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August 30, 2013

As such

There was a brief but heady moment yesterday when we all read the headline New Zealand band software patents and thought: Wow.

That lasted a couple of hours, until I read Florian Mueller's FOSS Patents blog, which explains why that emphatically did not happen. Instead, he argues, whether there's a genuine ban or not will hinge on how the law is interpreted by the courts and the patent office: "...the courts and the patent office in New Zealand still have massive wiggle room to allow software patents." In a follow-up post, he provides a lot more detail behind his thinking, of which the most interesting part is his discussion of what kind of law would have been a clear ban. (In one of those you-couldn't-make-this-up details, I note that the Commerce Minister in charge of the bill is named Craig Foss. How utterly perfect.)

Mueller also points to two other assessments that largely agree with his: Techdirt, which calls the law "a worthwhile experiment to monitor", and Intellectual Asset Management, which says the range of what can be patented has only slightly narrowed and that the New Zealand courts will rely on UK case law for guidance. Since the UK has granted and continues to grant plenty of patents on software, it seems clear that these three experts are right: software will continue to be patented in New Zealand, just possibly not quite as easily as before.

Silicon Beat helpfully points to the relevant clause:

(1)A computer program is not an invention and not a manner of manufacture for the purposes of this Act.
(2) Subsection (1) prevents anything from being an invention or a manner of manufacture for the purposes of this Act only to the extent that a claim in a patent or an application relates to a computer program as such.
(3) A claim in a patent or an application relates to a computer program as such if the actual contribution made by the alleged invention lies solely in it being a computer program.

It all hinges on that "As such" - clarity only a lawyer could love.

Mueller argues that the widespread overreaction in the mainstream media has to do with the fact that patent law is poorly understood by anyone who's not an expert. That's fair, especially when coupled with the pressure to churn out stories. I suspect, though, that the reaction also reflects the pent-up frustration among many both inside and outside the industry who see software patents as a hindrance rather than the economic booster they're intended to be. See for example the Washington Post's Timothy B. Lee asking with real yearning why the US can't follow suit, citing a new General Audit Office report that highlights the particular problems with software patents.

For a long time now, the software patents have seemed like a big game of Chicken: plenty of people say they want to rein the patent system back in -- but no one's willing to be the first to lay down the application forms. I saw this in action back in 2004 at a Berkeley, California discussion of patent reform that pulled in lawyers from the heart of Silicon Valley.

My favorite quote, from a patent lawyer in a large Silicon Valley company who wanted everyone to end the arms race by simply agreeing to stop:

You can tell the system isn't working when engineers don't respect it. And they don't. They see patents being awarded to people they consider not as smart as they are for work they think is mediocre, and they think it's a game. It should be an honor to be granted a patent. We should raise the bar." Unlike a lot of people, he didn't, however, think it was necessary to get rid of software patents or even, necessarily the ultra-controversial patents on business methods. "We need to get rid of bad patents."

Judging from the preamble to the published versions of the bill the legislative effort started with the intention of tightening the law on what may be patented in order to bring it into line with other countries: "This low threshold can lead to broader patent rights being granted in New Zealand than in other countries, which can disadvantage New Zealand businesses and consumers, as technology that may be freely available in other countries can be covered by patents in New Zealand. This can discourage innovation and inhibit growth in productivity and exports." While it's refreshing to see *any* government recognize that intellectual property regimes can inhibit innovation as well as encourage it, harmonizing, rather the ground-breaking, was clearly the intent.

So, sadly, we're still in that giant game of Chicken. If the US wants to abolish software patents it's going to have to do so as a ground-breaker. And it's always hard to be the guy who puts down the weapons first. Yet there are hints that even the US is beginning to see the problem.

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. Stories about the border wars between cyberspace and real life are posted throughout the week at the net.wars Pinboard - or follow on Twitter.

August 23, 2013

First-world problems

A friend who for a while worked for a large company with offices all over the place used to recount the complaints he heard people make. Of which, my personal favorite was, "My twin 30-inch monitors are blocking my view of the mountains."

Closer to home, my actual neighbors take it personally when too many alien cars are parked on their street ("I don't want to have to see them" says one) and gripe about the noise of the planes from Heathrow (which in a different part of their brains they're glad is conveniently close for when they fly on vacation to Australia or Macau). It's the unselfconscious naturalness with which people use the word "nightmare" for their broken washing machine or the tiny dead pixel-sized flaw in the paint on their Jaguar E-type that makes entertainment out of the lack of perspective and arrogant ease of life in a country where one does not have to walk five miles to bring back water in a bucket.

Sometime in late 2008, when the recession was just beginning, I heard a Russian economist expounding on American radio the reasons why Americans would be unable to cope with a real economic depression, as opposed to Russians. Russians, he said, are used to living in small spaces with their extended families. Russians, he said, help each other. Russians, he said, are used to getting up and doing stuff for themselves instead of sitting around on couches watching TV. I thought he was full of garp. For one thing, Americans may be flung far from their relatives, but there is a strong local community culture built around friends and local interests, especially churches, that he was completely either ignoring or ignorant of.

In a case of real economic breakdown, I feel sure that neighbors with big lawns backing onto each other would gear up to share the space to grow vegetables and raise chickens and maybe a couple of goats. I have no trouble imagining older neighbors teaching skills like cooking, preserving, sewing, and wood and metal working to younger ones. And so on. It's not the life today in suburban Anywhere USA, but people do what they must to survive. Few people anywhere become couch potatoes because that's all they can do. They do it because they *can*, a very different situation. People change when circumstances change.

Conflating the US and UK somewhat here, this month has been a scary vista of circumstances changing. For years, privacy advocates have lamented the public's apparent lack of interest in privacy. Companies selling privacy-enhancing technologies have come and gone, from DigiCash to Canada's Zero Knowledge Systems to the lemming-like march to pay with personal data for "free" Internet services. The security services' reaction to the Snowden and Wikileaks revelations - the detention of Guardian journalist Glenn Greenwald's partner, David Miranda, the raid on the Guardian, the treatment of Bradley Manning - suggests that either they believe the public really doesn't care or they want to intimidate us to make sure we don't dare to care. Bruce Schneier believes something close to the latter: he calls Miranda's detention poorly controlled anger, the most dangerous explanation of all, though he also thinks the real target was documents Miranda was carrying. At Slate, William Saletan calls the detenction an abuse of anti-terrorism law.

At a debate in July that I attended, Duncan Campbell - whose own work exposing the Zircon spy satellites got New Statesman and the Glasgow site of BBC Scotland raided in 1987 - argued, "The walls of secrecy have to come down. We are an adult society. We have learned that terrorists are among us." Later, referring to a comparison made by German premier Angela Merkel between PRISM and Tempora and the activities of the Stasi: "We have lost the memories of fear that are so fresh in Germany. Heaven forfend that we should have to go through these experiences again to learn why it matters. But there is a generation of hackers and snoopers who have forgotten that it matters." Instead, he said, "We can have more trust if we get these programs out in the open." What he's asking for is a complete cultural change in the security services, a tall order they are going overboard to resist - and yet, as Charlie Stross pointed out this week, it may be forced on them through generational change.

Separately, a friend wondered: if David Miranda had been Glenn Greenwald's heavily pregnant wife, rather than his husband, would it have been clearer to his detainers how the world would view their actions? Another asked, "Do they *want* to make more terrorists?"

Don't we all want easy, comfortable lives? Where secure email services like and Silent Circle can operate for those who, really need them - and where those people aren't us? Where the indefatigable volunteer owner of a hugely useful site like Groklaw doesn't feel she has to stop explicating the hard parts of patent law? Where a newspaper publishing controversially in the public interest might be taken to court, but not raided? Today these are first-world problems.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

August 16, 2013

A merger too far

The sort of people who were scrutinized in the 2001 novel (later movie) Up in the Air and obsess over every little perk to which the number of miles in their frequent flyer accounts entitle them - Did they just let that no-status gate louse board ahead of me? Did he get seven salted almonds and me only six? - have spent some months mulling over the likely ghastliness of the proposed merger between US Airways and American Airlines. It would reduce the number of major legacy US carriers from four (Delta, US Airways, American, United) to three. It would likely be attended with yet more whittling at the value of those frequent flyer miles (I discovered this week a "free" transatlantic ticket now costs miles plus about $200 cash per person). For average consumer flyers, life would likely continue to get more expensive and much worse. As the Washington Post noted this week the ever more luxurious seating, lie-flat beds, and even private suites being installed for first-class passengers are squeezing the space out of economy class seats even while the passengers themselves expand. This is the hollowing out of the middle class as seen through the peculiar lens of air travel.

Just as some had begun focusing instead on the wifi and power outlets on AA planes, the Department of Justice filed suit to block the merger, citing, among other things, the airlines' own internal emails to explain why. The complaint (PDF) makes fun reading if you want to know what these companies really think about us, their customers.

The DoJ rarely brings an antitrust case it doesn't win - most recently AT&T's blocked 2011 acquisition of T-Mobile's US operation. So, despite the airlines' vows to fight, it seems likely that either they'll have to make some big, currently unimaginable concessions, or wave good-bye to their vision of higher ticket prices and gee, can we get away with a $100 charge for a second checked bag? During the Carter administration, when fellow former Cornell Savoyard, Alfred E. Kahn, began deregulating the airlines he called them a cartel, as he told IEEE Spectrum in 2002. The emails the DoJ quotes suggest their thinking hasn't changed much. (You have to love an airline CEO who documents his inclusion of extra legroom in the category of "stupid stuff".)

The early years of deregulation certainly created low-cost airlines such as Jet Blue and Southwest; but in very much the same pattern as the one we've seen since the 1984 AT&T break-up, consolidation since has returned the business to something like the state it was in before Kahn got busy.

Classically, there are two kinds of antitrust actions. The first - as in Standard Oil or the movie studios - breaks up content and distribution because owning both gives one company leverage to control the market. The second, as in the US/AA merger, blocks the concentration of a market into too few hands. For years I've seen network neutrality as conflict of the first type: cable companies like Comcast and Virgin sell both access and content; telcos like BT want to get into content provision, and Google is working on becoming a broadband provider. When you view network neutrality this way, banning servers, as Comcast long has for residential customers and Google Fiber was lately castigated for doing, is a perfect example. Residential broadband customers' economy connections allow them only to be consumers; to be a content provider either you pay more for a business service or you upload everything to a host that does it for you. Ultimately, the whole package of distribution and content in our field will be hardware, pipes (wireless or fixed line), and content. Of the four main companies placed to do this - Google, Apple, Microsoft, Amazon - Google is the closest to having the whole package.

But here's a question: what does damage look like in an antitrust action of the second kind with respect to the Internet? Take, for example, email. If average consumers can't run servers (imagining a world in which running your own mail server was a lot easier than it is right now), then they must rely on third parties. Chiefly, at the moment, that's Apple, Google, Microsoft, and Yahoo!. Consumers aren't paying in money for these services; they're paying in data - that is to say, privacy and control. While this week's fuss over Google's comment in a court filing that users have no expectation of privacy when they hand their data to third parties was probably overblown, there's a real issue there. Also this week, two privacy-protecting email services - Lavabit and Silent Circle were killed off, apparently to avoid having to comply with government demands. While that's not Google-Apple-Microsoft-Yahoo!'s fault, it means the opportunities for alternatives to pay-with-data services continue to shrink.

In the case of the airlines, anyone who flies can see what's happening to ticket prices and in-flight comfort. On the Net, will antitrust authorities understand that the price of free services must be measured in other ways? Will they understand the opportunity cost to consumers? We can only hope.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

August 9, 2013

The bully season

For much of this year I've been helping write and edit guides to coping with and preventing cyberbullying - the kind of thing, in fact, that has been cited as playing a role in the death by suicide of 14-year-old Hannah Smith. The upshot may be bullies on the brain, because this month they seem to be everywhere one looks. In escalating order:

Item: In one of those disputes that arises from time to time in the US because of the persistent battle over who should pay whom, customers of Time-Warner cable currently cannot view CBS or its affiliated channel, Showtime. For those in the UK, this is about equivalent to Virgin cable deciding to block ITV. It is as clear a demonstration of why network neutrality is about antitrust as one could wish. Time-Warner argues that it deserves more money for delivering the audience to CBS, a broadcaster and producer of content. CBS argues that if it didn't provide content, no one would subscribe to Time-Warner. To make its point, CBS is blocking Time-Warner cable Internet subscribers from accessing content on its Web sites. Caught in the middle are consumers, who continue to receive cable bills in the full amount for less than the service they're paying for. As Ken Levine wrote yesterday, We're all just pawns. The only winners are file-sharing sites. There can be no greater impetus for unauthorized downloading than a complete inability to access content for which you have legally paid.

Item: over at Knowledge Ecology International, James Love writes that Michael Froman, the US trade relations ambassador, wrote to the US International Trade Commission objecting to the injunction stopping Apple from violating a patent a court ruled belonged to Samsung. Groklaw has more on the way this particular patent dispute has turned into let's-play-national-favorites. Again, the pawns here are consumers, who care very little who wins as long as they can get smart phones that are easy and fun to use and who, though the prices attached to those phones, are paying for both sides of this dispute. Historically, Apple does better focusing on (insanely) great new ideas than it does in suing the old ones. But litigious behavior, too, is part of the legacy of Steve Jobs, who vowed to destroy Android because it was a "stolen product". That's Apple's excuse. And the US?

Item: I love online shopping probably more than the next person, but this Mother Jones article outlining the working conditions for those working in the warehouses of a company that could be Amazon.com and the Democracy Now follow-up give me pause.

Item: In a particularly vicious kind of attack, a number of otherwise innocuous sites, including that of a furniture retailer, were hacked so that users following links from pornography sites would be taken there and infected with malware while being shown images of child sexual abuse. As Charles Arthur finds in the Guardian, the purpose of the images was simply to scare people into not getting their machines cleaned. A not unreasonable fear: arrests based on repairfolks finding such material on people's machines have been known to happen. This is a vicious attack for all concerned: the businesses whose sites were hacked may find themselves on blacklists and the hacked individuals are at risk for both identity theft and the possession of illegal images.

Item: It's hard for me to imagine a more innocuous campaign than one to get Jane Austen's face onto a £10 note. And yet the successful outcome get Caroline Criado-Perez rape threats on Twitter. After some initial hesitation, the wheels of Twitter and the police cranked into gear and there have been arrests. Good: these threats were not just another misunderstood Twitter joke. And yet: with all the regulatory posturing David Cameron has been doing lately, we must be careful not to return to the days when it was common for media to warn women that the online world was too dangerous for them to handle. I was pointed this week at an excellent essay by Laura Miller from those days (unfortunately, not online: you must source a copy of the book Resisting the Virtual Life in order to read it) warning that characterizing cyberspace as the "frontier" and women and children as endangered is a narrative that inevitably leads to regulation. Criado-Perez didn't need new regulation to control Twitter or the police; she just needed them to *act*.

Item: A thirteen-year-old girl who was the victim of sexual abuse by a 41-year-old man also needed the justice system to act. And it did, up to point: it got the abuser arrested, prosecuted, and into court. At which point the whole thing broke down. The prosecutor described her as looking older than 13; the judge called her "predatory" and said she egged her abuser on. This is the nastiest, most profound, most personal kind of bullying because it comes from the very people who are supposed to be the ultimate repositories of society's trust. And it didn't happen online, it happened in real life. If David Cameron really wants to protect children, *this* is where he should start.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

August 2, 2013

Sleeping with the enemy

Sometime in the mid-1990s, when the barrage of daily postal mail was at its height, I started suggesting to PR people a campaign to send out all press releases on the backs of postcards. The suggestion was not well received, so I smirked a little when PR people started posting headlines and links on Twitter.

Dealing with government press people was always a different experience, however. They were far less likely to be sending you screeds of (mostly) unwanted paper or phoning you to ask if you'd read them, and much more likely to be the obdurate wall between you and the person you'd like to talk to. I recall the Home Office as the most difficult: you'd never get past the press desk, and what you'd eventually receive, in answer to the list of questions you were forced to submit, was a couple of anodyne quotes attributable only to "a government spokesman". Hence, I think, the aggressiveness of the British press when they did get a chance at these folks - I say aggressive, Conrad Black, as his former employee Ben Rooney (@benjrooney) pointed out on Twitter this morning, says destructive and irresponsible. I figure it's the same frustration that leads a driver to cover a few hundred yards of city street at 50mph after being stuck in a traffic knot for ten minutes. Your best shot was (and is) to grab these people when they spoke at conferences.

Yesterday's edition of tea camp, the monthly meetings that pull together dozens of digitizers from all parts of government, featured a varied discussion of what that's meant for government press teams. Twitter accounts. Facebook pages. DEFRA has a tumblr on how they're tackling bovine tuberculosis, run by one enthusiastic person.

"We don't have press releases any more," said Christina Hammond-Aziz (@hammondazizsays), from the Food Standards Agency. Instead, they have Web stories, which anyone can read or subscribe to via RSS, and as not-different as that sounds, it's an improvement over the situation that prevailed for a while, which had one team writing a press release and another writing a Web story that linked to it.

On the one hand, you have to applaud initiatives that so clearly widen the range of people these communications teams will engage with. It's surely right that you shouldn't have to be a journalist on a national newspaper (or an academic expert answering a formal consultation) to be able to engage directly with the people in charge of making and communicating policy.

On the other...take this quote, from Stephen Hale (@hmshale), head of digital for the Department of Health: "The press team at the Department of Health is brilliant at what they do. They're a crack team - they can quieten down or amplify a story if they need to." And this one, from Penny Fox (@wonderlanded), deputy head of news and digital at DEFRA: "We have ten Twitter accounts solely about policy." Her colleague, Verity Hambrook (@verityhambrook), re the policy team: "[they] can use their account to target the right group of people."

I like the idea that engagement with those genuinely interested in government policy is widening out and becoming more flexible. But - and this was the question I asked - do these many different forms of engagement feed back in the sense of recanting when the response clearly shows the policy is wrong? The answer - from whom I'm not sure now - was yes. Instead of just doing ordinary 12-page PDF consultations, they do SurveyMonkeys, and the results of those and follow-up discussions feed back into new SurveyMonkeys. Throughout, they make sure the policy teams are aware of the criticisms they're getting.

Today, as if by magic, along came what could prove to be a very good test: the Home Office (@ukhomeoffice) has been boasting by tweet about sending out UK Border Authority agents to tube stations to spot-question people they think might be illegal immigrants and the 139 arrests it's made (there's also a < a href="https://www.gov.uk/government/news/immigration-offenders-arrested-in-home-office-raids">press release - er, Web story. As myriad twitter responses point out, such questioning is not only racist but illegal. Under section 31.19 of the Home Office's own guidelines (PDF), immigration officers must have information that "constitutes reasonable suspicion" and questioning must be consensual; they do not have the power to compel someone to stop or answer questions and they have no power to arrest you if you walk on and ignore them. I am a foreigner myself, and although (white, 59, female) I'm hardly likely to be stopped, Britain today suddenly seems less of a safe place for me to live. The operation offended even the UK Independence Party, quite possibly the people it was supposed to impress. <.p>

If the notion of feedback into policy has any meaning, the Twitter storm should make the Home Office stop, check with its lawyers, apologize, and change behavior. Let's hope the behavior the Home Office changes is less its club-footed use of Twitter and more its treatment of ordinary people going about their daily lives.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.