of Drawing and History of Art. He won a gold medal for a drawing of a church interior done in the seventeenth-century style already demonstrating his talent for imitation. After having married Anna de Voogt (who later bore him two children - Jacques and Pauline) he began to show his first paintings with some success in an exhibition in Kunstzaal Pictura, Den Haag. Then his problems began, Van Meegeren began drinking. In 1921 he spent three months traveling in Italy presumable to study the Italian masters and in 1922 he held an exhibition of paintings, which were all sold, of Biblical themes in Kunstzaal Biesing, The Hague. In 1923 he officially divorced from Anna van Voogt. 1927 Van Meegeren's The Deer was the most valued painting at a lottery of the Haagsche Kunstkring. Shortly after he married the actress Jo Oerlemans, who was formerly married to the art critic C.H. de Boer . Van Meegeren regularly contributed articles for De Kemphaan, a monthly art magazine founded in 1928 which opposed progressive art movements. He also designed the magazine's cover. However, the magazine was closed only two years later. When Van Meegeren moved to moved to Roquebrune, in the south of France, he was probably thoroughly convinced that there was no longer any possibility that his talent would ever be recognized by the art establishment. In order to vindicate himself on the art world, Van Meegeren began working in a series forgeries. As a kind of warm-up exercise, he first produced four unsold paintings in 17th century style : A Guitar Player and A Woman Reading Music in Vermeer's style, A Woman Drinking, in Frans Hals' style and A Portrait of Man in Ter Borch's style. Once Van Meegeren had gained sufficient confidence by means of his initial technical and stylistic experiments, he then painted Christ and the Disciples at Emmaus, probably the best of all his forgeries. Click here to view a gallery Van Meegeren's own work. In Sept. 1937, Christ and the Disciples at Emmaus was identified by Bredius as a masterpiece by Vermeer of Delft. It was Bredius' contention that Vermeer had been influenced by Italian painting and Van Meegeren's forgery was especially welcomed as it supported this theory; exactly what van Meegeren had hoped for. At first Van Meegeren wanted to reveal the fraud - especially because he despised in particular Bredius - but when he sold the fake Vermeer for the equivalent of what would now be several million dollars, he unsurprisingly had second thoughts. He had proven to his own satisfaction that the Dutch art establishment was ignorant, and that would have to do as long as he could make good money. Scarcely one year later the painting was officially delivered to Museum Boymans, purchased with financial donations of the Stichting Rembrandt, the Rotterdam ship-owner W. van der Vorm, Bredius and a few Rotterdam private collectors. Christ and the Disciples at Emmaus soon became the museum's top attraction. In the summer of 1938 Van Meegeren, spurned by the overwhelmingly enthusiastic reception of his work, moved to Nice and painted The Card Players and The Drinking Party in the style of Pieter de Hooch. In 1939 this last painting is sold to D.G. van Beuninge. Over a 17th century painting of Govert Flinck,Van Meegeren painted The Last Supper in the style of Vermeer but due to the threat of war he returned to Holland leaving the painting behind in Nice. From 1941 to 1943, the year in which he divorced his second wife, Van Meegeren continued to produce a number of Vermeer forgeries. In 1943 he sold the Christ and the Adulteress sold to Field-Marshal Hermann Goering in exchange for two hundred Dutch paintings which the Nazis had plundered early in the war. One of Van Meegeren's forgeries was sold in 1942 for the 1.6 million Dutch guilders, making it one of the most expensive paintings ever sold. In 1945, May Captain Harry Anderson discovered Christ and The Adulteress in Goering’s personal art collection and soon traced to painting to Van Meegeren. Van Meegeren was arrested and charged with collaboration for having sold a "Vermeer" to Goering. After two weeks of imprisonment Van Meegeren on June 12 revealed that he could not accused as a collaborator since he had himself painted the painting in question. After being detained in prison for six week, he was placed in a house rented by the Dutch government, and there he began to paint, for the benefit of the court authorities, his last "Vermeer," Jesus amongst the Doctors. In November of 1947 Van Meegeren was convicted to one year in prison. One month later, at the age of 58, he fell ill due to years of drug and alcohol abuse and died of a heart attack in prison. In 1950 household effects were auctioned in his house at 321 Keizersgracht in Amsterdam. In all he made more that seven million guilders, about $2 million then and roughly about twenty times that amount today. In his last years Van Meegeren lived the high life and had purchased a number of houses until he was caught. ------------------------------------------------------------------------ 1 Hans Koongsberger and the editors of Time.-Life Books, The World of Vermeer: 1632-1657, New York, 1967 2. ibid. 3. ibid. 4. In 1935 Bredius' pupil Dirk Hannema curated an exhibition in Rotterdam in which six of the fifteen paintings attributed to Vermeer were not authentic. 5. Ben Broos, "Malice and Misconception," in Vermeer Studies, edited by Ivan Gascell and Michiel Jonker, New Haven and London, p. 27 6. Aurthur K. Wheelock Jr. (with contributions by Albert Blankert, , Ben Broos , and Jorgen Wadum), Johannes Vermeer, 1995 7.Hans Koongsberger and the editors of Time.-Life Books, The World of V ermeer: 1632-1657, New York, 1967 From prabhuram at gmail.com Tue Mar 29 18:35:31 2005 From: prabhuram at gmail.com (Ram) Date: Tue, 29 Mar 2005 15:05:31 +0200 Subject: [Commons-Law] Software patents under Ordinance face reversal Message-ID: <68752c9f0503290505622668c6@mail.gmail.com> >Financial Express Patents to LG, Nokia, Philips under review Software patents under Ordinance face reversal K G NARENDRANATH New Delhi, March 28 The Patent Office is likely to reverse the patents granted to embedded software during the period the Ordinance was in force. While the Patents Ordinance had allowed such patenting, the Amendment Bill passed in Parliament last week had dropped the clause that allowed patenting of software-related inventions. Since December 27, 2004, when the Ordinance was promulgated, letters have been issued to many claimants of software-related patents, asking them to establish the compliance with the technical requirements for patenting. When contacted, Controller General of Patents and Trademarks S Chandrasekharan told FE that patenting process for software-related inventions initiated after December Ordinance would now be reversed. He was, however, non-committal when asked whether the patents granted prior to the Ordinance would also be revoked. Multinational electronics companies such as LG, Nokia, Siemens, Philips and Samsung had obtained a spate of Indian patents on sundry mechanical applications of software. According to sources, over 150 patents on "technical effects of software" had been granted in the country even prior to the December Ordinance. These patents were granted despite the legal ambiguity that had prevailed prior to issuance of the Ordinance. The Patent Office had interpreted the law leniently in favour of patent seekers. Not only that, as soon as the Ordinance clarified that software could be patented if embedded with hardware, the Patent Office had begun the patenting process afresh for a large number of such inventions. Patents granted to software-enabled inventions include video imaging systems in mobile telephone handsets, data transmission systems as well as methods for controlling speeds of devices. Legal experts point out that software-related patents already granted could be successfully challenged in courts, given the clarification of the law in the recent amendment. Many countries give patents to software-enabled technical effects, while some like the US allow even patenting of software per se. A large section of the Indian IT software and services industry has been pitching for patenting of software embedded with hardware arguing it would help increase commercial value of domestically developed software and augment exports. The counter argument is software processes are just mathematic algorithms that do not qualify as inventions. Left parties had claimed that only foreign MNCs would benefit from software patents. The Patent Office is planning to start a project for comprehensive search of non-patent literature on inventions. Currently, while prior art information regarding patent applications and grants is available under the World Intellectual Property Organisation (WIPO) mechanism, there is a huge shortcoming about accessing non-patent literature. URL: http://www.financialexpress.com/fe_full_story.php?content_id=86454 -- Prabhu Ram, Max-Planck-Institut for Intellectual Property, Competition and Tax Law, MarstallPlatz 1, 80539 Munich GERMANY Tel: + 49 89 24246226 Mob: + 49 17629830521 Web: http://infoserve.blogspot.com From z3118338 at student.unsw.edu.au Wed Mar 30 12:56:42 2005 From: z3118338 at student.unsw.edu.au (z3118338 at student.unsw.edu.au) Date: Wed, 30 Mar 2005 09:26:42 +0200 Subject: [Commons-Law] New Book - Law and Internet Cultures Message-ID: <200503300926.43661.z3118338@student.unsw.edu.au> This looks very useful and good. As i have read some of it already I recommend it to everyone interested in the topic Martin Law and Internet Cultures Kathy Bowrey University of New South Wales, Sydney http://www.cambridge.org/uk/catalogue/catalogue.asp?isbn=0521600480 (ISBN-10: 0521600480 | ISBN-13: 9780521600484) Not yet published - available from May 2005 (Stock level updated: 08:00 GMT, 30 March 2005) £17.99 This book raises the profile of socio-political questions about the global technology and information market. It is a close study of communication flows, networks, nodes, biopolitics and the fragmentations of power. It brings to life the role played by personalities, corporate interactions, industry compromises and the regulatory incompetencies, affecting the technological world we all live in. US technology powers the internet and disseminates American culture on an unprecedented scale. Assessing this power requires an analysis of the diffuse ways that US practice, policy and law dominates, and a consideration of how influence is negotiated and resisted locally. This involves a discussion about how ideas about trade and innovation circulate; of the social power of engineers that establish conventions and protocols; of the reach of Leviathan corporations; and questions about global marketing and consumer tastes. For readers interested in intellectual property law, information technology, cultural studies, globalisation and mass communications. • A study of the internet and how it is regulated, familiar with the US debates, but consciously positioned from outside US perspectives • A considered, practical appraisal of the limits of contemporary law making in relation to technology issues. • It will appeal to a cross section of subject areas and includes a good mix of scholarly, journalistic and cultural observations Contents 1. Defining Internet law; 2. Defining Internet cultures; 3. Universal standards and the end of the universe. The IETF, global governance and patents; 4. Linux is a registered trademark of Linus Torvalds; 5. In a world without fences who needs Gates?; 6. Telling tales. Digital piracy and the law; 7. Participate/comply/resist From tahir.amin at btopenworld.com Wed Mar 30 13:14:43 2005 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Wed, 30 Mar 2005 08:44:43 +0100 (BST) Subject: [Commons-Law] Letter to President re Indian Patent Act Message-ID: <20050330074443.45638.qmail@web86111.mail.ukl.yahoo.com> Dear All, Following the passing of the new Patent (Amendment) Act 2005, civil society and activist groups here in India and internationally, are maintaining the pressure on the Indian Government to re-consider the Patent Act in light of impact it is likely to have on the ability to access affordable medicines. Under the Indian Constitution, the President of India has the powers to send the Act back to Parliament for amendments. Therefore, as one of the measures to maintain the pressure on the Indian Government, a letter/fax/email campaign has been started, requesting that the President send the Act back on constitutional grounds and include the amendments which safeguard the right to life and health through access to affordable medicines. Please take the time to send the attached letter , or your adapted version of it, in your organisations/individual name. The fax and email details are in the email attached. Many thanks for your support Tahir --------------------------------------------------------------------------------------------------- Dear friends, Below is the text of a letter to the President of India, who is vested with the constitutional power to send a Bill back to Parliament for amendments. We feel that you should also send a letter to him urging the exercise of this power. However, it would be best if you drafted your own letter based on the one below but expressing your one major concern (maybe Compulsory Licensing?). It is best not to flood his email box (presidentofindia at rb.nic.in) or fax (91-11-23017290/23017824), so we suggest you send your letters in the course of the next few days. In solidarity, Raja Kumar For Lawyers Collective HIV/AIDS Unit Affordable Medicines & Treatment Campaign -----------Text of the letter ------------ 24 March 2005 Dr. APJ Abdul Kalam President of India Rashtrapati Bhavan New Delhi 110004 Fax: 91-11-23017290, 23017824 Dear Dr. APJ Abdul Kalam We, who represent Indian health movements, write to you with the deepest concern about the recent passing of the Patent (Amendment) Bill 2005 in Parliament. On 21 March 2005 on the occasion of conferring Outstanding Parliamentarians Awards, you mentioned that India’s parliamentary democracy is creating doubts in the public eye due to the alleged tradability of parliamentary seats. In a similar vein, we too believe that parliamentary processes in India are being seriously harmed by a lack of democratic, transparent actions that deny an opportunity to reflect the peoples’ aspirations and address their needs, as reflected in the passing of this law. As we have been trying to explain to our representatives in Parliament, with the passing of this law the Rights to Life and Health of all persons in India and abroad (particularly in the least developing countries), will be severely compromised. We believe that the World Trade Organisation’s product patent regime, in any event, will compromise the right to health by fuelling an unconscionable increase in prices of essential medicines in the long run. We would like to bring to your notice that the Indian government’s aim of providing anti-retrovirals 25,000 persons living with HIV/AIDS by 2004 and 100,000 persons by 2005 has not been met. Only 4000-odd persons have been provided these medications till date. Now the Indian government has revised its programme to provide anti-retrovirals to only 25,000 persons by end-2005. This has occurred in the context of drugs, which are not available at affordable prices even with a generic drug industry in India selling at the cheapest prices in the world. With the patent regime under the new law, prices are bound to go up as is evident in countries such as Pakistan, which already has such a regime and where medicine prices are 10-fold the cost of those in India. Indeed, we in India have already seen how transitional provisions have resulted in the prices of life-saving cancer drugs such as Novartis’s Gleevec skyrocketing to over 1.2 lakhs per month, a cost that is out of reach for almost all Indians. To add to this the Patent (Amendment) Bill 2005 introduces provisions, which are not required by the WTO regime. In particular we bring the following to your notice, based on the last set of amendments we received: 1. PATENTABILITY CRITERIA: As defined in the Bill, a number of issues are introduced which will only restrict cheap drugs: (a) the definition of ‘inventive step’ – allowing economic significance to be a sole factor in determining patentability; (b) The use of the word ‘mere’ throughout Section 3, leaving it open for litigation; (c) in Section 3(d) and the supporting explanation, providing for an “enhancement of a known efficacy” and “unless they differ significantly in properties with regard to efficacy”. This allows for patenting of new use. 2. COMPULSORY LICENSING: In order that accessible, affordable drugs are available within India and abroad in a time-bound manner and with fixed royalties Compulsory Licensing procedures should be made swift and simple. However, under the Bill, Compulsory Licensing is permissible only after a period of 3 years after grant of the patent. Even after this period, procedures are complex, cumbersome and would take unduly long to get a generic version out onto the market. We ask you to send this back with recommendations that compulsory licenses may be applied for and granted immediately, not after 3 years, at a capped royalty rate of 4%. 3. Permitting generic manufacturers to continue production of generic drugs if they make a ‘significant investment’ which is again not defined. This can potentially be a tremendous hurdle to overcome to expedite access to life-saving drugs. Through this letter we urge you to exercise your powers under Article 111 of the Indian Constitution and send the Patent (Amendment) Bill 2005 back to Parliament for reconsideration of the amendments as indicated above in order that the interests of public health in India and globally are given priority. With warm regards, Send instant messages to your online friends http://uk.messenger.yahoo.com -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050330/cd1223be/attachment.html From anujbhuwania at gmail.com Wed Mar 30 13:18:39 2005 From: anujbhuwania at gmail.com (Anuj Bhuwania) Date: Wed, 30 Mar 2005 02:48:39 -0500 Subject: [Commons-Law] Drafting patents, the new BPO Message-ID: http://us.rediff.com/money/2005/mar/29bpo.htm Drafting patents, the new BPO Alok Aggarwal March 29, 2005 During 1997-2001, the US Patent and Trademark Office (USPTO) granted almost half a million patents and over 700 organisations were granted more than 100 patents each during these five years. Overall, more than 3,53,000 utility, plant and reissue applications were filed in 2004 alone and out of these, foreign applicants filed more than 1,59,000. Evalueserve estimates that as many as 5,00,000 patent applications will be filed with the USPTO in 2010. Within the US, the task of preparing, filing and prosecuting patent applications as well as that of performing other intellectual property work (preparing, filing and prosecuting trademark applications and copyrights, intellectual property or IP litigation and IP asset management) is being performed by approximately 30,000 attorneys and agents who are registered with the USPTO. In order to meet the rising demand for the additional IP work, Evalueserve predicts that this number will exceed 38,000 by 2010; otherwise, the corresponding prices will rise very sharply. Currently, many large organisations have in-house IP divisions that usually consist of agents, associates, lawyers and business development professionals who handle pretty much all kind of IP work. However, most small and medium-sized enterprises do not have such divisions, and even many large firms often outsource some -- or all -- of their IP work to external, US-based law-firms. To contain costs, many in-house IP divisions as well as stand-alone IP law firms have already started outsourcing some of their work (that is, drafting of figures, literature searches, prior art searches, and invalidation studies) to third parties within the US and some even to other countries. But since the corresponding budgets (for IP creation and maintenance) are likely to grow only at the rate of inflation, companies are beginning to look for cost savings without jeopardising quality in any significant way. Further, since a lot of research and development will be done in emerging countries such as India and China, many companiesare beginning to explore the potential of offshoring IP services to third parties, particularly those that are located in low-wage countries such as India. We estimate there were approximately 280 IP professionals in India in December 2004 who were providing various kinds of patent-related services to US end-clients, including literature searches and prior art searches, technology and patentability assessment, patent claim mapping, and so on. We predict that this number is likely to grow six-fold by the end of the decade. Various models seem to be emerging to deliver such services. These include captive centres set up by US law firms and their subsidiaries. Currently, Indian law does not allow foreign law firms to practice in India. Hence, some law firms in the US and India are setting up subsidiaries so that they do not practice law in India but provide such IP services only for export purposes. For example, Schwegman, Lundberg Woessner and Kluth -- a law firm that is headquartered in Minneapolis -- has set up two captive centres for one of its subsidiary, Intellevate, that are located in Delhi-Gurgaon and Bangalore. Intellevate currently has over 80 professionals in India that are involved in prior art searching and patent proof reading and soon they will be providing most -- if not all -- of the services mentioned earlier. Another example of this is Nishith Desai and Associates, an Indian law firm with offices in Mumbai, Bangalore and Palo Alto, whose subsidiary IPPRO has over 10 professionals located in Mumbai. And, yet a third example is Patent Metrix, an Irvine-California-based law firm, which has an Indian subsidiary with 15 to 20 professionals in India. Another good example is General Electric that has more than 60 IP professionals (within its GE Research and Development centre in Bangalore) and these professionals seem to be involved in most, if not all, of the services listed. In other cases, a few US-based law firms have started joint ventures with their counterpart law firms in India. A good example is Cantor Colburn, Esq that has joined hands with Lall and Sethi, Esq in India. However, since most joint ventures generally fail -- especially in India -- one needs be cautious while treading this path. In addition, there are third party vendors that provide such services to law firms. Apart from this, there are also various service models. In one case, the invention disclosure is directly sent to an offshore IP services' company, say in India. This company assigns one or more IP professionals who work in close coordination with the inventor(s) to appropriately draft the complete specifications and claims and prepare all drawings. The "final" draft of the patent application is then reviewed, modified and filed by the client's US patent attorney or by a US patent attorney contracted by the Indian IP services' company. In this model, the US attorney typically spends eight to 10 hours. Alternate models require the US patent attorney draft the claims whereas the offshore IP services' company draft the background, provide the supporting specifications, draft the summary and abstract, and prepare the figures. Again, the "final" draft of the patent application is reviewed, modified and filed by an appropriate US patent attorney or agent, who usually ends up spending 10 to 12 hours or more (per application). Besides helping the US patent attorneys in drafting patent applications -- in part or in its entirety -- many Indian IP services' companies are also providing a technical assessment of the prior art cited by the patent examiner during the prosecution process. Furthermore, depending upon the requirements of the US patent attorneys, these companies are providing anywhere from the basic material for drafting the response to the corresponding professionals drafting the complete response to the examiner's objections themselves (which is then reviewed, modified and filed by the US patent attorney). However, since the "unit" of this work is small, the savings in cost are not as significant as during the patent drafting process. Nevertheless, even in these situations, such offshore IP services' companies can do the "heavy lifting" by studying the prior art cited by the patent examiner and they can usually save substantial time for the US patent attorney who can now use this time for doing "higher" end work, that is, IPlitigation. The author is chairman of Evalueserve Inc, a global professional services firm. Powered by Business Standard From prabhuram at gmail.com Wed Mar 30 14:57:03 2005 From: prabhuram at gmail.com (Ram) Date: Wed, 30 Mar 2005 11:27:03 +0200 Subject: [Commons-Law] When David Steals Goliath's Music Message-ID: <68752c9f0503300127ddf101b@mail.gmail.com> >New York Times When David Steals Goliath's Music he battle over online music piracy is usually presented as David versus Goliath: the poor student in his dorm hunted down by a music conglomerate. It is easy, in that matchup, to side with the student. But when the Supreme Court takes up the issue this week, we hope it considers another party to the dispute: individual creators of music, movies and books, who need to keep getting paid if they are going to keep creating. If their work is suddenly made "free," all of society is likely to suffer. The court hears arguments tomorrow in a suit by music and movie companies against Grokster, which makes "peer to peer" software that allows Internet users to exchange songs and other computer files. At least 90 percent of the material "shared" on Grokster, and perhaps more, is copyrighted. Grokster gives away the software, but it sells advertising aimed at the millions of people who use it. Many big entertainment companies are backing the suit, along with marquee-name musicians like the Eagles and the Dixie Chicks. But so are some creative professionals - represented by groups like the Authors Guild and the Professional Photographers of America - for whom even a few thousand dollars in royalties makes a big difference. The technology community has rallied to Grokster's defense. Its most radical members argue that "information wants to be free" online and disparage the whole idea of intellectual property. A more modest argument, and one Grokster relies on in court, is that if it loses, there will be a chilling effect on technological innovation. The legal case against Grokster is far from a slam-dunk, and we have been wary of it in the past. The court ruled, in a landmark 1984 case, that Betamax video recorders were legal even though they were used to copy copyrighted material, because they had significant legal uses. It is true that there are legal uses for Grokster - not every file exchanged is copyrighted. But it is notable how much illegal use predominates, and how much its business model relies on theft. The founders wrote copyright protections into the Constitution because they believed that they were necessary for progress. Movies, music and books require investments of money and time. If their creators cannot make money from them, many will be unwilling or unable to keep producing. Or they may have to finance their work in troubling ways, like by building in product placements or taking money from donors with agendas. Grokster's supporters are justified in worrying that if the courts are too quick to rein in new technology, innovation can be stifled. They are also right to point out that copyright has sometimes been given too much protection, notably in the Copyright Term Extension Act, which gratuitously added 20 years to existing copyrights. But these concerns do not erase the continuing importance of intellectual property, which is unquestionably under assault. Both the court and Congress should be sensitive to evolving technologies. But they should not let technology evolve in a way that deprives people who create of the ability to be paid for their work. -- Prabhu Ram, Max-Planck-Institut for Intellectual Property, Competition and Tax Law, MarstallPlatz 1, 80539 Munich GERMANY Tel: + 49 89 24246226 Mob: + 49 17629830521 Web: http://infoserve.blogspot.com From karim at sarai.net Wed Mar 30 15:22:42 2005 From: karim at sarai.net (Aniruddha Shankar) Date: Wed, 30 Mar 2005 15:22:42 +0530 Subject: [Commons-Law] char soh bees In-Reply-To: <42426814.4070705@sarai.net> References: <42426814.4070705@sarai.net> Message-ID: <424A76EA.4090709@sarai.net> -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 Aarti wrote: > Also, how does the language of the law enter our language. For instance > 'char soh bees' (420) is a common phrase to describe a no-good > character, but it is also section 420 of the IPC which relates to > dishonesty, cheating, petty fraud etc. what are other similar phrases in > common usage which speak of the law? I was wondering if anyone might be > able to help me with this. I right now cant think of any other phrase > except char so bees, but I'm sure there must be others. if you've gotten a letter purportedly from an underminister in some faraway land who is willing to give you the bulk of a vast fortune, if you open a joint account with a certain deposit.. such as "I am Mr.Abel Moses a Regional Director with a North Atlantic Security Sarl with Regional Office in Lome-Togo.We had a foreign client named MR LEVY SHIMONY, who deposited US$30.5mill!on United States Dollars with our Company here in Lome-Togo." and "This does not have any risk attached to it as all the internal documentations will be handled by me." :) then you're facing what's called a 419 scam. Here, 419 refers to the section of the Nigerial Penal Code that punishes fraud. Being an erstwhile colony of a strange island off the coast of France, just like India, the Criminal Code Act of Nigeria [1] and the Indian Penal Code's section 420[1] and quite similar. the term 419 scam is widely known across the internet and some spam filters even go so far as to filter out any email from Nigeria! interesting. cheers, K [1] http://www.nigeria-law.org/Criminal%20Code%20Act-Part%20VI%20%20to%20the%20end.htm#Chapter%2038 [2] http://www.indialawinfo.com/bareacts/ipc.html#_Toc496765304 -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.4.1 (GNU/Linux) Comment: Using GnuPG with Thunderbird - http://enigmail.mozdev.org iD8DBQFCSnbqhJkrd6A3rSsRApYzAKCr/xhjezXUv5xLQlCcS1qFyWe6HgCgsimn X6Ig5DXmbY2bSfIhP0Jf84s= =QsB6 -----END PGP SIGNATURE----- From rakesh at sarai.net Wed Mar 30 18:36:26 2005 From: rakesh at sarai.net (Rakesh) Date: Wed, 30 Mar 2005 18:36:26 +0530 Subject: [Commons-Law] [Fwd: [Internal] Medianagar02: Bibliography] Message-ID: <424AA452.50806@sarai.net> -- Rakesh Kumar Singh Sarai-CSDS Rajpur Road, Delhi 110054 Ph: 91 11 23960040 Fax: 91 11 2394 3450 web site: www.sarai.net web blog: http://blog.sarai.net/users/rakesh/ -------------- next part -------------- An embedded message was scrubbed... From: Subject: [Internal] Medianagar02: Bibliography Date: Wed, 30 Mar 2005 12:00:14 +0200 Size: 5273 Url: http://mail.sarai.net/pipermail/commons-law/attachments/20050330/f90d2628/attachment.mht From prabhuram at gmail.com Wed Mar 30 19:01:47 2005 From: prabhuram at gmail.com (Ram) Date: Wed, 30 Mar 2005 15:31:47 +0200 Subject: [Commons-Law] Taking a shot at Tequila monopoly through "Temequila" Message-ID: <68752c9f0503300531bc9ab28@mail.gmail.com> Mexico is protesting the arrival of an agave distillate called "Temequila," which the Mexican Tequila Regulatory Council maintains is confusingly similar to tequila, the country's national drink. More in the story below- Ram >From Associated Press Taking shot at tequila monopoly By Daisy Nguyen Associated Press Monday, March 21, 2005 - TEMECULA - J.B. Wagoner planted blue agave around his 25-acre property as an inexpensive landscaping alternative to water-loving citrus or avocado groves. But now he's found another use for the plants. After years of research and experimentation, Wagoner plans to use the 1,000 agaves to produce tequila in hopes of cashing in on the distilled spirit's growing popularity. "I figure in the worst case, I'll have a nice landscape," Wagoner said. "In the best case, I'll create a new market for American-made tequila." Tequila consumption increased 5.8percent in 2004, with Americans downing 8.5million cases or about $1billion worth, according to the Distilled Spirits Council of the United States. Despite the demand, there is an obstacle to Wagoner's plan. Tequila is as sacred to Mexico as champagne is to France, and international trade laws forbid use of the name tequila unless it's made from blue agave in the Mexican state of Jalisco. Wagoner, who claims to be the first maker of blue agave liquor in the United States, came up with a solution. He labels his liquor "Temequila," after the city of Temecula, where it's produced. Wagoner also put an American flag design on the 750-milliliter bottles, scheduled to hit the market in April. The $58 price tag is aimed at sophisticated consumers who are driving the luxury spirits industry. "We've already gotten a surprising level of demand for the product from people looking for something new and different," he said. Shawn Kelly, spokeswoman for the distilled spirits council, said demand for high-end liquor is being driven by a stronger economy, a re-emerging "cocktail culture" and new laws in several states allowing liquor stores to stay open longer. Although tequila sales in the United States ranked ninth in 2004 behind vodka, rum, gin, whiskey and other liquors, high-end tequila brands saw big growth at 15.4percent. "People are drinking less beer and more vodka, whiskey and rum," said Tom Pirko, president of Bevmark, a beverage consulting firm in Santa Barbara. "It's a great time to be in the spirits business." Wagoner said he spent six years learning to grow and process blue agave, which involves fermenting its sweet nectar into wine, then distilling it into liquor. Pirko warned that Wagoner will face challenges in trying to gain a share of the market. "Authenticity is a real issue," he said. "Tequila is made in Mexico by people who have made it for many years." Wagoner seemed unconcerned. "There are some 50 different kinds of tequilas from Mexico," he said, "but there's only one that's 100percent agave tequila, made in the USA." -- Prabhu Ram, Max-Planck-Institut for Intellectual Property, Competition and Tax Law, MarstallPlatz 1, 80539 Munich GERMANY Tel: + 49 89 24246226 Mob: + 49 17629830521 Web: http://infoserve.blogspot.com From fuller at xs4all.nl Wed Mar 30 15:34:29 2005 From: fuller at xs4all.nl (matthew fuller) Date: Wed, 30 Mar 2005 11:04:29 +0100 Subject: [Commons-Law] van Schijndel & Smiers: IMAGINING A WORLD WITHOUT COPYRIGHT Message-ID: IMAGINING A WORLD WITHOUT COPYRIGHT The market and temporary protection a better alternative for artists and the public domain An essay Marieke van Schijndel & Joost Smiers1 Hard to imagine Some serious cracks are surfacing in the system of copyright, as we have known it in the Western world for a couple of centuries. The system is substantially more beneficial for cultural conglomerates than for the average artist; a situation that cannot last. Furthermore, it seems inescapable that digitisation is undermining the foundations of the copyright system. It must be acknowledged that several authors have recently presented analyses of the untenability of the contemporary system of copyright. Yet, most of their observations only allude to - but do not address - what we deem the most fundamental question of all: if copyright is inherently unjust, what could come in their place to guarantee artists - creative and performing - a fair compensation for their labours, and how can we prevent knowledge and creativity from being privatised (Bettig 1996; Bollier 2003: 119-134; Boyle 1996; Coombe 1998; Drahos 2002, 2002a; Frith 2004; Lessig 2002, 2004; Litman 2001; Perelman 2002; Vaidhyanathan 2003). It is time to move beyond merely criticizing copyright. The pressing question is: which alternative can we offer artists and other cultural entrepreneurs in rich as well as poor countries that benefits them, and that brings the increasing privatisation of creativity and expertise to a halt? Our goal in this essay is to develop such an alternative, and to move beyond any notion centred on private intellectual property rights. This text is an essay. We cannot erase the product of centuries of Western thought on intellectual property rights with a single stroke of the pen. It is hard to imagine for Western man that a world without copyright could still yield films, theatre productions, novels, music pieces, paintings, and multimedia spectacles; even though people born and living in non-Western cultures find this a lot less hard to believe (Boyle 1996: xiv)! In this essay we therefore present a thought-experiment. We begin by making a few observations, followed by a proposition, an alternative. Once we have arrived there, it becomes fruitful to put our ideas to the test. How would our alternative provide an income for artists, their patrons, and producers in various artistic industries and in various positions? It must be clear that we aspire only to sketch the contours of an approach that will require further development and study. Without any doubt, the analysis we present for copyright is transferable to other systems of intellectual property rights, such as patents and trademarks. These systems influence, as well, the creation, production, distribution and promotion of works of art of different ilk. Some observations A first observation must be that the present Western copyright system pays little attention to the average artist, especially those in non-Western societies. The system disproportionately benefits a few famous artists and especially a few major enterprises, but it has little to offer for most creators and performers (Boyle, 1996:xiii; Drahos 2002: 15; Kretschmer 1999; Kretschmer and Kawohl 2004: 44, Vaidhyanathan 2003: 5). The copyright system does enable a handful of cultural enterprises to dominate the market, and to withdraw substantive diversity from the public eye (Bettig 1996: 34-42, 103; Boyle 1996: 121-5; Coombe 1998: 144; Drahos 2002:ix-x, 74-84; Litman 2001: 14; McChesney 1999). Copyright has thus become a mechanism for a few cultural conglomerates to control the broad terrain of cultural communication. Something that has been derailed to such a large extent, and that hurts the interests of most artists and the public domain, can no longer be cut back to normal proportions. For most artists, the profits deriving from copyright do not form much of an incentive to create and perform artistic work, simply because they hardly receive the proceeds. This has been the case in the past, it still is the case in the present, and it holds for almost every culture. From an historical perspective, we may note that the concept of private intellectual property rights has traditionally been absent from most cultures. Yet, there have always been artists who created and performed works (Bettig 1996: 25, 44, 171; Boyle 1996: 38-39). The incentive argument - artists stop their labours if they stop receiving copyright payments - therefore does not hold: 'Copyright today is less about incentives or compensation than it is about control.' (Litman 2001: 80) 'Firms in the creative industries are able to 'free-ride' on the willingness of artists to create and the structure of the artists' labour markets, characterised by short term working practices and oversupply, make it hard for artists to appropriate awards.' (Towse 2003: 10) One may add to this observation that 'value of copyright royalty rates is decided in the market place and it is therefore artists' bargaining power with firms in the creative industries determines copyright earnings. Artists' bargaining power is, however, considerably weakened by the persistence of excess supply of creative workers to the creative industries... As with artists' earnings from other art sources, the individuals distribution of copyright earnings is highly skewed with a few top stars earning considerable sums but the medium or 'typical' author earning only small amounts from their various rights.' (Towse 2003: 11) For non-Western countries, the Western intellectual property rights system is nothing but a straight-out disaster. Their knowledge and creativity is obfuscated from them, and they have to pay dearly to receive the fruits of these sacrifices in return. This even explains the unfavourable debt position of these countries to some extent (Boyle 1996: 34, 125-130, 141-142; Chomsky in Smiers 2003: 77; Coombe 1998: 208-247; Correa 2000; Grosheide 2002; von Lewinski 2004; Mitsui 1993; Perelman 2002: 5-7; Rifkin 2000: 229-232, 248-253; Shiva 1997, 2001). Let's face the reality that digitisation is axing the roots of the copyright system (Alderman 2001; Lessig 2002; Litman 2001: 89-100, 112-116,151-170; Motavalli 2002; Rifkin 2000: 218-229; Schiller 2000; Vaidyanathan 2003: 149-184). By abolishing copyright, the process of creative adaptation will once again enjoy every imaginable opportunity. This is all the more interesting in the digital age. After all, digital sampling enables the production of creative works, much like those have always been produced. How? Indeed, by finding inspiration, themes, or certain forms of expression in works previously produced, long ago or yesterday. Digitisation enables this lending and borrowing of inspiration, and is helpful as well from another perspective. In the world of copyright there has always existed a bizarre distinction between an idea and the expression: however, in the digital age a work is no longer fixed and separating idea from expression is no longer possible. The artificial distinction and the endless discussions about it have become superfluous. Another observation, linked to what creative sampling makes possible, is that the philosophical basis of the present system of copyright is founded on a misunderstanding, notably that of the sheer boundless originality of the artist, regardless of whether he or she is a creator or a performer. But let us keep a keen eye on reality. One always builds on the labours of predecessors and contemporaries. Subsequent artists add something to the existing corpus of work, nothing more and nothing less. We may highly respect and admire those additions, but it would be incorrect to provide a creative or performing artist, or his or her producers, with an exclusive, monopolistic claim to something that has largely sprung from knowledge and creativity in the public domain, and that is indebted in important respects to the labours of predecessors (Barthes 1968; Boyle 1996: 42; 53-59). Of course, we are well aware that an artist receives a copyright for the addition he or she makes to what can be found in the public domain of knowledge and creativity. Again, this addition can be very impressive (or banal). But it is quite a stretch to extend him or her an exclusive, monopolistic property right for that addition, guaranteed until 70 years after his or her death, and which can on top of that be transferred to an individual or corporation that had nothing to do with the creative process in the first place. The credibility of the system really starts to fall apart when we realize that the author and his or her rightful claimants can forbid almost anything that resembles the copying of "their" work (Coombe 1998: 92-98). The development of the public domain of creativity and knowledge deserves a reappraisal. Besides, subsequent artists must be enabled to delve into that domain in order to find a supply of artistic materials that they can build on. That road will be closed when artistic materials from the present and past fall into private hands, something that is occurring to an increasing extent under the present system of copyright. This privatisation of our past and present cultural heritage is devastating for the further development of our cultural life (Locke in Boyle 1996: 9). In fact, an "author-centred regime can actually slow down scientific progress, diminish the opportunities for creativity, and curtail the availability of new products" (Boyle 1996: 119; also see: Perelman 2002: 7-9). For cultural conglomerates, which control the bulk of the property rights worldwide, the possibility to forbid reproduction is exceptionally interesting: it enables them to dominate broad areas of artistic expression in which no contradiction, no counter-melody, no counter-image, in short no dialogic practice is tolerated (Coombe 1998: 42, 46). Yet, we have to realize that "culture is not embedded in abstract concepts that we internalise, but in the materiality of signs and texts over which we struggle and the imprint of those struggles in consciousness. This ongoing negotiation and struggle over meaning is the essence of dialogic practice. Many interpretations of intellectual property laws squash dialogue by affirming the power of corporate actors to monologically control meaning by appealing to an abstract concept of property. Laws of intellectual property privilege monologic forms against dialogic practice and create significant power differentials between social actors engaged in hegemonic struggle" (Coombe 1998: 86). It is prerequisite for any democratic society that a surplus of opinionating and emotion-evoking claims can be contradicted (Bettig 1996: 103-106). The broad copyright as we know and have it virtually renders that difficult and sometimes impossible. Alternatives? After this summation of the fundamental shortcomings of the copyright system, it may not come as a surprise that we feel the need to investigate alternative ways to protect the public domain of knowledge and creativity, and to assure many artists and other cultural entrepreneurs a fair income for their labours. As stated, this type of investigation only happens too sporadically. Recently a few scholars and policymakers have presented alternatives to the system. But their proposals have many disadvantages and they therefore do not constipate a real alternative to the copyright regime. The most far-reaching reorientations have been systems like the General Public License and the Creative Commons (Bollier 2003: 27-30; 99-118; Boyle 1996: 132-133; Lessig 2002 and 2004: 282-6). The idea behind this approach is that A's work must be available for use by others, without them being obstructed by prevailing copyright. In turn, the other cannot appropriate the work. Why not? The Creative Commons entails that A supplies some kind of public license for his or her work: go ahead, do with the work as you please, as long as you do not bring the work under a regime of private ownership. The work is thus subjected to a form of "empty" copyright. This "hollow" copyright constitutes the most extreme option the author has under the Creative Commons regime. More often, however, the author opts for the choice "some rights reserved", for example that the usage of a work is restricted to not for profit activities. It is an uncertain form of contract law that will keep lawyers busy. The sympathetic aspect of Creative Commons-like constructions is that it becomes possible, to a certain extent, to withdraw oneself from the copyright jungle. It is of course always laudable to start a new world order on an island, and there is no scepticism in this statement. We hope that more and more artists will renounce the system of copyright that disadvantages them so badly, and begin hollowing it out by embracing the idea of a Creative Commons. Without any doubt this systems is helpful for museums and archives that wish to spread their stocks of cultural heritage to the public but also like to avoid it becoming copyrighted or used inappropriately by others. As long as the system of copyright is still in place, the Creative Commons appears to be a useful solution that may even serve as an exemplar. But there are some strings attached. The Creative Commons does not paint a clear picture of how a diverse set of artists from all over the world, as well as their producers and patrons, might generate an income. But we have to prepare an answer to that question. Most artists will not dare to put the existing copyright regime to rest until they have been offered a clear view of a better alternative - even though the present regime only has smoke and mirrors to offer. That is easily understandable. A second drawback of Creative Commons-like approaches is that they do not fundamentally question and challenge the copyright system. The Creative Commons License suggests that the author wants to exercise some form of control, nonetheless. Another quite essential objection to the Creative Commons-like approaches is that they involve only those artists who are willing to adhere to this philosophy. Cultural conglomerates, which have the ownership of big chunks of our cultural heritage from past and present, however, will not. This downgrades and limits the sympathetic idea of the Creative Commons. Not free of contradictions is the fact that one of the most outspoken advocates of Creative Commons, Lawrence Lessig, is a strong adapt of the idea that knowledge and creativity can be owned as individual property (Lessig 2004: XIV, XVI, 10, 28, 83). Isn't the title of his 2004 book Free Culture a bit misleading? Below we will argue that there is much to say against this private property claim on knowledge and creativity. A second alternative for copyright is connected to different forms of art created and produced in a collective manner (regardless whether it concerns more traditional or contemporary works) as is the case in most non-Western countries. In those societies the individual approach of the Western copyright system does not fit the more collective character of creation and performance. If one stays within the paradigm of the private ownership of knowledge and creativity, it is obvious that a concept like collective ownership comes to mind. Is it not possible to grant so-called "traditional" societies a tool that resembles copyright, but is in fact collectively owned? Would this not enable them to protect their artistic expressions from inappropriate use and/or guarantee their artists an income? The problems for effectively introducing a system of collective intellectual ownership rights are abundant. For instance, one may wonder who represents the community and is able to speak on behalf of the community. It is not by definition the case that everybody agrees on how to deal with artistic creations of the past and present. Copyright is about the exploitation of works, but many people in those societies may consider this a blasphemy, or would not like to see their works being used in specific contexts. The appropriation of knowledge and creativity is something that even pinches in the Western world, and it all the more does so in countries where this strange system has never existed, and where artists use each other works, and so on and so forth, like what was the case in the Western world before the introduction of the copyright system. There is, thus, even without considering the position of Western cultural conglomerates reason to understand why the polite, weak and bleak trials of elaborating a collective intellectual property system have failed thus far. Is the tweaking of the current system a solution for the problems as we have described them? Several scholars, critical to the present copyright system, propose optimising it. Their contributions vary. Some argue for the reestablishment of the fair use principle, which has suffered enormously over the last decade, or making copyright solely applicable to real authors, creators and performers. Others favour a much shorter period of protection, for instance fourteen years. Again, others believe there is no real problem in the European context, because in those countries the collecting societies put aside a portion of the copyright earnings for cultural projects and their distribution scheme favours individual artists in comparison to the Anglo-Saxon copyright system. Unfortunately, it is unthinkable to bring the current system back to normal proportions, because it is not in the interest of the main partners of the system, the cultural conglomerates, to assist in this quest. On the contrary, they have been very eager and highly successful in extending and broadening the copyright system. Moreover, digitisation is greatly impacting the functioning of the system. At what point must a society decide that when almost everybody is participating in an "illegal" practice - like P2P music or film exchange - it can no longer be considered illegal (Litman 2001)? And even if the European collecting societies have a higher moral ground than those in the Anglo-Saxon world, even then the problem of the individual appropriation of knowledge and creativity, which is the basis of our critique of the system, continues to exist. In the next sections we address this issue more thoroughly. Artists, producers and patrons: entrepreneurs Before presenting our proposal we must observe that artists are inclined to sell their work on the market and - if it all works out - make a living for themselves. Artists have always been merchants and small shopkeepers. They live off an acquisitive audience that wants to admire, enjoy, and buy their produce. To that audience also belong institutional buyers like kings, churches, Maecenases, labour unions, banks, hospitals, and other societal institutions (Hauser 1972). This conclusion, as will be demonstrated further on in this essay, will provide us with something to go by while developing an alternative for copyright. Artists, as well as their producers and patrons, thus apparently are entrepreneurs. This requires a risk-prone mentality, and it involves competition, under the condition that real competition exists indeed, as much as possible for many artistic expressions and their artists. The observation that artists, and their producers and patrons are entrepreneurs makes one wonder what the decisive reason is for reducing the entrepreneurial risks of cultural producers, because this is precisely what copyright does. Copyright renders a product exclusive, and provides the entrepreneur with a de facto monopoly. This system of institutionally protected gifts is seemingly bizarre in an era in which even cultural conglomerates themselves herald the blessings of free market competition. Major entrepreneurs in cultural sectors bargain for ever-stricter intellectual property rights in the form of extensions and expansions of existing copyright legislation, but this is completely at odds with the so-called rule of the free market! We also observe the exact same phenomenon in the area of patent law and other intellectual property laws such as trademarks, database rights, plant breeder rights and design rights (Drahos 2002; Perelman 2002; Rifkin 1998, 2000; Shiva 1997, 2001; Shulman, 1999). Before we try our luck by presenting a new system, we must first identify the locus of the impulse to create. That brings us to the following summation, a three-pronged road. One possibility is that a work is being commissioned. The second option is that the artist him- or herself takes the initiative to make an artistic work, possibly in collaboration with multiple, differentially endowed creators and performers. Thirdly, a producer can be a binding factor and bear the responsibility and risk involved in an artistic venture. In all three cases - the initiative coming from a patron, someone who commissions; from one or several artists themselves; or from a producer - there is a person or an institution that intentionally makes itself responsible and accountable for creating or performing a certain artistic work. To be responsible and accountable not only implies undertaking a broad range of activities to give the artistic project momentum, but also to bear, amongst other things, the financial risks involved. The initiator then becomes an entrepreneur and bears the risk that unavoidably comes with entrepreneurship. In our alternative for copyright it is not the artist who takes centre stage, but the entrepreneur, regardless of whether he or she is an artist, a patron, or a producer. The solution: the market and temporary protected usufruct While recognizing the fact that artists, patrons and producers are cultural entrepreneurs, we find that they can be confronted with three types of situation, each of which grants a specific reaction or option. What are those three options in our proposed solution? First, cultural entrepreneurs experience a competitive advantage, for example by being the first to market a product. Ancillary forms of protection are then rendered unnecessary. Secondly, in some cases high risk and high investment are involved in the realization of certain creative works. Temporary protected usufruct is granted to offset market failure. Third, the market as of yet lacks the resilience to finance a product and there are many reasons making it desirable for it to flourish. Subsidies are than distributed. In all three cases or options the works fall immediately in the public domain. This is the key principle of our proposed solution. Let's take a closer look at those three options. What are the contours of the system that we find worth exploring? The core of the matter is that we distance ourselves from the present system of copyright, as was probably clear by now. What does that yield? As stated, the protective corral of property rights that is artificially erected around a creative work will disappear. The consequence, thus, is that the work - regardless of whether it involves a (new) creation or a performance - will have to be marketed from the moment of its announcement onwards. We will nuance this position further on in the essay when we discuss the second option. What is essential is that the entrepreneurial patron, artist, or producer obtains a competitive advantage by creating or performing a work (Picciotto 2002: 225). This renders additional protection unnecessary. This is the first option. What we have in this first option is a first-mover advantage. The first person to bring a work to market can use the advantage to reap revenues. The entrepreneur thus has "lead-time." What we propose is not completely new. In 1934 Plant stated 'that copyright encourages moral hazard in publishers (firms in the creative industries) without sufficiently rewarding authors (creators) who supply the creative input. He believed that publishers should rely on the temporary monopoly of lead time to establish new products in the market.' (in Towse 2003: 19) This time gives the first mover a lead over possible competitors, the opportunity to skim the market for the new cultural product, ask a good price for it, and thus earn a return on investment. After all, it will take several months before, say, the same play or music piece will see its opening night elsewhere or the same chair is eligible for production in another location. It should be understood that the work falls immediately in the public domain; thus can be used by others as well, and everybody is free to adapt this work creatively. The competitive advantage that most artists possess in one form or other is put at the very core of our new system. If such advantages are allowed and able to do their work, ancillary forms of protection, like copyright, will be unnecessary. The counter argument, however, might be that, with an eye on digitisation, reality is that lead-time is only a couple of minutes or perhaps hours (Towse 2003: 19)! Does this mean that there are almost no works that can benefit from a competitive advantage? We do not believe so. Apart from the first-mover advantage, many artists are able to add value or create advantages in other ways. In order to understand this, we should keep in mind, that cultural production and distribution will reshuffle considerably after the abolishment of copyright. For instance, in the field of music concerts and performances will become much more important, also as a source of income for the artists. Live, direct contact with an audience generates inimitable value. Performing qualities are even now, in the present era, of decisive importance for long and lasting careers of musicians. This is what gives them a good reputation. Reputation creates value. Reputation has a signalling effect. It indicates guaranteed quality. Customers are more loyal and are willing to pay higher prices for cultural products from artists with a good reputation and it makes them aficionados (Fombrun 1996). In the part of this essay where we test our proposals in the different fields of the arts - see below - we will come back to how cultural production and distribution will change in a world without copyright. But let us at this point stress that service qualities of artistic works will become much more important than the individual product. From what we have stated before about the philosophically doubtful concept of the originality of the author, it is clear that we claim that any artistic creation or performance belongs to the public domain. It is derived from the commons, based on the works of predecessors and contemporaries, and therefore, from its moment of conception onwards it takes its place in the public domain. We use the concepts public domain and commons without distinction. However, we know that in legal traditions there may be differences between the two concepts. We define the public domain or the commons as the space in any society that belongs to all of us and can be used by all of us. It is a misunderstanding to think that the commons, or the public domain, is an unregulated space. Of course not: always in history and in all societies those common spaces have been regulated one way or another, for example on the conditions of its usage. In our alternative we return to the commons what has always belonged to it - no more and no less. We give back to all of us what has been privatised in the fields of creativity and knowledge in the Western world over the last centuries (Hemmungs Wirtén 2004: 133,4). The second option takes into consideration that sometimes the realization of a certain work requires a rather substantial up front investment. Think of movie productions, for example, which can easily rake up several million euros in costs. Another example is writing a book; an author has to work on such a large project for a considerable period of time, but the revenues will not begin flowing until (much) later. It could also be that the risk of an undertaking is too great to be borne privately. Often high investments, high risks and uncertainty go hand in hand. This can lead to what economists call 'market failure' (Towse 2004: 56). This is an economic condition under which competitive markets have difficulty developing. State intervention is then granted. In these special cases, in which the process of selling is time consuming, or must consist of multiple transactions before an agreeable income has been reached, one can think of a temporary protected usufruct for the person taking the entrepreneurial risk. The cultural entrepreneur is offered temporal protection to harvest the fruits of his or her work. However, no private property emerges, as was the case under a copyright regime. The concept of usufruct is better known in societies under civil law than in those that are governed by common law, like the Anglo-Saxon parts of the world. Characteristic for usufruct is that one does not have the ownership of an item; however, one is entitled to the usage of the fruits of the item. If the item is, say, a house, the entitlement could be, for instance, the usage of the house without owning it. The person that holds usufruct is, for example, allowed to live there for free or to receive the proceeds of any rental activity. In our case, the item might be a book; from the moment of its publication it belongs to the public domain and the holder of the usufruct is entitled to the takings and receipts of the book. Under the present system of law, usufruct can only emerge when it is derived from an ownership title. What we envision is that the creative work, as we will argue below, exists only in the public domain, its ownership is shared amongst all, and thus belongs to the commons. Whoever enjoys the temporary usufruct of a certain artistic work, has thus received it from the public domain. The usufruct keeps unimpeded the freedom of everybody to adapt works of art - creations and performances - in a creative manner. The technical details concerning the implementation of this matter still will have to be worked out. De facto, the temporary usufruct implies that the costs of preparing the work, including the artist's wage, are spread out over a number of customers. But we will have to apply strict boundaries to the timeframe over which this applies. Hence, we speak of a temporary usufruct. In terms of its scope and duration, protection will be less than under present copyright regimes. In our approach an artistic work, whether creation or performance, immediately enters the public domain from its moment of conception onwards, as has been stated before; or better yet remains in it, because it derives from it to a large extent. Only, it may happen that the usufruct is protected for a certain period of time, to make the work profitable for the creator, performer, producer, or patron. At present, we do think of a period not extending beyond a year. A lot of economic research is required to possibly refine this period of temporarily protected usufruct, depending on the specific artistic discipline. However, this term of one year is not picked randomly. 'Of all the creative work produced by humans anywhere, a tiny fraction has continuing commercial value.' For instance, 'most books go out of print within one year.' (Lessig 2004: 134 and 225) This market reality supports our proposal of a strict time frame for protection. Of course, it might happen that even this temporary usufruct does not provide enough perspective on the ability to break even on certain artistic creations and performances. And with this we arrive at our final and third option: subsidies. It may happen that the market as of yet lacks the resilience to finance a certain type of artistic work but that there are various reasons making it socially desirable for this work to bloom and become available (for the sake of cultural diversity or because the public is still developing a taste for certain forms of expression, for example). In that case it is important that governments use subsidies and other facilities to enable the creation, performance, and diffusion of such works, for shorter or longer periods of time. In case of financing by the government, the work immediately becomes part of the public domain. After all, it appears absurd that publicly financed productions can become the exclusive property of a person or organization, as is presently the case in many countries with programs developed by their public broadcasting corporations. Commenting upon our alternative Is what we propose not some kind of dressed-down version of the present copyright system? One could say that. But there are remarkable differences between the copyright approach and our alternative, in which we first let market processes take their course, perhaps followed by a form of limited protection. First, under the regime of intellectual property rights, a protective shield of copyright becomes affixed to an artistic work by definition, from its moment of inception onwards. This does not hold true for our alternative, on the contrary. The maker, producer, or patron has a competitive advantage in the market by being the first to offer a certain kind of product: let markets be markets! Second, if it is somehow necessary to offer a certain kind of protection, as when a work could not be made profitable by any other means, then that protection will remain incomparably less elaborate in terms of its scope and duration than the sheer boundless system of institutionalised gifts with which the copyright system presently spoils the "holder of an intellectual property right." A period of about a year of usufruct is something quite different than 70 years after the death of the author, and also in the case of neighbouring rights the duration of the protection may be called generous. Under the present system of copyright, creative adaptation is at risk of being interpreted as a wrong and of being fined by the courts, so the scope and duration of the protection are immensely important. In our approach, creative adaptation is instead applauded and encouraged. There is also a third reason as to why what we propose is completely different from copyright. Our alternative redefines ownership and property of creativity and knowledge. Creative works are not owned in the same way as, for instance, a table. A table is the property of person A, but not at the same time also of person B, unless they are married. But this is not the case with artistic creativity and knowledge. After its usage by someone it has not been exhausted. It is a public good. That is as we have argued before, why those works of the intellect and of the creative mind belong to the public domain. Strategically it is important to underpin this public character of knowledge and creativity time and time again. Jack Valenti, the former president of the Motion Picture Association of America, once unhesitatingly said: 'Creative property owners must be accorded the same rights and protection resident in all other property owners in the nation.' (in Lessig 2004: 117) This quote makes clear why it is necessary to make a distinction between knowledge and creativity at one side and the ownership of, for instance, a house at the other side. They are not the same and should not be treated the same. Result: a new cultural market and a level playing field With our new system a new cultural market will emerge. The first observation is that with the abolition of copyright cultural conglomerates will lose their grip on the agglomeration of cultural products, with which they determine the outlook of our cultural lives to an ever-increasing extent. Because what will they lose? They have to give up control over huge chunks of the cultural markets. They lose the monopolistic exclusivity over broad cultural areas because everyone is allowed to exploit artistic materials that are not protected by temporary usufruct and absolutely no limitations are put on creatively adapting works of art. With these new conditions, the rationale is then lost for cultural conglomerates to make substantial investments in blockbusters, bestsellers, and stars. After all, by making creative adaptation respectable again and by undoing the present system of copyright, the economic incentives to produce at the present scale will diminish. However, it will not be forbidden for a cultural entrepreneur to invest millions of dollars or euros in, for instance, a film, game, CD or DVD. Of course not, but the investment will no longer be made under an endless wall of protection. There will once again be room to manoeuvre in cultural markets for a variety of entrepreneurs, who are then no longer pushed out of the public's attention by blockbusters, bestsellers, and stars. Those plentiful artists are more likely to find audiences for their creations and performances in a normal market that is not dominated by a few large players. There is not a single reason to believe that there would be no demand for such an enormous variety of artistic expressions. In a normalized market, with equal opportunities for everyone, this demand can be fulfilled. This increases the possibility that a varied flock of artists would be capable of extracting a decent living from their endeavours. A second observation is about cultural adaptation and how the market should be regulated with respect to fraud and plagiarism. We stress the fact that we do not like theft. We of course do not propose that X can attach his or her name to Y's book or film, suggesting to be the author of that work. That is plain misrepresentation or fraud. If that is found out, and that is bound to happen sooner or later, than the lazy fraudster will receive his or her fair penalty in the court of public opinion; we do not need a copyright system to accomplish that. It is up to all of us not to be afraid to publicly accuse artists of misrepresentation or fraud. This will only happen if we are culturally alert, and we have to be if we want to do without judgments of the courts, which have made us culturally lazy in the past! We should critically discuss what we consider culturally inappropriate use. What we have suggested thus far is that it is quite feasible to have a flourishing cultural domain without the existence of a copyright system, while at the same time many artists in the Western and non-Western countries alike can make a reasonable income from their labours. However, it is evident that the completely new approach as we propose it does not immediately eradicate all conceivable problems. With this we come to our third observation. If cultural enterprises can no longer control the market with copyright in hand, they must resort to a second protective mechanism, which they will then attempt to apply with even greater force than is presently the case. That is the far-reaching control over distribution and promotion of cultural expression they possess and wield. This too must be limited with metes and bounds. After all, from a democratic perspective it is impermissible that a limited number of cultural giants is able to determine the contents of artistic and cultural communications, using traditional as well as new media (Smiers 2003). Democracy is not the privilege of a few cultural conglomerates. It is a necessity to use ownership and content regulations to organize the cultural market in such a way that cultural diversity gets the best possible chance. First of all, there should not be dominant modes of distribution. It cannot be the case that a single owner dominates, controls, or concerts the market for music, films, or books. Vertical integration and other forms of cross ownership must be condemned. Content regulations may take the form of diversity prescriptions. That is to say: diversity in terms of genre, musicians' backgrounds, and geographical diversity, and the latter representing diversity from the home country, neighbouring countries, and many other parts of the world. Of course there will be outlets specializing in a certain genre that want to be known for it. These too will be subject to diversity prescription, albeit within that genre (Smiers 2004). This type of regulation does not take anything away from a free market economy. To the contrary, these rules, while in need of further elaboration, serve to create a free market, or differently put, to "normalize" the market and to bring about a level playing field. No one should be able to dominate the cultural market or to have such a strong position that cultural diversity will be suppressed, pushed aside, or taken away from the public attention. This demands some regulations: on the one hand the elimination of the control mechanism "copyright" and on the other hand the instalment of some regulations concerning ownership and content that protect and promote the flourishing of artistic diversity. Let's focus now on the main point of attention of this essay, it must be clear that abolishing copyright will benefit the public domain in all its keys, colours, movements, wits, and images! But what does it yield for artists and those who do organizing work for them? Let us see how this takes shape per discipline of the arts, and per professional activity within them. Putting it to the test *** Music If the present system of copy and neighbouring rights were suspended, how would musicians generate an income? We have to keep in mind, of course, that for many of them copyright was never, or hardly ever, a serious source of revenues. What we propose here applies without restrictions to all performing artists, in all walks of musical life and all genres, from popular to world music, and from improvisation to composed materials. A bit further on in the text we will reflect on the situation of those creating new works. The background assumption is that especially performing artists are well equipped to add value or generate a competitive advantage. Neighbouring rights nevertheless offer a disproportionate protection against the performance and interpretation of one's own or somebody else's work. Many musicians are experts in personifying their relationship with an audience. Direct contact with audiences generates a substantial part of the income of many musicians. This way they build their own, unique market niche. This means, for example, that many musicians go on tour to give concerts and thus develop a close relationship with their audience. Their promotion is therefore oriented towards cementing that relationship. Their work may be embedded in merchandising activities of all sorts, such as t-shirts, books, brochures, et cetera. They can also offer their work via the Internet to music lovers worldwide. Several options come to mind: one can download only after paying a small amount, or one can download at all times, and subsequently hope that the fan will pay. A real fan will be more inclined to do this than a coincidental passer-by. Record sales can also be a considerable source of revenues. Many people do not want to download music, or they want to get hold of the specially designed compact disk cover with the accompanying information. By paying special attention to the design of the cover, or by adding a lot of information, value is created. Records can be sold at concerts, in stores of various shapes and kinds, or ordered via the Internet. What is then to become of the record companies? In principle, musicians do not need record companies, at least not in the conventional meaning of the word. With the latest digital technology, they can make magnificent recordings and distribute them via the Internet or on compact disks. If they still feel the need to use an intermediary, they can commission dedicated companies to perform various kinds of services, like making digital recordings, and/or produce and distribute a compact disk, and/or market the recording worldwide in digital format. It is very imaginable that we will see the emergence of many new enterprises that offer services to artists. A lot of music finds its way to audiences via radio and television. Must broadcasting corporations, public or private, pay a fee for this content? The first impulse is of course to answer in the affirmative. We still live in the matter-of-fact world of copy- and neighbouring rights. Yet, there is a lot to say in favour of not charging fees, while bringing many artists in a financially better position. How does this add up? When the diversity of supply blossoms, as was described above, the air will be filled with many different kinds of music, supplied by many musicians. While this is culturally exciting in and of itself, it also yields a lot for artists. Not by being played by radio or television stations, but by familiarizing many different audiences with their existence - because they can be heard over the radio, and seen on television. Those audiences will visit their concerts, book them for festivals and parties, and obtain works from their favourite artists over the Internet and pay them for it. The new situation opens up the possibility that many artists will benefit from the latent demand for a diverse offering of cultural products, and find and develop their own audience. Those audiences guarantee that artists will be able to make a decent or even a good living. After all, they are involved with "their" artists. *** Composers, playwrights, choreographers Above we have primarily put performing musicians in the spotlight (and focused on abolishing neighbouring rights). For many kinds of music there is no distinction between creators and performers. Those musicians do both; they perform their own creations. They earn their living in the way described above. Still, there are many creators in the theatrical and musical arts that do not perform their own compositions, plays, and choreographies. This holds true for numerous composers, playwrights, choreographers, and related others. How can we imagine them earning a good living in absence of the present system of copyright? It may be that one him- or herself takes the initiative to compose, or that a work is being commissioned. We touched upon that matter above, when we described the new system, but it is relevant to elaborate upon the principle here, now that we have taken on a concrete exemplar. The core of the matter is: how can an artist abstract an income from his or her work? When the work is commissioned, the answer is clear. The patron pays, and that is all that matters to the artist. So what does the paying patron receive? A beautiful (or not) piece of work, and the opportunity to take it to the stage. What is essential is that the patron obtains a competitive advantage from the act of commissioning a work, whereas the work itself becomes part of the public domain again after its first performance. We deliberately say "again," because the work was largely derived from the public domain in the first place. So everyone who wishes to do so can take the composition, choreography, or play into production, free of charge. It also means that no one else is exclusively entitled to that work, or could obtain such a title. Many different versions of a piece can thus simultaneously be sung or played. Because of this lack of exclusivity, it all comes down to performing so attractively for different audiences that they want to come see it. If that happens, the composer, choreographer, or playwright has a good chance of receiving another commission, and so on and so forth. In many cases there is no commission at all, and the composer, playwright, or choreographer initiates the creative process autonomously. This happens more with composers and playwrights than with choreographers, who are usually more dependent on commissions and planned performances. By taking an initiative the creative artist takes the entrepreneurial risk. That sounds nice, but it is not unthinkable that this type of artistic enterprise represents a considerable investment for a one-man (or one-woman) shop or freelancer. Because it is important to encourage composers or playwrights to make this investment, it is fair to give the creative artist a temporal usufruct, which extends over a certain period of time. Several transactions must be undertaken to earn back the relatively large initial investment, for example a year's cost of living. This may encompass, for example, three stagings or performances. The usufruct is also temporarily restricted, notably: to one year. Of course, creative adaptation is again most welcome (the moral right no longer exists under the new regime). We make note of that because in some cases, as happens with musicals, for example, highly detailed directing concepts are a compulsory element of the sales transaction. It is unthinkable that this practice will persist, because commissioned musicals too will be absorbed by the public domain again after their first performance, making them available for creative adaptation. When the writer and/or composer have initiated the musical him- or herself, the work also becomes part of the public domain again quickly, notably: when the period of usufruct expires. The free reign of creative adaptation is left unimpeded even in this period. *** Books Most books these days still appear on paper. While pondering about how writers can earn an income in a world without copyright, we have to take into account that digitisation has also entered the world of books and is likely to increase. Essentially, we have described a similar situation above when we analyzed the case of music. The music piece, and in this case the book, can be downloaded in return for some form of compensation, or free of charge, in the hope that a payment will still be made. The writer either organizes all of this him- or herself, or hires a specialized intermediary, similar to what has been discussed in the case of music. This phenomenon may crumble the power of huge publishing houses. Next, the book on paper. We must take into account that author and publisher enjoy a competitive advantage. They are the first to take a specific book to the market, which gives them a certain period of time to rebalance expenditures and revenues. Writing a novel does however come with relatively large initial investments, which cannot be recouped with the first imprinting alone. Selling a hundred copies in the first few weeks will not adequately compensate the author for his or her labours. A certain amount of copies thus has to be sold, and this will take a certain stretch of time. The most obvious criterion for temporary protected usufruct is to offer the person taking the entrepreneurial risk, author or publisher, a certain period to bring the book to financial maturity. As was the case on previous occasions, our thoughts go out to a period of one year. It happens to be an interesting fact that authors reap ancillary benefits, next to their primary income from book sales, from contributions to newspapers and magazines, from literary readings, and from other public appearances. In this respect they are quite comparable to performing musicians. The difference, however, is that these activities have a little less in common with their primary activities than what happens to be the case with musicians. That is why we opted for a different regime. *** Film In principle, we propose, must filmmakers too profit from the competitive advantage they enjoy when bringing their product to market first. Reality is different, of course. Even a low-budget movie costs at least a million euros or dollars. The average movie is incapable of recouping the money invested in it on the basis of first-mover advantages alone. On top of that, it happens to be very easy to copy a movie, which makes it very difficult to make this type of product profitable. This makes it evident that a temporarily protected usufruct should be introduced in the domain of film. The most important source of revenues is therefore the temporarily protected usufruct of the film producer. The film producer too must do with a usufruct that last only a year. It should be possible to recoup the costs of a film within that year. He or she can use that year to offer the film via all imaginable media, including digitally via the Internet. But it is also well imaginable that governments endow filmmakers with subsidies. It may occur that the market is insufficiently developed to support a large diversity of, say, European films. Cultural-political arguments may also support measures like tax reliefs. Finally the government can contribute to the creation of efficient networks for the distribution of a variety of films. Experience teaches us that distribution is more difficult than production. An individual producer is bound to be incapable of developing an effective distribution network for a variety of films. There is a role here for governments to support the realization of such networks and to contribute to them in their initial phases. *** Design disciplines and visual arts In the area of visual culture, the question relevant for determining whether the creators of a work of art will be able to extract a decent living from their labours is as follows: is the work a unique piece or is it a replica? Many visual artists make unique works and figure out for themselves how they will go about doing so. Their main source of income is the sale of this unique work. The orthodox copyright system is less relevant here, and the same holds true for the new system sketched above. Apart from that, subsidy instruments will remain relevant for protecting artists from the whims of the market; they provide the foundation for a process of continuous, emergent creation. Nevertheless, artists will have to be stimulated and trained to commit various audiences to themselves, thus providing their income. There is no room for derivative rights. Creative adaptation too must be applauded. This may imply that similar looking pieces will enter the market, just like what has always been the case in all cultures. Where a work has been commissioned or ordered, the situation is also clear. The work, regardless of whether it involves a design or painting, is created and delivered against the agreed-upon price. It should be clear that creative adaptation is allowed to take its course here too. It can obviously not be the case that, say, an architect is allowed to claim: this realized building is my design and no one is allowed to change it without my permission, or - at the opposite end of the spectrum - no one is allowed to imitate it. The reality is, in this case, that the architect has been paid for his or her endeavours. After that the building will once again become part of the public domain, and may be altered or imitated if so desired. Especially the products of the design professions are easily replicable and imitable. But the maker, or the buyer of the work, enjoys a competitive advantage. He or she is the first to market the product manufactured according to a certain design. Let markets be markets; additional forms of protection are unnecessary. Discussion and conclusion Admittedly, it may take a while to get used to letting go of the system of copyright. It urges us to make a mental and an economic transition, but this is worth the trouble in every conceivable way. Many practical matters still need to be solved with respect to the usufruct model. Should a temporary protected usufruct be granted automatically or should we implement a licensing system? Following some of our test cases, it seems logical to automatically grant some types of artistic product (for example films and books) usufruct. But what are the drawbacks of this approach and should the duration of protection for all fields of the arts be the same? Other questions that come to mind are: is there still a role to play for the collecting societies and what is the effect of the one-year usufruct on the product life cycle of artistic products? In this essay we have presented a thought-experiment. We urge everybody to participate in our quest. Who should, for instance, be our strategic partners in our journey into a world without copyright? What is at stake is to once again begin respecting the public domain of creativity and knowledge. Our main concern is providing the makers of artistic work with a decent income and sufficient possibilities to bring their work, in all its diversity, under the attention of many audiences without being pushed from the market by a few oversized cultural conglomerates. The system of copyright has existed for over a century in Western societies. It has been long enough. It is not equipped to withstand the digitisation that has once again supplied artists with a magnitude of entrepreneurial freedom. Profit from it! References Alderman 2001, John, Sonic Boom. Napster, P2P and the Battle for the Future of Music, London (Fouth Estate) Barthes 1968, Roland, La mort de l'auteur, Manteia, no. 5, 4e trimestre 1968. Published as well in: Roland Barthes, Oeuvres complètes, Tome II, 1966-1973, Paris 1994 (Editions du Seuil): 491-495 Bettig 1996, Ronald V., Copyrighting Culture. The Political Economy of Intellectual Property, Boulder (Westview Press) Bollier 2003, David, Silent Theft. The Private Plunder of Our Common Wealth, New York and London (Routledge) Boyle 1996, James, Shamans, Software, and Spleens. Law and the Construction of the Information Society, Cambridge MA/ London (Harvard University Press) Coombe 1998, Rosemary J, The Cultural Life of Intellectual Properties. Authorship, Appropriation, and the Law, Durham and London (Duke University Press) Correa 2000, Carlos M., Intellectual Property Rights, the WTO and Developing Countries. The TRIPS Agreement and Policy Options, London/ Penang (Zed Books/ Third World Network) Daoudi 1996, Bouziane, et Hadj Miliani, L'aventure du raï. Musique et société, Paris (Éditions du Seuil) Drahos 2002, Peter, with John Braithwaite, Information Feudalism. Who Owns the Knowledge Economy?, London (Earthscan) Drahos 2002a, Peter, and Ruth Mayne, Global Intellectual Property Rights. Knowledge, Access and Development, Basingstoke (Hampshire) and New York (Palgrave Macmillan and Oxfam) Edelman 2004, Bernard, Le sacre de l'auteur, Paris (Seuil) Fombrun 1996, C.J., Corporate reputation: How Companies realise Value from the Corporate Brand¸ Boston MA (Harvard Business School Press) Frith 1993, Simon (ed.), Music and Copyright, Edinburgh (Edinburgh U.P.) Frith 2004, Simon, and Lee Marshal (ed.), Music and Copyright. Second Edition, Edinburgh (Edinburgh U.P.) Grandstrand 2003, Ove (ed.), Economics, Law and Intellectual Property, Amsterdam (Kluwer Academic Publicers) Grosheide 2002, Willem, and Jan Brinkhof (ed.), Articles on the Legal Protection of Cultural Expressions and Indigenous Knowledge, Antwerp (Intersentia) Hauser 1972, Sozialgeschichte der Kunst und Literatur, München (C.H. Beck) Hemmungs Wirtén 2004, Eva, No Trespassing. Authorship, Intellectual Property Rights, and the Boundaries of Globalization, Toronto (University of Toronto Press) Kretschmer 1999, Martin, Intellectual Property in Music: A Historical Analysis of Rethoric and Institutional Practices, special issue Cultural Industry (ed. P. Jeffcutt), Studies in Cultures, Organizations and Societies, 6: 197-223 Kretschmer and Kawohl 2004, Martin and Friedemann, The History and Philosophy of Copyright, in: Frith and Marschall (2004): 21-53 Lessig 2002, Lawrence, The Future of Ideas. The Fate of the Commons in a Connected World, New York (Vintage) Lessig 2004, Lawrence, Free Culture. How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, New York (The Penguin Press) Lewinski 2002, Silke von, Indigenous Heritage and Intellectual Property. Genetic Resources, Traditional Knowledge and Folklore, The Hague (Kluwer Law International) Litman 2001, Jessica, Digital Copyright, Amherst (New York/ Prometeus Books) Macmillan 2002, Fiona, Copyright and Corporate Power, in Towse 2002: 99-118 McChesney 1999, Robert W., Rich Media, Poor Democracy. Communication Politics in Dubious Times, Urbana and Chicago (University of Illinois Press) Mitsui 1993, Tôru, Copyright and Music in Japan. A Forced Grafting and its Consequences, in Frith 1993: 125-145 Motavalli 2002, John, Bamboozled at the Revolution. How Big Media Lost Billions in the Battle for the Internet, New York (Viking) Perelman 2002, Michael, Steal This Idea. Intellectual Property Rights and the Corporate Confiscation of Creativity, New York (Palgrave) Picciotto 2002, Sol, Defending the Public Interest in TRIPS and the WTO, in Drahos 2002a: 224-243 Rifkin 1998, Jeremy, The Biotech Century. Harnessing the Gene and Remaking the World, New York (Jeremy P. Tarcher/ Putnam) Rifkin 2000, Jeremy, The Age of Access. The New Culture of Hypercapitalism, Where All of Life is a Paid-for Experience, New York (Jeremy P. Tarcher/ Putnam) Schiller 2000, Dan, Digital Capitalism. Networking the Global Market System, Cambridge (MA)/ London (The MIT Press) Shiva 1997, Vandana, Biopiracy. The Plunder of Nature and Knowledge, Boston MA (South End Press) Shiva 2001, Vandana, Protect or Plunder? Understanding Intellectual Property Rights, London (Zed Books) Shulman 1999, Seth, Owning the Future, New York (Houghton Mifflin Company) Smiers 2001, Joost, La propriété intellectuelle, c'est le vol ! Pladoyer pour l'abolition des droits d'auteur, In Le Monde Diplomatique, septembre 2001. Smiers 2002, Joost, The abolition of copyrights: better for artists, Third World countries and the public domain, in Towse 2002: 119 - 139 Smiers 2003, Joost, Arts Under Pressure. Promoting Cultural Diversity in the Age of Globalisation, London (Zed Books) Smiers 2004, Joost, Artistic Expression in a Corporate World. Do We Need Monopolistic Control?, Utrecht (HKU/ Utrecht School of the Arts) Towse 2002, Ruth (ed.), Copyright in the Cultural Industries, Cheltenham (Edward Elgar) Towse 2003, Ruth, Copyright and Cultural Policy for the Creative Industries, in: Grandstrand 2002: 1-10 Towse 2004, Ruth, Copyright and Economics, in: Firth and Marshall (2004): 54-69 Vaidhyanathan 2003, Siva, Copyrights and Copywrongs. The Rise of Intellectual Property and How It Threatens Creativity, New York and London (New York University Press) about the authors Marieke van Schijndel is policy advisor and has worked for various cultural organisations in the Netherlands. Last year she received her Master of Business Administration from the John Molson School of Business (Canada) and she currently works for the Mondriaan Foundation, an organisation that provides financial support to projects and activities in the field of art, design and heritage. This essay is written à titre personnel. (m_vanschijndel at hotmail.com) Joost Smiers is professor of political science of the arts at the Utrecht School of the Arts, the Netherlands. He is author of Arts Under Pressure. Promoting Cultural Diversity in the Age Globalization (London 2003, Zed Books); and of Artistic Expression in a Corporate World. Do We Need Monopolistic Control? (Utrecht 2004, Utrecht School of the Arts). (joost.smiers at central.hku.nl and joost.smiers at planet.nl) 1 The authors wish to thank the following friends and colleagues for their kind and critical comments to earlier drafts of this article: Maarten Asscher, Lee Davis, Christophe Germann, Willem Grosheide, Giep Hagoort, Eva Hemmungs Wirtén, Pursey Heugens, Raj Isar, Lina Khamis, Jaap Klazema, Gerd Leonhard, Helle Porsdam, Alan Story, Ruth Towse, David Vaver, Catarina Vaz Pinto , Roger Wallis, Lior Zemer, as well as the Research Group Arts & Economics at the Utrecht School of the Arts (the Netherlands), the Copy/South Research Network and the AHRB Network on New Directions in Copyright Law (London). . -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050330/6bd5565b/attachment.html From z3118338 at student.unsw.edu.au Wed Mar 30 21:34:02 2005 From: z3118338 at student.unsw.edu.au (z3118338 at student.unsw.edu.au) Date: Wed, 30 Mar 2005 18:04:02 +0200 Subject: [Commons-Law] immaterial labour - unix history Message-ID: <200503301804.04638.z3118338@student.unsw.edu.au> and now for a change of pace here is my current dilemma - about unix and its capture I thought maybe someone here might have some ideas or leads on the way in which unix was commodified and taken out of the attic where it was created .... I have been using the interviews of the unix oral history project http://www.princeton.edu/~mike/unixhistory as a large source for the stuff i am trying to write up which follows on from the excerpts i posted a couple of weeks back about immaterial labour and am a little bit confused regarding some issues concerning Berk Tague, the Unix Support Group and the marketing of early unix. Most of the *nix histories skirt over the Bell Labs experience, which the more I read I feel is a real big mistake. And they also skip over the details of exactly how it was distributed and sold during the mmid 1970's to bolster the free as in speech rhetoric of the floss/commons (not common) movement Most histories of Linux/Unix start with a line such as - because of the 1958 consent decree Bell was forbidden from entering the computer business. Although I think the legal environment had its role to play in setting the climate, I think also the nature of the machine itself has a lot to do with why *nix is what it is. So I think maybe that sort of intro to the history is a little too simplistic. For example Raymond says that "under the terms of the consent decree, Bell Labs was required to licence its nontelephone technology to anyone who asked" and this has been picked up by many who count themselves as analysing this topic. The given wisdom is that Bell couldn't market computer sytems prior to the later anti trust agreement and diverstiture in the mid 1980's. My research of the community memory list tells me that during the 1970's commercial unix licences went to eg RAND for $100,000 USD and to universities such as Berekely and UNSW in 1974 for $150 USD. So in this context I am intrigued by the role played by Berk Tague and the Unix Support Group. In the oral history interviews he talks of his first unix sale and making unix into a product. i found this other interview with Tague today: http://www.dorje.com/netstuff/folklore/hist.bell-labs Can anyone help me out a bit on this? Is he talking about Unix as a product internally? Within the wider telephone system? Or some much broader marketing? It seems to me that this standardisation by the USG was the first step on the road to the "commodification" of Unix. But prima facie Tague's comments about product, marketing, sales seem at odds with the history as skirted over by luminaries such as Lessig and even Eric Raymond. I want to try and get this clear as I am about to tackle the dissemination to universities part of the story. But to do that I need to understand better the dynamics within Bell itself. Interesting also is that Ken Thompson seems not to have been comfortable with the USG's role (see his interview) and talks of getting out for a while on sabbatical to Berkely in 1975 - Berkeley seems to have first got Unix is the 2nd half of 74. How much then did Thompson "activeley promote" an alternate non corporate home for Unix as early as 75-76? Any ideas? If not any leads that I could chase up? Anyway, any ideas on this apparent contradiction or can anyone help me clarify who in fact the USG saw as its clients/market? Thanks m From cpcnath at gmail.com Thu Mar 31 06:46:40 2005 From: cpcnath at gmail.com (CPC) Date: Thu, 31 Mar 2005 06:46:40 +0530 Subject: [Commons-Law] Indian IT Act 2000 is dangerous to society Message-ID: Hi, With highest respect for the esteemed Parliament that passed the IT Act 2000 and HE the Hon. President of India, who approved the same, here are some truths that might shock you. Read more: http://indianitact.blogspot.com/2005/03/digital-signature-indian-it-act-2000.html In other words, if the country has gone grossly wrong due to over enthusiastic but under informed technocrats in getting the IT Act 2000 passed, the only way to protect yourself is by rejecting the provisions of the law the same way Gandhiji rejected the law governing the Salt Tax. We perhaps need a modern day "Dandi March". If this shocks you, you are not alone. There are many who will be shocked. The best service you can do them is by inviting them to this blog. regards nath -- ================================================== Customer: "I want to download the Internet. Do I need a bigger hard disk?" Download the Internet here: http://www.w3schools.com/downloadwww.htm Support: "Is there a floppy inside your drive?" Customer: "No. It says Intel inside" ================================================== CPC Nath, Founder& CTO, 01edge technologies, C 679 Sarita Vihar, New Delhi 110044 http://01edge.com/ (SSS: Security in Storage & Sharing) +91 112 694 8083, +91 981 020 2680, +91 11 51401679 _______________________________________ IMPORTANT NOTICE: This email message including any attachments is legally privileged, confidential and is for the use of the individual or entity to whom it is addressed. Any unauthorized review, use, disclosure or distribution is expressly prohibited. If you have received this email message in error, please immediately notify us by email and destroy all copies of the message. Thank you. From tahir.amin at btopenworld.com Thu Mar 31 12:35:04 2005 From: tahir.amin at btopenworld.com (TAHIR AMIN) Date: Thu, 31 Mar 2005 08:05:04 +0100 (BST) Subject: [Commons-Law] Court mulls file-sharing future Message-ID: <20050331070504.93796.qmail@web86102.mail.ukl.yahoo.com> Court mulls file-sharing future Judges at the US Supreme Court have been hearing evidence for and against file-sharing networks. The court will decide whether producers of file-sharing software can ultimately be held responsible for copyright infringement. They questioned if opening the way for the entertainment industry to sue file-sharers could deter innovation. They also said that file-trading firms had some responsibility for inducing people to piracy. Just tools The lawsuit, brought by 28 of the world's largest entertainment firms, has raged for several years. Legal experts agree that if the Supreme Court finds in favour of the music and movie industry they would be able to sue file-trading firms into bankruptcy. But if the judge rules that Grokster and Morpheus - the file-sharers at the centre of the case - are merely providers of technology that can have legitimate as well as illegitimate uses, then the music and movie industry would be forced to abandon its pursuit of file-sharing providers. Instead, they would have to pursue individuals who use peer-to-peer networks to get their hands on free music and movies. The hi-tech and entertainment industries have been divided on the issue. Intel filed a document with the Supreme Court earlier this month in defence of Grokster and others, despite misgivings about some aspects of the file-sharing community. It summed up the attitude of many tech firms in its submission which states that its products "are essentially tools, that like any other tools, capable of being used by consumers and businesses for unlawful purposes". Magna Carta Asking firms to second-guess the uses that its technologies would be put to, and to build in ways of preventing illegitimate use, would stifle innovation, it said. The Electronic Frontier Foundation, a civil rights watchdog, is also defending StreamCast Networks, the company behind the Morpheus file-sharing software. The case raises a question of critical importance at the border between copyright and innovation, it said. It cites, as do many, the landmark ruling in 1984 which found that Sony should not be held responsible for the fact that its Betamax video recorder could be used for piracy. Defenders remain optimistic that the judges will rule in favour of the peer-to-peer networks, upholding the precedent set by the Sony Betamax case. A small band of supporters were outside the court as the lawyers entered, wearing "Save Betamax" t-shirts. "The Betamax principles stand as the Magna Carta for the technology industry and are responsible for the explosion in innovation that has occurred in the US over the past 20 years," said Gary Shapiro, chief executive of the Consumer Electronics Association. Supreme Court Justice Stephen Breyer said that inventions from printing to Apple's iPod could be used to illegally duplicate copyrighted materials but had, on balance, been beneficial to society. He said that while file-trading software can be used to illegally trade movies and music, conceptually the technology had "some really excellent uses". Ridiculous Based on Tuesday's hearing it seems unlikely that the Betamax ruling will be overturned but file-sharing firms might still be held responsible for encouraging or inducing piracy. Grokster's lawyer argued that the company should be judged by its current behaviour rather than what it did when it first set up. But this argument was dismissed as "ridiculous" by Justice David Souter. CEA boss Mr Shapiro thinks the case is the most important that the Supreme Court will hear this year. "It's about preserving America's proud history of technological innovation and protecting the ability of consumers to access and utilise technology," he said. The case has already been heard by two lower courts and both found in favour of the peer-to-peer networks. They ruled that despite being used to distribute millions of illegal songs, file-sharing could also be used to cheaply distribute software, government documents and promotional copies of music. Send instant messages to your online friends http://uk.messenger.yahoo.com -------------- next part -------------- An HTML attachment was scrubbed... URL: http://mail.sarai.net/pipermail/commons-law/attachments/20050331/941de2d6/attachment.html