Software IP and Games – which model applies?

At the moment, video games, because they are software, are covered by copyright.  But traditionally, games were covered by patent.

Hmm.  I’ve argued before that software should be sui generis, governed by a hybrid model of patent and copyright:

The Source Door: When and How Far should it be opened?
Reforming the Intellectual Property Regime for Computer Software through a Hybrid Protection Model.

Perhaps video games should provide the legal arena for this battle.  How does one then fit user-created collaborative content into such a model?

I smell a thesis coming.

Remembrance Day – Poems by Wilfred Owen

I wrote a paper on these two poems a number of years ago.  I found them much more powerful than In Flanders Fields. Wilfred Owen was a British soldier who died a week before the Armistice that ended World War I.  I’ll let them speak for themselves: Read the rest of this entry »

Are there benefits to “piracy”?

The pro-copyright, pro-DMCA, anti-counterfeit lobby groups would have you believe that all unauthorized reproduction (and distribution), colloquially known (inaccurately) as piracy, is horrid for the industries concerned, and is destroying them.  They go so far as to call it theft, which it isn’t.  It can’t be reduced to a single term, like “theft” or “piracy”, because it is not actually a crime, but the commission of an otherwise legal act made tortious (wrong in a civil, as opposed to criminal way) by the lack of authorization.  Theft is in and of itself a crime, as is piracy.  Copying is not.  Copying without authorization is a civil wrong.  I’m going to end that discussion before I get into a rant.

Anyway, I want to take a different tack:  Many say that unauthorized copying actually benefits the concerned industries.  Do you think this is true?  If so, which industry benefits the most?  I’ve created a poll, which is to the left of this post, and I would like you to let me know what you think.  Feel free to comment to this post.  I’ll repeat the options below:

Which industry benefits the most from unauthorized reproduction/distribution (i.e. “piracy”) Sorry, there are no polls available at the moment.:

• Software - Standards are reinforced and the companies profit through the necessity created by ubiquity. Ubiquity creates a spiralling increase in demand.
• Mainstream music - Popularity thresholds are crossed that are similar to the “standards” concept. The overall popularity increase yields revenue through the popularity-increases-demand model, with a net increase over the everything’s-paid-for model that has lower popularity; touring revenues further increase from the increase in popularity.
• Long-tail, independent label, and other rarer musical acts – The exposure through shared music now is no different from years ago; fans of these genres are likely to purchase albums (often directly from the artists at higher profit margin) and go to small live venues.
• Movies - Popularizing the brand in anticipation of the sequel is more important than initial returns. The movie industry in now a branding and franchise industry. In an industry now increasingly dependent on sequels and the application of the “franchise model” to entertainment, building a brand through any means whatsoever is beneficial.
• No one - Everyone loses when unauthorized reproduction is rampant. Bring on the Copyright Czar!

Read the rest of this entry »

Michael Lifshitz is asking for your support

[Note from the Admin:  Michael Lifshitz is a friend of mine from many years ago.  He is a chartered accountant, financial advisor, and holder of an MBA.  He is also a stand-up comic.  Michael has a physical disability and has run into an issue with the Quebec government witholding further adaptive assistance, even though the current problem is likely due to a restriction they themselves have imposed.  Michael is asking for support with a petition, and I've given him some well-deserved soapbox space here. --Jeremy]

Dear Friends,

As many of you are aware, I use an electric wheelchair to get around longer distances. In order to transport the wheelchair, the van must be adapted. The cost of the van adaptation is $32,000.

The Societe Assurance Automobile du Quebec has a program by where it pays for a van adaptation every five years. When I received my first van adaptation, I purchased a van with every expectation that it would last the five years. At the time I had wanted to purchase a Japanese van, but the only models which the government would adapt was a Ford, GM or Dodge. Read the rest of this entry »

Competition and the NHL

It’s hockey season, and that’s the reason for the poll that’s been on the sidebar.  However, a reader asked me to open it up for discussion (i.e. put it into a post) so that’s what I’m doing.

The issue is this:  Jim Balsillie, if I’ve got my facts straight (and feel free to correct me in the comments), wants to open an NHL franchise in Hamilton.  Since the NHL isn’t watering down expanding again, his remaining option is to purchase and move an existing franchise, preferably one that is neither profitable, popular, nor culturally significant to the locals (e.g. Nashville, unlike Winnipeg, but I’ll do my best to avoid that rant).

The NHL is blocking the move for spurious reasons.  Some discussion has focused on questionable dealings between existing team ownership groups and the Commish, Gary “How many sports can I destroy” Bettman.  Without any facts to go on, I’m not going to suggest that there is any truth to those suggestions.  You can look them up yourself and decide.

Other discussion has suggested that Toronto is blocking the entry of a competitor in the Southern Ontario market.  There are three NHL teams already in the neighbourhood (Toronto, Buffalo, and Detroit), and more than enough population in Hamilton and the rest of Southern Ontario / Western New York / Eastern Michigan to at least entertain another franchise and let it sink or swim on its own merits.  But the League refuses. Read the rest of this entry »

Leadership Qualifications in a Democracy

Power to the people, right?  That’s the rallying cry of democracy.

A government of peers, the message of Gov. Sarah Palin, is not a new message.  Stephen Harper rode that message to the Prime Minister’s Office here not long ago, his road greased by the neoprene wetsuittails of Stockwell Day and the Brylcreem of Preston Manning.  Harper’s predecessors in the new Conservative Party, but a shadow of the Progressive Conservatives of this country’s history, were cheerleaders of a “grassroots” movement.  For allt he folksy wisdom seemingly encompassed by a grassroots movement, it is actually a term that, when you think about it, means being governed by the lowest common denominators of society – those denominators being both low and common.

You’re going to accuse me of being elitist, as though that’s a bad thing.  When taking an oath to execute the highest governing offices in a large and variegated populace, a certain quantum of elite – meaning top-shelf, high-end, and superior in quality – talent is a good thing.  Intelligence, education, experience, and the rare gift of synergistic comprehension – and reconciliation – of opposing concepts are qualifications to these offices.

I am going to go out on a limb here, and say something that sounds a bit boastful, but for a reason: Read the rest of this entry »

Victoria venue to infringe civil liberties

The Save-On Foods Memorial Centre in Victoria wants to take B.C.’s anti-smoking legislation a bit further.  Not only will they enforce the existing No Smoking laws, they will also prohibit the innocuous carrying of cigarettes by patrons on the premises.

Let me try that again:  You can’t smoke there.  Fine.  That is the law and it has bona fide justifications.  You also can’t walk in with a pack of cigarettes in your pocket.  In the words of Jon Stewart, “Whaaaaaaat?”

“Smugglers will have their cigarettes confiscated in the same way drugs or alcohol would be following a random search.”
-Victoria Times Colonist: Arena bans cigarettes; smoke breaks snuffed out.
September 5, 2008.
http://www.canada.com/victoriatimescolonist/story.html?id=026a6334-bb15-4fe9-870f-dacddbf4fa84

It has taken me a while to post on this because I have been struggling to find some cases where a venue has actually tried to enforce such a policy, not based on contraband or unlawful possession or consumption in a public place.

Searching through Quicklaw (at which I am something of a ninja, since that’s my day job), I uncovered the not very surprising truth that there are no cases where a movie theatre has been taken to court over seizing junk food in your pocket, or a concert venue over seizing other items not directly related to public safety.

So I had to dig deeper.

This is how the issue will break down if it is enforced and followed up in court:

Read the rest of this entry »

Alternatives to C-61, part II

Here’s the rest of that post:

GOALS

The goal of any legislation is to balance concerns of interested but competing parties, and to approach this balance, as much as possible, with a public interest bias.

The concerns were these: Read the rest of this entry »

Alternatives to C-61: Statutory concerns for the protection and encouragement of creative works

I want to suggest an alternative paradigm to the statutory regime for creative works as intellectual property, a.k.a. copyright.  I’m not going to get into detailed explanations of the existing Copyleft and other alternative paradigms to copyright.  But I’m going to borrow from them, and from discussions I’ve had with industry players and legal theorists (lawyers and academics) to, I hope, open some discussion on what else can be done.

This is not meant to be a set of specific fixes to C-61.  Prof. Michael Geist has been doing an exceptional and detailed job of that on his blog at http://www.michaelgeist.ca.

Instead, these ideas presume us not already headed down C-61 Avenue, but at a fork where C-61 is one of the roads being touted.  It is not the only road currently available, in the sense that one can opt out and instead choose licensing options to circumvent copyright.  Rather, these ideas are ways to do something different from C-61 entirely, but that would still be a statutory avenue rather than the contractual private road of licensing.

Let me restate that analogy:

Read the rest of this entry »

Hedy Fry’s Copyright Balance

The electoral district in which I live is called “Vancouver Centre.”  My elected representative is the Honourable Member of Parliament, Dr. Hedy Fry.  Dr. Fry is something of an activist; she has always been an outspoken representative of her constituents.  Generally, I like her.  I vote for her.

A fellow constituent of Vancouver Centre, Chuck LeDuc Diaz, runs a blog called Mad Analogy.  At his blog, he posted a letter he received from Dr. Fry in response to a letter he sent her informing her of his concerns regarding Bill C-61, An Act to Americanize Amend the Copyright Act.

Chuck’s post dealing with, and including, Dr. Fry’s letter:

http://www.madanalogy.com/2008/07/hedy-fry-on-c-61-canadian-dmca.html

Dr. Fry’s criticisms of C-61 are not shy:

This Bill does not serve either consumer or creator well.  It prescribes narrow, punitive solutions to a complex problem.  In fact the Bill could well have the effect of curbing the use of digital technology, to the extent that it becomes useless.  This would be a pity!  As well implementation of the measures in the Bill would be nearly impossible, unless one abandons all privacy rights or imposes locks on the digital technology that severely limits [sic] its application.  How to monetize digital technology to reward the creator and allow free and open use by the consumer is challenging.

Dr. Fry’s fears are correct,  I would like to assist her on one political point:  It would behoove her to trumpet Canada’s present privacy laws – leading examples on a global scale – of the protection of individual information rights vis-a-vis both government and (here’s where we really shine) corporations.  The potential damage to privacy rights not only brings us more in line with a U.S. capitalist-fundamentalist approach to privacy, it damages our international reputation, which has made us an ideal trading partner for European companies who cannot infringe their own national policies through trade.  In other words, European companies like to trade with us because our privacy laws make it easy for them to keep themselves clean by their own standards. Read the rest of this entry »