Intellectual Property vs. The People's Rights

Discussion in 'Archive: The Senate Floor' started by RoboNerd, Jul 25, 2002.

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  1. Darth_SnowDog Jedi Master

    Member Since:
    Sep 10, 2001
    star 4
    That you willingly chose to participate in a business model that doesn't have a distinct competitive advantage or introduce something entirely innovative to the marketplace is your own problem.

    I'll give a few examples of what I mean.

    1. Rhythms NetConnections... my aunt's company. It failed because it lacked a strategic competitive advantage. It was reinventing the wheel and no one there could answer why a consumer would pay a reseller to do what an incumbent phone company, who owns the lines Rhythms leases, could do for as much or less.

    2. Rap Music... heavily reliant on samples. Want to avoid having mechanical rights issues? Don't be a rap artist. Rap music has become extremely successful as a format, but it had a very challenging decade getting off the ground with the securing of mechanical rights being a major obstacle.

    If you do attempt to reinvent the wheel... you're going to face roadblocks no matter what. The biggest roadblock being: "Why should I buy your product over the other guys?"

    In the world of reinventing wheels... companies are more successful when they are reinventing something tangible... Sony, Bose, Apple, etc. However, when they invent something intangible... the question of "Why is your product better?" is so much harder to answer.

    The more reliant your systems are on other systems, there's no getting around to having to deal with them. However, what I would suggest, if you are interested in obtaining access to the Windows market, try presenting Microsoft with a business case to prove why your product adds value to theirs... they may offer you a huge sum of money for it, may become interested in financing part of your venture, or they may at least sign a disclosure agreement with you to help further what is a value-added strategic alliance for them and their mediocre OS. They recently pumped a buttload of new money into R&D, which to me signals the fact that they know damn well, for all their strongarming, they are about to face a storm of competition against their ridiculously clunky, obtusely unintuitive, inanimate and boring platform.

    On the other hand, you could just get rid of the product, and dump it on someone in exchange for enough money to go fund the R&D for a more innovative, self-contained product instead of trying to grow and fight the juggernaut on their turf, before you have too many employees and not enough of a product.. and end up having to, like Rhythms, explain to 2500 people why you're cashing in your chips at 4am and they're getting laid off.

    This is what happens in the business arena of intangible technologies. A guy I know started a company called Concerto Technologies... nobody I know has heard of them... But if you go to Charles Schwab & Co., you will find that BigCharts.com (which is what became of Concerto Technologies) has an exclusive contract with BigCharts.com. BigCharts became a leader in online financial charting.

    Concerto/BigCharts went practically nowhere, but their founder and president was smart. He sold the company to CBS Marketwatch (suckers...) for millions and he's probably retired now... at age 35.
  2. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    Snowdog, you are missing what I am saying completely.

    That you willingly chose to participate in a business model that doesn't have a distinct competitive advantage or introduce something entirely innovative to the marketplace is your own problem.

    OK. Let's look at what I said again. I said nothing about business models, nor about competition in the marketplace. I fail to see why you are mentioning it. It is irrelevant to the topic at hand.

    I referred to Open Source Software (which is a development model, not a business model) and how I could be arrested for announcing a bug in my own code that I hold the copyright to. You can encounter a similar problem with proprietary systems as well. Unless you wrote every single line of code and hide every bug to come along, you could also run into the same problems with the law.

    I'm sorry, but free speech and consumer protection come before corporate profits in my opinion. If someone finds a major flaw in my car, I have a right to know about it, even if it could lead to my car being stolen. If someone finds a major flaw in the software I use (or am considering using), I should have a right to know as well. Those who discover and make public such flaws should not face the threat of criminal charges resulting in up to life inprisonment (if one bill currently before congress passes).

    The more reliant your systems are on other systems, there's no getting around to having to deal with them. However, what I would suggest, if you are interested in obtaining access to the Windows market, try presenting Microsoft with a business case to prove why your product adds value to theirs... they may offer you a huge sum of money for it, may become interested in financing part of your venture, or they may at least sign a disclosure agreement with you to help further what is a value-added strategic alliance for them and their mediocre OS. They recently pumped a buttload of new money into R&D, which to me signals the fact that they know damn well, for all their strongarming, they are about to face a storm of competition against their ridiculously clunky, obtusely unintuitive, inanimate and boring platform.

    You seem very hung up on the fact that I used Windows as an example. You can face the same problem with any software package, whether proprietary, public domain or Open Source. Are you then suggesting that every company should have to write their own OS, office suite, web browser, etc., just to avoid the possibility of criminal charges if they discover a major bug? Why stop there? Maybe they should have to design and build their own hardware as well.

    Again, I used Windows as an example where we had a problem. Depending on the company, you could replace Windows with Linux, UNIX, Mac OS, BeOS, OS/2 or any other OS out there and still face the same problem. I said nothing about needing access to MS's intellectual property (I hate that term because it is really not property), so no disclosure agreement or financing from them would be needed. I mentioned finding a bug and reporting it. They have a track record of ignoring bug reports unless there IS an exploit for it. Even then, they have often lied about when they learned about the bug. That is a common practice among many software companies today (such as the previously mentioned incident with HP). It is also wrong and the threat of criminal prosecution against legitimate security researchers needs to be eliminated.

    Let me say this as clearly as possible. I do not care about the economic factors in this discussion. The market can sort itself out. The criminalization of legitimate consumer protection needs to be eliminated. This requires legislative action. Any economic arguments you make are then irrelevant, and I am not disputing you on any of them. However, economic forces alone are not sufficient to solve a legislative problem.

    Kimball Kinnison
  3. Darth_SnowDog Jedi Master

    Member Since:
    Sep 10, 2001
    star 4
    OK. Let's look at what I said again. I said nothing about business models, nor about competition in the marketplace. I fail to see why you are mentioning it. It is irrelevant to the topic at hand.

    I'm mentioning it because, as one of four employees in a small business venture... you ought to have at least some basic concept of business strategy and tactics and how it factors into your work. If you worked for a humongous corporation, you could certainly ignore that and just focus on what it is you need to do. On the one hand you attempt to take ownership of a product you helped design, but you refuse to acknowledge responsibility for understanding the relevance of issues surrounding the scope of the business model you willingly chose to become a part of when you came to work for that company. Of course if you wanted all of the rights to this work, but none of the responsibility associated with the distribution and marketing of it, you should have started your own company and hire other people to market it for you... then you'd be in charge of the product's destiny... well, at the whim of the consumer.

    You see, what I'm saying is you want to have your cake and eat it, too. You are in no position to do so... ever. Even if you own a company, you will have market forces to deal with. But you seem to think that consumers and B2B operations have some sort of obligation to give a crap about what you make, and not care that you are jeopardizing whatever monopoly, illicit or not, they may have.

    I just think it's extremely foolish to assume they will magically stop noticing you're treading onto their preprogrammed obsolescence scheme protected by these, often deliberately introduced, bugs, just because some politician-on-a-rope introduces some legislation that happens to get passed for the time being just in time for elections. Whether the legislation is there or not, they will find a way to thwart you. It's simply bad business sense to put yourself into a position where they can.

    Nobody put a gun to your head and told you this is the product you have to design... Nobody put a gun to your head and forced you to work for a company which runs into such roadblocks... Nobody put a gun to your head and said "make only this type of software, which is dependent upon the smooth functionality of operating systems" (if companies are even interested in developing such a thing).

    If you cannot play the game, play a different game. Otherwise you will get beaten... because there is always someone in the room waiting to take your place. This is true for employees as much as its true for whole companies.

    Fact: The markeplace of ideas (and labor) is extremely competitive.

    Fact: You are replaceable.

    By the way, if you don't like the concept of "intellectual property" you won't mind if I "borrow" your code, and repackage it as my own product?

    What's the name of your product, again?
  4. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    I'm mentioning it because, as one of four employees in a small business venture... you ought to have at least some basic concept of business strategy and tactics and how it factors into your work. If you worked for a humongous corporation, you could certainly ignore that and just focus on what it is you need to do. On the one hand you attempt to take ownership of a product you helped design, but you refuse to acknowledge responsibility for understanding the relevance of issues surrounding the scope of the business model you willingly chose to become a part of when you came to work for that company. Of course if you wanted all of the rights to this work, but none of the responsibility associated with the distribution and marketing of it, you should have started your own company and hire other people to market it for you... then you'd be in charge of the product's destiny... well, at the whim of the consumer.

    Look, that is all off-topic. I provided enough information to illustrate my point about the dangers of the DMCA. The economic factors you bring up are irrelevant to the topic at hand. There is no need for you to lecture me and hijack this thread. Why can't you just stick to the topic?

    You see, what I'm saying is you want to have your cake and eat it, too. You are in no position to do so... ever. Even if you own a company, you will have market forces to deal with. But you seem to think that consumers and B2B operations have some sort of obligation to give a crap about what you make, and not care that you are jeopardizing whatever monopoly, illicit or not, they may have.

    I have never said anything of the sort. Please stop reading things into what I say. Let me rephrase: I agree with most of your economic comments.

    I just think it's extremely foolish to assume they will magically stop noticing you're treading onto their preprogrammed obsolescence scheme protected by these, often deliberately introduced, bugs, just because some politician-on-a-rope introduces some legislation that happens to get passed for the time being just in time for elections. Whether the legislation is there or not, they will find a way to thwart you. It's simply bad business sense to put yourself into a position where they can.

    OK. NOW you are returning somewhat to the topic at hand. You know, I agree with you that they probably won't stop trying to quiet critics. However, that doesn't mean that we should leave a law like the DMCA on the books. It is the individual company's responsibility to deal with their critics. They should not be able to have someone arrested just for wistleblowing on serious flaws.

    What would have happened if the person who discovered the problem with Ford Pintos had been arrested because he spoke out? How likely would others come forward about a possibly life-threatening design flaw? How about Firestone tires? Child car seats? Airbags? If a design flaw is discovered in one of these, you have an obligation to report it and make people aware of it.

    Yet, when a design flaw (bug, vulnerability, etc) is found in software, we're supposed to hide it from the public or face criminal charges? I'm sorry, but that's not right. As an engineer, I am held to a certain code of ethics that requires me to speak out. Among other things, it says that I agree
    to accept responsibility in making engineering decisions consistent with the safety, health and welfare of the public, and to disclose promptly factors that might endanger the public or the environment; (Emphasis added)
    By the code of ethics that Software and Electrical Engineers are asked to live by, the DMCA us unethical. It needs to be repealed.

    By the way, if you don't like the concept of "intellectual property" you won't mind if I "borrow" your code, and repackage it as my own product?

    I did say I hate the concept, but that I hate the term. What is called "Intellectual Property"
  5. TreeCave Jedi Master

    Member Since:
    Jul 28, 2001
    star 4
    I think the topic here is that people have a right to protect their creative stuff from public domain abuse. But consumers have a right to enjoy this stuff without someone playing Big Bro in their computer. It's the middle-men causing all the trouble - not the creators of the intellectual property, but the guys who make the money off it, and fund the money for its creation.

    Boycotting these middlemen helps somewhat.... but some artists NEED the middlemen, or they can't get their stuff done (major movies cannot be made without more funds than any individual other than Lucas possesses, for example). We need to get the middlemen under control through legislation so we still have them as a resource for creators. Then, if they insist on finding ways to circumvent the law, we boycott. It'll probably be a cycle for many years to come - fine tune the law, boycott those who work around it. Fine tune it some more, etc.

    Both ARE necessary. I think everyone's in agreement with that.
  6. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    Well, here are a few quick updates on some cases realted to this topic:

    Slashdot is reporting that Jon Johansen, the young man who wrote the DeCSS code to decrypt DVDs for viewing on Linux, has a court date, December 9, 2002. Evidently, Norweigen officials moved it back so they could find a tech-savvy judge to hear the case.

    Janis Ian has posted a follow up to her earlier article about the RIAA, MPAA and copyright laws. I find it interesting that she proposes a system that splits the difference between the positions that Darth_Snowdog and I have argued in other threads.

    A person in the UK (going by the handle Foon) has released a description of a serious design flaw in Windows that cannot be fixed. His research was started based on Jim Allchin's testimony during the antitrust trial saying that if some APIs for windows were released, no system would be safe from hackers. I hope he never plans to come to the US, since such a disclosure could get him arrested and make him face 5 years in prison and/or up to $500,000 in fines (per count). Such announcements are outlawed in the US by the DMCA. Microsoft has dismissed his claims as being the fault of individual programmers and unfixable.

    EDIT: ZDNet is reporting that if Rep. Bermen's bill gets passed, movie executives from the US could be arrested for travelling to Austrailia if they have conducted any hacking attacks against Austrailian citizens under that bill. Theoretically, they could even face extradition from the US for the crimes.

    Kimball Kinnison
  7. TreeCave Jedi Master

    Member Since:
    Jul 28, 2001
    star 4
    Don't companies have a responsibility to protect their product buyers from things like hacking? For just one example of what I'm talking about, Windows has been known to have hacker loopholes forever, and it's my impression they regard these as "bugs" they can fix AFTER meeting that all-critical demographically determined release date for the OS or upgrade. Is that correct, or is there some reason MS can't correct these things before release?

    If Ford released a car whose doors simply didn't lock, they'd lose a class action suit very quickly and pay some hefty damages.

    No computer is hack proof, of course. Macs are about as close as you get, and I believe that's as much due to the operating systems reliance on UNIX as to Apple's testing. But even if that is the case, MS chose to use DOS as the underlying structure for their GUI, and while they may have to work harder than Apple to make it secure, that still seems to me to be their responsibility.

    I will retract any part of this if someone has better information than I do. I'm no expert - I'm gleaning all this from reading and conversations with people whom I believe are experts.
  8. Kimball_Kinnison Chosen One

    Member Since:
    Oct 28, 2001
    star 6
    I had a major paper to write (and still have a big exam to get ready for), but I thought I'd dig up this old thread and gove a few updates:

    Two major court cases are going to be decided soon:

    Elcomsoft's trial has finished and the case has gone to the jury. The issue here is that Elcomsoft, a Moscow-based company, wrote and released a piece of software that allows to convert an encrypted eBook in Adobe's PDF-based format. This software mad Adobe's format compatible with Russian law. They then made this software available for purchase through their website. They then received a letter from Adobe informing them that the software violated the US DMCA. They removed the software from their website for the US, but still allowed it to be sold in Russia.

    To quote the ZDNet article:
    During his closing statements, [U.S. Attorney] Frewing characterized ElcomSoft as an unscrupulous company that cared more about making money than obeying the law. He said Moscow-based ElcomSoft knowingly created a product that stripped away copy protections, offered it on the Web, and took it down only when it learned that its U.S.-based distributor was going to cut off access to the program. Even then, Frewing argued, ElcomSoft sought distributors outside the United States.
    This is a Russian company, being prosecuted under the criminal provisions of a US law for selling a product in Russia that is not just legal, but required in order to legalize another proguct there. Am I the only one who sees a problem with this case?

    The second trial involves Jon Johansen. He helped write a program called DeCSS (<- Look! I may have just violated the DMCA!!!!) that helps unlock DVDs from the Content Scrambling System (CSS) encryption used to limit their distribution. The reason he did this was to allow legally-purchased DVDs to be viewed under "alternative" operating systems, like Linux or FreeBSD. He was arrested and charged with violation of copyright laws. Did I mention that he lives in Norway and is only 18? (He was 15 when he released the program.) Moreover, the prosecuter is having a hard time figuring out exactly what laws he broke in Norway! (Yes, his program violates the DMCA, but that is a US law, not a Norwegian one.) That trial is ongoing with a verdict expected sometime next week.

    Also, Lawrence Lessig argued his case against copyright extensions before the Supreme Court a while ago. Their decision is expected sometime in the next month or two.

    Kimball Kinnison
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