net.wars

Reversals - in which a twist of plot or dialogue reverses what's gone before it - make for great moments in fiction, both comic and tragic. Retcons, in which the known history of a character or event is rewritten or ignored are typically a sign of writer panic: they're out of ideas and are desperate enough to betray the characters and enrage the fans.

This week real-life Internet-related news has seen so many of both that if it were a TV series the showrunner would demand that the writers slow the pace. To recap:

Reversal: Paul Chambers' acquittal on appeal in the so-called Twitter joke trial is good news for everyone: common sense has finally prevailed, albeit at great cost to Chambers, whose life was (we hope temporarily) wrecked by the original arrest and guilty verdict. The decision should go a long way toward establishing that context matters; that what is said online and in public may still be intended only for a relatively small audience who give it its correct meaning; and that when the personnel responsible for airport security, the police, and everyone else up the chain understand there was no threat intended the Crown Prosecution Service should pay attention. What we're trying to stop is people blowing up airports, not people expressing frustration on Twitter. The good news is that everyone except the CPS and the original judge could accurately tell the difference.

Retcon: The rewrite of British laws to close streets and control street signs, retailers, individual behavior, and other public displays for the next month, all to make the International Olympic Committee happy is both wrong and ironic. While the athletes are required to appear to be amateurs who participate purely for the love of sport (no matter what failed drug tests indicate), the IOC and its London delegate, LOCOG, are trying to please their corporate masters by behaving like bullies. This should not have been a surprise, given both the list of high-level corporate sponsors and the terms of the 2006 Act the British Parliament passed in their shameful eagerness to *get* the Olympics. No sporting event, no matter how prominent, no matter how much politicians hope it will bring luster to their country and keep them in office, should override national laws, norms, and standards.

In 1997 I predicted for Salon.com the top ten new jobs for 2002. Number one was copyright protection officer, which I imagined as someone who visited schools to ensure that children complied with trademark, copyright, and other intellectual property requirements. Today, according to CNN and the New York Times, 280 "brand police" are scouring London for marketers who are violating the London Olympic Games and Paralympic Games Act 2006 by using words that might conjure up an association with the Olympics in people's minds. Even Michael Payne, the marketing director who formulated the IOC's branding strategy, complains that LOCOG has gone too far. The Olympics of Discontent, indeed.

Reversal: Eleven-year-old Liam Corcoran managed to get through security and onto a plane, all without a ticket, boarding pass, or passport, apparently more or less by accident. The story probably shouldn't be the occasion for too much hand-wringing about security. The fixes are simple and cheap. And it's not as if the boy got through with 3D printer and enough material to make a functioning gun. (Doubtless to be banned from Olympic events in 2016, alongside wireless hubs.

Retcon: If you're going to (let's call it) reinterpret history to suit an agenda, you should probably stick with events far enough back that the people are all dead. There is by now plenty of high-quality debunking of Gordon Crovitz's claim in the Wall Street Journal that government involvement in the invention of the Internet is a "myth". Ha. Not only was the development of the Internet largely supported by the US government (and championed by Al Gore), so was that of the rest of the computer industry. That conservatives would argue this wasn't true is baffling; isn't the military supposed to be the one part of government anti-big-government people actually like? Another data point left out of the (largely American) discussion: the US government wasn't the only one involved. Much of the early work on internetworking involved international teamwork. The term "packet" in "packet switching", the fundamental way the Internet transmits data, came from the British efforts; its inventor was the Welsh computer scientist Donald Davies at the UK's National Physical Laboratory. Not that Mitt Romney will want to know this.

For good historical accounts of the building of the Internet, see Katie Hafner and Matthew Lyon's Where Wizards Stay Up Late: The Origins of the Internet (1998) and (especially for a more international view) Janet Abbate's Inventing the Internet. As for the Romney/Obama spat over who built what, I suspect that what President Obama was trying to get across was a point similar to that made by the writer Paulina Borsook in 1996: that without good roads, clean water, good schools, and all the other infrastructure First Worlders take for granted, big, new companies have a hard time emerging.

It's all part of that open, free infrastructure we so often like to talk about that's necessary for the commons to thrive. And for that, you need governments to do the right things.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

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About a year and a half ago, I suddenly noticed that The Atlantic was posting a steady stream of interesting articles to Twitter (@theatlantic) and realized it was time to resubscribe. In fact, I would argue that the magazine is doing a lot of what Wired used to do in its digital coverage.

I don't, overall, regret it. But this month's issue is severely marred by this gem, from Elizabeth Wurtzel (the woman who got famous for taking Prozac and writing about it:

Of the Founders' genius ideas, few trump intellectual-property rights. At a time when Barbary pirates still concerned them, the Framers penned an intellectual-property clause--the world's first constitutional protection for copyrights and patents. In so doing, they spawned Hollywood, Silicon Valley, Motown, and so on. Today, we foolishly flirt with undoing that. In a future where all art is free (the future as pined for by Internet pirates and Creative Commons zealots), books, songs, and films would still get made. But with nobody paying for them, they'd be terrible. Only people who do lousy work do it for free.

Wurtzel's piece, entitled "Charge for Your Ideas", is part of a larger section on innovative ideas; other than hers, most of them are at least reasonable suggestions. I hate to make the editors happy by giving additional attention to something that should have been scrapped, but still: there are so many errors in that one short paragraph that need rebuttal.

Very, very few people - the filmmaker Nina Paley being the only one who springs rapidly to mind (do check out her fabulous film Sita Sings the Blues) - actually want to do away with copyright. And even most of those would like to be paid for their work. Paley turned Sita over to her audience to distribute freely because the deals she was being offered by distributors were so terrible and demanded so much lock-in that she thought she could do better. And she has, including fees for TV and theatrical showings and sales of DVDs and other items. More important from her perspective, she's built an audience for the film that it probably never would have found through traditional channels and that will support and appreciate her future work. As so many of us have said, obscurity is a bigger threat to most artists than loss of revenues.

Neither Creative Commons, nor its founder, Larry Lessig, nor the Open Rights Group, nor the Electronic Frontier Foundation, nor anyone else I can think of among digital rights campaigners has ever said that copyright should be abolished. The Pirate Party, probably the most radical among politically active groups pushing for copyright reform, wants to cut it way back, true - but not to abolish it. Even free software diehard Richard Stallman finds copyright useful as a way of blocking people from placing restrictions on free software.

Creative Commons' purpose in life is to make it easy for anyone who creates online content to attach to it a simple, easy-to-understand license that makes clear what rights to the content are reserved and which are available. One of those licenses blocks all uses without permission; others allow modification, redistribution, or commercial use, or require attribution.

Wurtzel fails to grasp that one may wish to reform something without wishing to terminate its existence. It was radical to campaign for copyright reform 20 years ago; today even the British government agrees copyright reform is needed (though we may all disagree about the extent and form that reform should take).

The Framers did not invent copyright. It was that pesky country they left, Britain, that enacted the first copyright law, the Statute of Anne, in 1710. We will, however, allow the "first constitutional" bit to stand. That still does not mean that the copyright status of Mickey Mouse should dictate national law.

As for pirates - the seafaring kind, not the evil downloader with broadband - they are far from obsolete. In fact, piracy is on the increase, and 1 major concern to both governments and shipping businesses. In May, the New York Times highlighted the growing problem of Somali pirates off the Horn of Africa.

Her final claim, that "Only people who do lousy work do it for free" was the one that got me enraged enough to write this. It's an insult to every volunteer, every generous podcaster, every veteran artist who blogs to teach others, every beginning artist finding their voice, every intern, and every person who has a passion for something and pursues it for love, whether they're an athlete in an unpopular sport or an amateur musician who plays only for his friends because he doesn't want his relationship with music to be damaged by making it his job. It is certainly true that much of what we imagine is "free" is paid for in other ways: bloggers whose blogs are part of the output their employer pays for, free/open source software writers who like the credit and stature their contributions give them, and so on. But imagine the miserable, miserly, misanthropic society we'd be living in if her claim were true? We'd need that Prozac.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

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Why do technologies fail? And what do we mean by failure?

These questions arise in the first couple of hours of HOPE 9, this year's edition of the hacker conference run biannually by 2600, the hacker quarterly.

Technology failure has a particular meaning in the UK, where large government projects have traditionally wasted large amounts of public money and time. Many failures are more subtle. To take a very simple example: this morning, the elevators failed. It was not a design flaw or loss of functionality: the technology worked perfectly as intended. It was not a usability flaw: what could be simpler than pushing a button? It was not even an accessibility or availability flaw: there were plenty of elevators. What it was, in fact, was a social - or perhaps a contextual - flaw. This group of people who break down complex systems to their finest components to understand them and make them jump through hoops simply failed to notice or read the sign that gave the hours of operation even though it was written in big letters and placed at eye level, just above the call button. This was, after all, well-understood technology that needed no study. And so they stood around in groups, waiting until someone came, pointed out the sign, and chased them away. RTFM, indeed.

But this is what humans do: we make assumptions based on our existing knowledge. To the person with a hammer, everything looks like a nail. To the person with a cup and nowhere to put it, the unfamiliar CD drive looks like a cup holder. To the kids discovering the Hole in the Wall project, a 2000 experiment with installing a connected computer in an Indian slum, the familiar wait-and-wait-some-more hourglass was a drum. Though that last is only a failure if you think it's important that the kids know it's an hourglass; they understood perfectly well the thing that mattered, which is that it was a sign the thing in the wall was doing something and they had to wait.

We also pursue our own interests, sometimes at the expense of what actually matters in a situation. Far Kron, speaking on the last four years of community fabrication, noted that the Global Village Construction project, which is intended to include a full set of the machines necessarily to build a civilization, includes nothing to aid more mundane things like fetching fresh water and washing clothes, which are overall a bigger drain on human time. I am tempted to suggest that perhaps the project needs to recruit some more women (who around the world tend to do most of the water fetching and clothes washing), but it may simply be that small, daily chores are things you worry about after you have your village. (Though this is the inverse of how human settlements have historically worked.)

A more intriguing example, cited by Chris Anderson, a former organizer with New York's IndyMedia, in the early panel on Technology to Change Society that inspired this piece, is Twitter. How is one of the most important social networks and messaging platforms in the world a failure?

"If you define success in technical terms you might only *be* successful in technical terms," he said. Twitter, he explained grew out of a number of prior open-source projects the founders were working. "Indymedia saw technology as being in service to goals, but lacks the social goals those projects started with."

Gus Andrews, producer of The Media Show, a YouTube series on digital media literacy, focused on the hidden assumptions creators make. Some believed, for example, that open source software was vital to One Laptop Per Child, for example, believed that being able to fix the software was a crucial benefit for the recipients.

In 2000, Lawrence Lessig argued that "code is law", and that technological design controls how it can be used. Andrews took a different view: "To believe that things are ineluctably coded into technology is to deny free will." Pointing at Everett Rogers' 1995 book, The Diffusion of Innovations, she said, "There are things we know about how technology enacts social change and one of the thing we know is that it's not the technology."

Not the technology? You might think that if anyone were going to be technology obsessed it would be the folks at a hacker conference. And certainly the public areas are filled with people fidgeting with radio frequencies, teaching others to solder, and showing off their latest 3D printers and their creations (this year's vogue: printing in brightly colored Lego plastic). But the roots of the hacker movement in general and of 2600 in particular are as much social and educational as they are technological.

Eric Corley, who has styled himself "Emmanuel Goldstein", edits the magazine, and does a weekly radio show for WBAI-FM in New York. At a London hacker conference in 1995, he summed up this ethos for me (and The Independent) by talking about hacking as a form of consumer advocacy. His ideas about keeping the Internet open and free, and about ferreting out information corporations would rather keep hidden were niche - and to many people scary - then, but mainstream now.

HOPE continues through Sunday.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

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A lot of people have wondered for a long time whether the licensing conditions imposed by software publishers really would stand up in a court of law. And now we know: this week the Court of Justice of the European Union ruled (PDF) that people who buy downloaded software cannot be prohibited from selling on their used licenses.

The case: the German company UsedSoft advertises and sells, among others, licenses to Oracle software. These it acquires from Oracle customers who either are no longer using them or bought group licenses (sold in blocks of 25) and don't need all of the seats. The customers then download the software from Oracle's Web site. The license you buy from UsedSoft includes the remaining portion of the maintenance contract with Oracle, which marks its licenses "non-transferable". Oracle sued to stop this; the German regional court upheld the complaint. UsedSoft appealed to the German Federal Court of Justice, which referred the case to the EU.

With physical objects we take for granted the concept the US calls "first sale doctrine". That is, the person or company who manufactures the object only gets to sell it the first time. Thereafter, it's yours to do with what you like - trash it, recycle it, loan it out, sell it on to someone else, even burn it, all without owing anything to the person who made it and/or sold it to you. Software manufacturers, however, have emulated the publishers of books, music, film, and other media by unbundling the right to distribute the physical object and the right to make copies of the content embedded in it. When you buy a book, you gain the rights to that one copy of the book; but you don't gain the right to scan in the contents and give away or sell new copies of the contents. Or at least, if you do such a thing you would be wise to be Google Books rather than a 22-year-old college student with broadband and a personal Web site.

Usedsoft v Oracle revolves around the interactions of several pieces of EU law covering copyright and the distribution of goods, but ultimately the court's decision is clear enough. The purpose of the "exhaustion" of the manufacturer's distribution rights after the first sale was, in the ruling's argument to ensure that the original manufacturer should not be responsible for damage to the physical object that takes place between the first and second sales. Digitally distributed copies (especially from the original site) don't have this problem. Hence the ECJ's decision: first sale doctrine applies to software. The one caveat in all this: the original license-holder must delete or render unusable his original licensed copy of the software, even though it's difficult to prove he's done it.

The conditions of software licenses have never seemed fair. For one thing, back when software was primarily distributed in shrink-wrapped packages, you couldn't read the license to agree to it until you'd rendered the software unreturnable by opening the package. "Clickwrap" more or less ended that issue.

For another thing, the terms are contrary to the way humans normally think about the objects they acquire. In England, as the retired solicitor and fellow Open Rights Group advisory council member Nicholas Bohm explained to me for the Guardian in 2008, this has always seemed particularly dubious; precedents have established that valid terms and conditions are a contract set at the point of sale. In his example, a notice in a hotel room the wardrobe warning that you leave items there at your own risk has no legal weight because the contract of was made at the reception desk.

Finally, with physical objects we take it for granted that we have the right to demand satisfaction - repair, replacement, or refund - if the item we buy is flawed. Obviously, this right has its limits. We can reasonably expect a refund or replacement for a piece of clothing that rips badly or discolors on first washing (assuming we haven't done something dumb). And we can reasonably expect the manufacturer to pay for repairs to a new car that turns left when you steer right, unstoppably leaks fluids, or whose battery overheats to the point of bursting into flames. With software, we are pretty much stuck with the bugs and security holes, and software licenses pretty much universally disclaim liability for anything that happens when you install and use the software. This was the subject of a failed attempt in the around 2000, to modify the Uniform Commercial Code to both hold software publishers liable for defects - but in return allow them to impose any restrictions they wanted.

The impact of this week's judgment will be interesting. How will it affect music, ebooks, DRM, movies, games? That's a question for the lawyers and judges in future cases.

We can just say this: what an amazing week. First this ruling. Then the news that the Anti-Counterfeiting Trade Agreement was finally and truly rejected by the European Parliament. And a British man will play the Wimbledon final for the first time in 74 years. I don't know which of the three was less likely.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.

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