The NYT has a terrific piece today on Chris Lydon and Mary McGrath’s new show, “Open Source
from P.R.I.” The article’s emphasis on the blogosphere’s
participation in developing programs is exactly the point. (Disclosure: I am on the Board of Directors of the non-profit that produces the show.)
Urs Gasser, having left us and taken up his new post as a prof at the University of St. Gallen in Switzerland, writes in about the newly proposed EU IPR enforcement directive. (The proposal itself is here.)
Prof. Dr. Gasser’s take-away: “Personally, I agree with the draft
Directive’s objective to fight organized IP crimes and infringements
that bear risks for public health and safety. However, the much broader
provision on ‘attempting, aiding or abetting’ and ‘inciting’
infringements is highly problematic and should be removed or at least
significantly limited in scope. Under this standard, for instance,
software programmers would run the risk to be criminalized if their
software could be used for large-scale copyright infringements,
especially vis-à-vis the broad ‘commercial scale’ criterion which does
not require financial motives, benefits, or profits.” Relevant, of course, in the light of Grokster and the proposed INDUCE Act here, among other things.
One reason why this note is troubling is that the main problem with
inducement-type standards is that they may add too great an element of
uncertainty when an entrepreneur is developing a general-use
technology, which, in the US-law context, might pass the Sony-Betamax
test (that the technology can be used for substantial
non-infringing uses) but which also might well be used for infringing
purposes. In the European system, this problem is exacerbated: a
directive of this sort must be translated — or “transposed” — into
national law (i.e., the
British take the directive as passed and then implement it into their
own IPR framework, as do the Poles and the Italians and so
forth). Each implementation will likely differ one from the
next. Each court system may well interpret the translated
directive differently. The uncertainty grows with each step
removed from the original intent of the law — growing less clear,
plausibly, as it gets closer to relevant to the entrepreneur.
This is true in particular if the entrepreneur believes her market to
be the common European market, with its lower barriers to cross-border
trade but possibly different standards for aiding and abetting and
inducing the infringement of copyright through development and
marketing of a general-use technology. (As usual in this regard,
I hope I am wrong.)
A curious thing about this proposal: the rhetorical move to emphasize
“health and safety” as part of the rationale for stronger enforcement
of IPR-related crimes. I think of “health and safety” in the
context of environmental protection, for instance, but not so much in
the IPR setting. In the proposed directive, the “health and
safety” language pops up in the Justification section but is not built
out. Perhaps the link is through the “organized crime” fear, a
reality for certain, and the other primary element of the
Jurisdiction? Not sure. It is at a minimum and interesting
rhetorical shift away from the ordinary “theft” and “moral rights” and
“level-playing-field” and other traditional rationales for stronger,
harmonized IPR enforcement.
(We are glad that Prof. Dr. Gasser is still writing in English and has not yet reverted entirely to his native German!)
Update: a further comment in this thread.
Dave writes on
podcatch: “It’s a wonderful thing! People in the community want the
newcomers to podcastng to use their work, and help them do more. But so
far they’ve taken the Atex approach, one-corporation doing
everything-for-everyone. It can’t possibly compete with the structure
the community has already built. I’m committed to making it work, and I
think we have the strength to do it, because so many people are pulling
in the same direction.” Toward structure, directories, RSS, OPML,
and launching a new medium in record time.
More on this, for certain, when he returns to the Berkman Thursday blog group, of which he is the founder.
Words to the wise academics who blog then look to get a job, from the Chronicle of Higher Education.
A snippet: “Worst of all, for professional academics, it’s a publishing
medium with no vetting process, no review board, and no editor. The
author is the sole judge of what constitutes publishable material, and
the medium allows for instantaneous distribution. After wrapping up a
juicy rant at 3 a.m., it only takes a few clicks to put it into global
circulation.
“We’ve all done it — expressed that way-out-there opinion in a lecture
we’re giving, in cocktail party conversation, or in an e-mail message
to a friend. There is a slight risk that the opinion might find its way
to the wrong person’s attention and embarrass us. Words said and e-mail
messages sent cannot be retracted, but usually have a limited range.
When placed on prominent display in a blog, however, all bets are off.”
The bottom line: “[Academic] [j]ob seekers who are also bloggers may
have a tough road ahead, if our committee’s experience is any
indication.”
Words to the wise academics who blog then look to get a job, from the Chronicle of Higher Education.
A snippet: “Worst of all, for professional academics, it’s a publishing
medium with no vetting process, no review board, and no editor. The
author is the sole judge of what constitutes publishable material, and
the medium allows for instantaneous distribution. After wrapping up a
juicy rant at 3 a.m., it only takes a few clicks to put it into global
circulation.
We’ve all done it — expressed that way-out-there opinion in a lecture
we’re giving, in cocktail party conversation, or in an e-mail message
to a friend. There is a slight risk that the opinion might find its way
to the wrong person’s attention and embarrass us. Words said and e-mail
messages sent cannot be retracted, but usually have a limited range.
When placed on prominent display in a blog, however, all bets are off.”
The bottom line of this article: “Job seekers who are also bloggers may
have a tough road ahead, if our committee’s experience is any
indication.”
I can’t think of anything to say other than that I am thinking of our British friends. Others have done a better job of what to say. And a demonstration of why Flickr is so powerful.
