Intellect or Insanity, Jonathan Klinger's Blog

The ruling in C 48511-07 Dr. Dov Klein v. Proportzia ltd will most probably not be in any future cyberlaw schoolbook unless Google, one of the defendants (or actually three of them), will decide do appeal even though such a small amount (around 12,000 US$) was ruled against it and Proportzia. In brief, before we discuss the problems of this ruling, let’s tell the story. Dr. Dov Klein is a plastic surgeon. One day he found out that Proportzia, a clinic providing cosmetic surgery and other beauty treatments, decided to purchase AdWords under his name. Klein did not like the use of his name and decided to sue Proportzia as well as Google, the service provider. The Magistrate Court of Tel Aviv-Jaffa ruled that Proportzia and Google are liable for invasion of privacy and must compensate Dr. Klein.

Google AdWords lawsuits were a big issue in the past (where the most famous was Government Employees Insurance Co. v. Google, Inc., No. 1:04cv507, see more at Eric Goldman’s blog). In Israel, however, there was one material ruling, OP 506/06 Matim Li v. Crazy Line, where the Israeli District Court of Tel-Aviv ruled that as long as the ad itself is not misleading, there is no problem with purchasing ads using someone’s tradename. But here the court needs to explain why he deviated from this decision, so he ruled that “These are keywords which contain a personal name, and not a trademark, and therefore you cannot say that in regards to this name the internet is an advertising space similar to others. So it would be adequate to rule that in regards that without the personal name’s holder’s permission, the name shall not be used for advertising”

The court goes with the infamous publicity rights and determines that when the use use is of someone’s personal name, and not a trade name, then the use has to be with permission of its “owners“. However, here already stands a first problem in regards to publicity rights. Dr. Klein is a celebrity, and as such he has not right for privacy (in regards to publicity rights). Israeli courts ruled that when a person uses his name for trade, he cannot later state that he does not want others to rely on such business name. In a recent case, the court ruled that “the right for privacy is a right that protects the emotional-personal interest of a person, his autonomy and his private matters, but not his financial interests” (C 534-08 Hava Koren v. Shai Cohen). Meaning, the rationale behind publicity rights apply where a person does not wish to be known publicly and is coerced to do so, not where he is already known.

The second problem here is where is the border between a person’s name and a trade name. Is Ford protected under this ruling, being the surname of Henry Ford? This is the incoherence that later calls of over-litigation and pays the lawyer’s retainer is bad lawsuits. If the court had a reasonable rationale, it had to provide it in a detailed manner, even if it means writing 50 pages instead of 14.

Now, after having said that, the real problem arises. As the court did not provide reasoning for its ruling, it did not explain where Google’s active involvement that provides incurring liability on it. That’s why Google did not know, and was not expected to know, about the existence of a person named Dr. Klein and that he does not want others to use his name. The court here goes against any other service provider liability case in Israe (C 567-08-09 ALIS v. Rotter, C 1559/05 Hemda Gilad v. Netvision, C 64045/04 Al Hashulchan v. Ort).

The fact that the court did not provide reasoning to its ruling is a problem. It does not let us understand why it decided that Google is liable and does not let us understand the issue. We have to wait and see whether Google appeals this.

[Originally in Hebrew]

A recent Israel court ruling stated that linking to copyright infringing content does not constitute a direct copyright infringement (CA 567-08-09 ALIS – Association for the protection of cinematic works v. Rotter.net Ltd) was quite an interesting one. Alis, the Israeli equivalent of the MPAA sought a popular forum website, Rotter.net, in regards to user generated content in two of its popular forums: Downloads and Movies. Alis’ claim was that by providing links to infringing content, Rotter is liable for direct infringement.

The court recognized that notice and takedown is the correct way to handle user generated content and ruled that Rotter is not liable for any user generated content as long as it removes the infringing content promptly. By ruling this way, the court created the so requested connection between the recent Supreme Court ruling in CA 5977/07 Hebrew University v. Schoken (which dealt with the university’s liability for coursebooks distributed by students creating infringing content) and the virtual world (and in regards to notice and takedown under Israeli law, see RCA 1700/10 Avi Roy Dubitzky v. Liav Shapira, C 1559-/05 Hemda Gilad v. Netvision and C 64054/04 Al Hashulchan v. Ort).

However, the main issue with notice and takedown was the amount of actual knowledge the court required: The court determined that it is not enough that Rotter is reported that a specific forum has infringing content, but they have to have actual knowledge of any specific infringement. However, the court opened a latch for “bad forums”, meaning that a place where the service provider knew about a material amount of infringements it shall be liable to the forum’s activity. In the court’s words “the presumption is that the website’s owner is aware that he is assisting in the existence of direct infringements, and that such assistance is actual and material contribution to them. Therefore, the burden is on that website owner where a suspected forum exists to prove that the existence of the forum serves a legitimate purpose or that he was unaware of the infringing activity (and if so, he shall not be liable until he was notified that this is a “bad forum”“. Therefore, the court actually narrowed the service provider exemption from liability.

In the court’s opinion, “as a rule of thumb, we can determine that a closed forum, where in a specific time there are more than 10 links to infringing sites, and that the messages including links to infringing sites constitute more than a quarter of the substantial content of the forum (meaning, messages that are not information requests or responses to other messages), should be suspected as a “bad forum”“. Meaning, the court determines that a forum that has more than 10 infringing links, and when these links are more than a quarter of the content, even if the website owner had no actual knowledge, he may be liable. This ruling may be dangerous, and having being a district court one, we should put our fingers on the pulse to see how it goes in the future.

From where did the court conclude the numbers? why didn’t he include the number of absolute postings in the website as a criteria (in contrast of forum messages), why didn’t it inquire whether opening a forum requires the owner’s consent? all these questions were irrelevant to the ruling and were not included in the court’s opinion.

However, this part of the ruling is not the material part, but only the part easy to understand. The important decision was in the question whether directly linking to an infringing content on another site constitutes as direct infringement. Here is the time and place to remember how copyright works: actually, there are specific actions where the copyright holder is the only person entitled to perform, and the rest of the actions are allowed. These are specified in clause 11 to the Copyright Act. One of these rights, in Israel, is making a work available to the public.

Alice tried to claim that linking is making a work available to the public, defined as “performing an action in a work so that people from the public may have access from a place and time of their choice”. However, the court rejected this claim and said: “creating a link which transfers the user directly to the infringing site (either to the homepage or an internal page) is not “making a work available” … First, creating the link is not “performing an action in a work”; second, the link, by itself eases people from the public to locate the infringing work, but it does not create the access. In other words, the work has already been made available by the infringing site and therefore linking to that site cannot be deemed as “making a work available”“.

The court determined that there is no actual direct infringement (but may allow contributory, secondary or vicarious ones) by linking, this is a blessed interpretation of the law, which was not always acknowledged by the court (it was, however, ruled so in 11-cv-20427 Disney v Hotfile).

The meaning of this ruling may be relevant, however, to other torts. For example, could a person being slandered in a website sue all people directly linking to it? It seems that in such case, this ruling goes in favor of the actual logic.

[Originally in Hebrew, here]

Software patents are a problem, not a solution; that’s why when the Israeli Patent Registrar wanted to hear what the public thinks of them, we (at Hamakor, Israel’s Free Software and Open Source Association) wrote a detailed paper about it; in the end, the Israeli Patent Registrar gave a final decision stating that software by itself is not patentable in Israel [Hebrew Link]. However, other jurisdictions may not think the same.

That’s why corporations like Microsoft tend to use software patents as a strategic whip; for example, Microsoft approached HTC with a patent settlement offer, that will cause HTC to pay 5 US$ for every Android mobile device it sells. The thing is that Microsoft directly competes with Android with its “Windows Phone” operating system. Therefore, Microsoft makes more money when its competitors sell Android devices than when it sells its Windows Phone. But, of course, that the problem, not the solution.

Yesterday, David Drummond, Google’s chief legal counsel, ranted in the official Google blog about this conduct (covered also by TechCruch). He said that ”
A smartphone might involve as many as 250,000 (largely questionable) patent claims, and our competitors want to impose a “tax” for these dubious patents that makes Android devices more expensive for consumers“. The thing is that Drummond is also relating to the problem, and not the solution.

Recently, Android had became less and less of Open Source and more proprietary, where Google refused to release Android’s source code. Also, the choice of non-GPL license caused it to be less free. Of course, this lead Google further from the Solution.

The solution to Patent Trolling in the Android market segment is inherent with free software: detach the software distribution from hardware distribution. When people can purchase the devices and then install their OS at home, when they download it for free from the Internet, then these Patent Trolls will have to go against the actual distributor: Google.

As you know, Google, unlike other software companies, has the backbone and endurance to go into legal battle and keep the software segment patent-free. They did it during their long dispute with Viacom over YouTube and they’ll do it again and again.

The only way to win is to fight.

0.
Terms and Conditions (and Privacy Policies) are a bitch. I know, because I write them for a living. Yes, it’s me who made you agree to provide that website with an “irrevocable, unlimited, commercial right to access your personal information stored in the service” just so they could fight the spam they tackle on a day-by-day basis. I’m also the guy that these websites call when some random schmuck send them a cease-and-desist letter claiming they hold the copyright on the word “party” or something like that.

1.
Lawyers face a terrible problem, most users don’t read the terms and conditions; this causes them to be unenforceable in some cases (DeFontes v. Dell, Inc., No. 2004-137, 2009, more here) and lawyers tend to create presumptions of acceptance in different terms, which are always uncertain because they are never tested in court. Some lawyers tend to add the “I Agree” button only at the end of the document, some require email confirmation and some just add an “I Agree” checkbox.

2.
In comes CommonTerms. CommonTerms tries to simplify the reading of hard to read legal documents by adding nice icons about how the service providers use your data, if they are allowed to revise the terms for any reason or other information. In order to do so, Common Terms analyzes existing agreements and attempts to draft a database of practices. While their idea is nice, it’s yet to be perfect for the end-user because he needs to know such icons exist and actually read the terms for it.

3.
In comes my solution; however it requires some cooperation from lawyers. Lawyers could use XML tags or RDF, where lawyers could tag their Terms and Conditions with specific tags, such as “Shares your user generated content with 3rd parties” or “allows other users to create derivative works of content you upload”. In terms of Privacy Policies, it may be even easier, as a privacy policy is a set of specific questions, where the Icons just may show “uses 3rd party cookies” or “profiles you and sends information to advertisers”. Now, once the specific list of terms are defined, we can actually create a tag generator so the tech guys could mark the site; then, like websites put the Truste seal, they could mark their website in terms of user-friendliness.

4.
After we get the marking down, we still have some problems, but all are solvable: Self-Enforcement and Information, as well as comparing sites in terms of their Terms and Conditions. The other factor may be creating common grounds for tagging and creating child-friendly filters or other uses that users may do to understand what happens when they post their content in websites: is it sold, reused, mixed, shares or just removed after 36 hours.

5.
The thing is, that as a lawyer, I cannot code and I cannot enforce these things on people: not on other lawyers and not on my clients (or other lawyers’ clients). So, in order to make this happen, a demand has to come from the public, and that’s you.

You also appreciate reading about the EULA Generator.

In about two weeks time, I’ll attend the Wikimania2011 Conference and discuss Cultural Fair Use, Political Narrative and Copyright; while this might sound as one big mashup, because there is no apparent connection between copyright and political narrative. The story of fair use, however, points us to why copyright, more than any other thing, has to do with Politics. The text of this lecture is somewhat derived from my research with Dr. Nimrod Kozlovski for Consumers International about Fair Use in Israel.

But first, a short story. One of my favorite TV shows is South Park. I’ve been watching them from 1997, and have been a fan of the authors and their opinions; when Trey Parker and Matt Stone described their approach towards copyright in their interview for Reason Magazine back in 2006 i was quite happy to find out their approach for copyright was that of a true artist, a wish to reach a wider audience. In a same manner, back in 2008 when they launched South Park Studios, a website to allow watching all their episodes through video streaming as well as remixing and sharing their content, I understood how much they were artists and how they were not just in it for the money.

In 2008, South Park paid tribute to the internet nation with an episode criticizing the Writer’s Guild of America’s Strike while paying tribute to some of the latest internet meme sensations such as the sneezing panda and the Star Wars Kid. One of the subjects of criticism was Samwell, whose video “What What (in the butt)” depicted an African American male pondering whether the viewers of the video wish to “do it in the butt” with him. The video was displayed in the popular YouTube site free of charge and received millions of views.

In the “Canada on Strike” episode, the four prepubescent characters in South Park wish to earn a quick buch from the internet and decide to film a viral video. The position Butters, one of the characters, in the same way as Samwell is in the video and make the unconceivable, take the already grotesque video and make it even more grotesque. This is basically why I love South Park so much: the interaction between extreme free speech and the ability to mock the already mocked to a grain gives them the ability to go on for so many shows. This is the video that Butters produced:

Samwell decided that South Park’s use of his “Work” constituted as copyright infringement and decided to sue Viacom for copyright infringement. Viacom decided to be the better person and instead of settling the case out of court (which would help it, as a copyright owner to fight others who make similar uses of its content) decided to try and use the affirmative Fair Use defense. This week, a Wisconsin federal judge dismissed the case, arguing that South Park’s use of the work was fair (read the full opinion of 10-CV-1013 Brownmark Films LLC, v. Comedy Partners). The court weighed in favor of what I try to call “Cultural Fair Use” which became somewhat popular recently, but is not actually in the general Fair Use exemptions.

For all you non-lawyers, fair use is a defense (codified in 17 USC 107 for those who use copyrighted works for causes such as “criticism, comment, news reporting, teaching, scholarship, or research”. However, South Park’s use, in spite of the wish to be considered criticism, is not really criticism, but mockery or homage. South Park used Samwell’s work in order to criticize the viral videos altogether, not the work itself. In a similar case, where a famous Israeli Comic Book (or should I actually say “Graphic Novel”) cartoonist depicted Donald Duck in order to mock the Isreali Society, the Israeli Supreme Court ruled that his use was not fair as the criticism was not on the work itself (RCA 2687/92 Geva v. Disney). Only recently, the lower courts acknowledged that other, cultural aspects of fair use in order to stretch society’s public domain and ability add some works of authorship to the public domain without the formal requirements of copyright terms, solely because such works have become works of the public due to popularity and demand.

The recent cultural fair use is based on folklore more than anything else. The basic elements are that once a work has exhausted its commercial value and became a part of popular culture, it may allow others to create additional social value by reusing the work. Such uses may be mashups, remixes or other uses which are not highly criticizing or transformative, but are without any impact on the actual market value.

[Here comes that part where if you read this prior to hearing my lecture you thanked me, because the crowd will be rickrolled]

A good example is Rickrolling, the phenomenon of baiting someone into clicking a link on the internet which leads to Rick Astley‘s “Never Gonna Give You Up” video, which is not as grotesque as Samwell’s “What What”, but is no less funny. People have used this song and attempted to add it into popular culture and other works as an homage to the internet nation; either by playing it instead of the end credits to Bill O’Rielly‘s show, paying tribute in an episode of the popular TV show Family Guy, using Barack Obama as the singer by mashing up his speeches or even a Stephen Hawking tribute to the song.

But putting Rick Astley‘s career aside, let’s discuss Government Works for a bit. The US, as well as other states, has a “Government Works” clause that determines that any work of authorship made by the state itself is not subject to copyright. Unlike the US, Israel does not have such clause. Therefore, a material part of Israel’s history is subject to copyright; meaning that the national photo archives and other government works such as reports of the Central Bureau of Statistics are subject to copyright. In such case, when Israeli nationals (and other nationals, actually) wish to use government works, they must either license them or find other sources.

This creates a burden, first of all because the Israeli government does not benefit from selling licenses. It is not one of its positions as a government nor is it a material source of profit. The government has set up its Press Office to allow dissemination of information freely from the government outwards and copyright restrictions seems to contradict Israel’s wish to disseminate its message.

During the 2010 term, Parliament Member Meir Sheetrit submitted a bill introduced by Wikipedia Israel, proposing that non-commercial use of government pictures shall be free of charge, as long as the use is with credit, and does not manipulate or alter the photos in any way. In an interview, Sheetrit stated that one of the reasons for the governmental opposition to the bill was the fear from use of the photos by organisations
which are hostile to Israel or wish to promote the opposing narrative.

The bill was prepared following a study by Creative Commons Israel and Wikimedia, which dealt with Crown Copyrights. The understanding and discussions were whether to apply fair use principles to these uses or to exempt them individually. The tension between personal uses and political uses was balanced by the Israeli ministry of justice, which drafted the bill for MK Sheetrit, and exempted non-commercial use only.

Interestingly enough, the definition of what is commercial and what is not has yet to be discussed. It is interesting to note that both the language of the bill and the language opposing the bill use copyright as censorship or impediments on free speech. The rationale behind the bill, at least as stated by MK Sheetrit, was to allow the dissemination of Israeli Hasbara (propaganda) and use of the Israeli imagery for free by bloggers, Wikipedia and other organisations who wish to use them in order to enrich their works. However, at least as stated by MK Sheetrit, the governmental opposition was based on the fear of use by hostile organisations. Both parties held an opinion that government works are a part of the discourse and that copyright may be used to prohibit others’ speech or to allow them to undertake one’s narrative. These rationales underplay the economical aspects of copyright, and deal with fair use in a different manner, which is the ability to silence political speech.

If, indeed, the only rationale for copyright in Israeli government works is political: to maintain the political narrative, then one material aspect, which is the commercial value of the work, has to be let aside when discussing government works. Let’s, for this cause, inspect the incentives behind copyright and see whether they apply for government works (based on the incentives described by Julie E, Cohen in Copyright as Property in the Post-Industrial Economy: A Research Agenda); the purpose of Copyright was to encourage new and original authorship, however, in Government Works, there is little originality, most Government Works are either documentary (formal photographs or official journals) or are the result of a research; and even if commercial uses were made using these works, then the Government shall continue to create.

Therefore, the incentives for Government Works do not exist in copyright. Now, what’s left is the apparatus of control, and this is actually what’s important in copyright nowadays, more than the economical incentives in Copyright, it seems that Governments, like artists, wish to keep the control of what others shall do with their works, therefore applying their political narrative through copyright.

Israel’s offer for a “Israel Friendly License” shows that we do have a problem: Israel wishes to enforce its political narrative through copyright, by granting a license to use its works solely for those who adhere to its standards. Because the Government does not work for-profit, we can learn, more than from any commercial entity, that fair use is required for criticism, because it is made exactly where people do not want others to use their intellectual property.

0.

About a month ago I blogged about the requirement to protect cloud storage users from the cloud service providers. I offered a mechanism to protect a person’s files from the cloud and gave Dropbox as an example. The reason I provided Dropbox as the example was both the simplicity of things, and that due to Dropbox’s architecture, I knew that the last month’s events are bound to happen. First, we found out that Dropbox did not protect end-users from the cloud and allowed law enforcement to access them, as a part of their privacy policy. Second, Dropbox misbehaved when terminating an open source file sharing project which based itself on a file sharing flaw in Dropbox, which was a feature, not a bug.

1.

In order to understand how the feature worked, you have to understand how Dropbox dealt with files, as a part of their service: Dropbox recognized files and their digital signatures, and when it saw that it already had a copy of the file, it used the existing copy instead of downloading it from the end-user’s computer. For example, if I wanted to put my (legally purchased) Justin Bieber MP3s in my Dropbox, then when connecting to the Internet, Dropbox would have recognized that it already has those files from another person (who, of course, legally purchased them) and just copied them to my cloud folder. This was not a bug, but a feature: it saved storage, bandwidth and computing power and it allowed users to thrive.

2.

However, it also allowed another thing: some people decided to use Dropbox to share files: all they needed to know in order to do so was to share the hash value of each file, where Dropbox did the rest: it took the files from the cloud and copied them to their computers. Of course, they could always create shared folders of pirate downloads and share them with the public, but the users decided to create a peer-to-peer system for cloud hosting. However, Dropbox did not like the idea at all and issued DMCA takedowns of the source code for the hack, called Dropship, calling the hosting companies that host the files (in this case, Dropbox itself) not to host it, as well as amended their services just to avoid such use.

3.

Dropship did not do anything illegal, it just did to Dropbox what AIMSter did to chat services a decade ago, When they found a security hole, which allowed you to copy files simply by knowing their Hash Value, Dropship showed the public the flaw with Dropbox, the fact that any person can copy any file from any other Dropbox without knowing anything but the Hash Value; this was not a feature anymore, it became a bug; where the only way to terminate the bug is actually to rewrite Dropbox with privacy by design.

4.

Dropbox came out as the lesser party. After enjoying a wave of great publicity and reaching 25,000,000 users without any marketing or advertisements, it seems that they jumped a bit too high. Freedom and flexibility were the main reasons to use Dropbox, as well as the lack of actual competition. However, once you know that your information is both insecure and constantly monitored, you feel less than safe in the cloud.

5.

Maybe it’s time to reconsider the whole cloud hosting model. Dropbox was great while it lasted, but it should go in the way of the dodo and find a more cooperative, interactive, friendly cloud storage service.

A year ago, I conducted alongside Dr. Nimrod Kozlovski a comprehensive research about Fair Use in Israel, which was made for Consumers International. The 2010 Report about Fair Use in Israel was the first of its kind; we reviewed almost all the court decisions regarding fair use ever since the young state of Israel was established, conducted a survey between hundreds of content creators and interviewed dozens of people whose work involved copyright: musicians, artists, photographers, journalists and others. We wanted to find out how they felt with subjects such as remix artist Kutiman‘s Thru You and other issues relating to sampling, remixing and creating upon other’s works. One of the interviews I conducted was with Terry Poison‘s Bruno Grife. Terry Poison, for non-Israeli readers [wiki article] is a popular music band, with electro-pop influences and quite interestingly, displays the new Israeli music, as it is not targeted to Israelies, written in English, and performed worldwide.

I spoke with Bruno for about an hour and one of the subjects was, because of Terry Poison’s music genre, the question of remixing and fair use. Actually, not the “fair use” in the classical form of the Israeli Copyright Act that is solely for self learning, research, criticism, review, journalistic reporting, quotation or teaching and examining by an educational establishment, but the Cultural Fair Use which was created in C 7648-09-08 Smadar Katz v. Ben-Tzion Rothman and OCR 11646/08 Premier League v. John Doe. In both cases, the court addressed fair use as a cultural right, and ruled that uses may be fair even if they are not in the extensive list of purposes.

Bruno explained that “when fans upload a portion of our show to YouTube it disturbs me, but when our fans perform homages such as LipDubs, it doesn’t … if a fan takes something that is ours and then remixes it, we’d love to integrate it. If it’s good, it’s good. But when something turns commercial, the line is drawn”. afterwards, he explained about where hew uses others’ materials: “we perform live mash-ups, I can take the chorus of someone else and take-off my music, because is is a part of respect for the influence he gave me, and live music is the place to let others discover music we love”.

But putting all of of this aside, a recent arbitration between two popular Israeli musicians puts this issue in a whole new perspective. [Hebrew link to the news story]. In 2002, Israeli band Hadag Nachash released an album called Local Substance (actually, more like “Local Material”, but the reference for drugs all over the album is a part of the decision). One of their songs, “Ma Naase” (what will we do), was influenced or quite similar to another Israeli artist classic hit, Ariel Zilber “Veeich Shelo” (no matter what, literally). Zilber sought arbitration, claiming Hadag Nachash violated his intellectual property rights; and Justice Theodore Or, residing as the arbitrator, ruled damages for Zilber and issued an injunction prohibiting Hadag Nachash from performing this song in their shows, mandating them to redact their albums from record stores and removing this song from the ACUM (the Israeli equivalent to ASCAP) repertoire.

Hadag Nachash’s Song

Zilber’s Song:

However, the question of whether whether Hadag Nachash copied the song isn’t relevant if you discuss cultural fair use. This right is a person’s right to perform homage, to give credit, to take the music he grew on without harming the original music’s commercial value. Hadag Nachash’s homage to Ariel Zilber does not harm Zilber’s ability to sell even one album. In the same way that sampled music never harmed the value or commercial potential of music. If we take interesting examples of sampling showing increased sales, we can see that Eminem’s song, Stan was what brought the success of the sampled Thank You, performed by Dido.

this shows how the tort in copyright, where copyright should prevent damages to the plaintiff, crashed. Zilber did not and won’t lose money here. In old songs, older than 5-6 years, the commercial value of the work was already maximized. And as usual, the fact that someone creates work based on your work and makes money off of it doesn’t mean that you have to be compensated (see, for example, C 1074/05 Maariv v. All You Need).

Therefore, the unconstitutional prohibition of playing the song makes it a part of the Illegal Art Corpus, in a same way that DJ Danger Mouse‘s The Grey Album was: the only way to hear the song is to download it illegal in the file sharing networks. Now, the question arising about what will Zilber do against all the bloggers who put up the song in their blogs to explain about the case.

And finally, I want to show a small Homage that Israeli artist Edan Alterman gave to many artists. Alterman performed a song in one of his shows which “infringes” the rights of a dozen artists; however, the cultural value in the performance exceeds any infringement. This is a distinct example on how Fair Use has to include homage as an exemption: music this good can’t be illegal.

Justice Or’s arbitration ruling does not apply to myself. I am not a party for the subject matter and unlike courts, which can issue injunctions against the general public, the arbitration ruling applies only to the parties. Moreover, one has to remember that one of the articles in The Israeli Arbitration Act is that the court may invalidate an arbitration is the decision is unconscionable. The result of this arbitration, if it like the press is reporting it (as it does not appear anywhere, and we can’t find the ruling) harms my right as a public for culture. As such, it has to be invalidated. If Hadag Nachash wants, the court is open to hear them.

As a footnote, this version of the songs so how many homages could be put in one song, and nothing goes wrong:

[Originally in Hebrew]

0.Why are everyone afraid of open source?
One of the most amazing things is that in a material portion of the Share Purchase Agreements (or investment agreements) I’ve reviewed in my life, the invested company was prohibited from using Open Sourced software as a material condition for the investment. The “No-Open-Source” clause was added in companies which a major part of their business model was open source or cloud services, so that in fact there were clauses that excluded the specific Open-Source applications used from the warranty and prohibited the company to utilise any other Open Source application. This prohibition, in my humble opinion, represents and archaic misconception that investment in start-ups is in liquidatable property such as patents or copyrights, and not in the persons behind the company.

1. Why is the cellular market afraid of open source?
Both Apple and Microsoft are afraid of Open-Source. Apple recently banned the open sourced VLC player to attend its cellular festivities as it was released under the popular GPL (and a funny story with XPilot) and so does the Windows Phone 7 developer agreement which states that open sourced software may not be distributed by the WP7 marketplace (which caused several developers to change their licensing models). But Microsoft and Apple’s prohibition comes from ignorance in regarding to the licenses more than anything.

2. About Microsoft’s misconception?
Microsoft prohibits inclusion of what they refer to as “Excluded Licenses”, which are “any license requiring, as a condition of use, modification and/or distribution of the software subject to the license, that the software or other software combined and/or distributed with it be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge” (clause 1.l) but, open source licenses apply only when there is distribution of the software, and not when there’s use, therefore, many cloud services use open sourced software (as they don’t distribute the code, only use it). A clause prohibiting excluded licenses in any software reigns over applications developed for WM6.x and WP7. In some portions of the application are server side or server dependant, some interesting questions raised.

3. Open source prohibition and cloud computing?
This next case is purely theoretical: Facebook, which bases most of its activity on open source infrastructure, develops a Windows Phone 7 application which interacts with the Facebook servers which are under open source licenses. While these open source components are used, they are definitely not distributed and therefore the draconian clauses of Microsoft’s license are terrible. A better example would be more feasible; imagine that some person grabs Wikipedia and creates a mobile application; Wikipedia’s content is released under a Creative Commons license which allows free distribution as long as any amendment or contribution is distributed under the same license. Now, Microsoft may come to the developer in questions and claim that clause 5.e to the developer agreement was in breach and remove Wikipedia from its marketplace.

4. Why Microsoft was afraid of Open Source??
Microsoft’s scare from open source licenses is clear. Microsoft is terrified from the misconception of the GPL’s viral nature which was perceived as turning all proprietary code which interacts with open-source code turns open-source and is afraid of defending itself against he who comes and asks it to open it’s code. However, this fear is disproportional: like the VCs who heard, somewhere, that there’s a risk in open source and decided to ban it completely, Microsoft detaches itself from a world that can do it only good: Microsoft could have started its marketplace with thousands of free applications from day one and giving it a competitive edge over Apple. Microsoft, however, is afraid of not being able to limit its users, and that’s what it does.

5. So now?
The solution is quite obvious, if Microsoft restricts open source from its playground, it will restrict popular browsers, media players and other software from playing the game and it will fail. There’s no comfort in locking the garden, just another step towards the separation between the proprietary world and the open source one.

[Originally in Hebrew]

Bonus for my English readers, my Open Source Presentation:

Software, as a matter of principle, is usually licensed but not sold; this is what the recent ruling in 42:07-cv-01189-RAJ Vernor v. Autodesk was all about. Therefore, usually, when a person sells (or licenses) software, the end user signs or accepts an End User License Agreement (EULA) which includes the array of rights and duties attached to the software itself.

Copyright laws limit the rights to create copies or distribute software without the original author’s permission, and the EULA is the permission to hold the end-user’s copy of the software. Without the EULA, any action performed may infringe on the author’s copyright. However, both clause 12 to the Israeli Copyright Act and clause 106 to the US Copyright Act do not limit the use of software, solely its copying and distribution. The court ruled in Vernor that the author may limit consumer right and therefore software developers may limit the way that their end-users will use software or interact with other components.

However, most software developers prefer to use EULAs in order to allow the use of the software and not sell copies, so that they could redefine the rights attached to it. For example, clause 24 to the Israeli copyright act allows modifying copies of software for security purposes and court also acknowledged that consumer rights may overcome eulas (MAI Systems Corp. v. Peak Computer, Inc., 991 F. 2d 511 – Court of Appeals, 9th Circuit).

While the courts were not supportive in acknowledging the consent to these agreements in all cases (Specht v. Netscape Communications Corp., 150 F. Supp. 2d 585 (S.D.N.Y.2001)), it is quite obvious that they govern the ability to distribute, but not use, the software (CV 07-3106 SJO UMG v. Augusto). Meaning that the need of a software license is meant to define what exactly is the relationship between the developer and the end-user and rearrange the rights attached to the copyright laws.

Out of this need, to provide end uses with a clear and simple license, lawyers earn a good living. Every software developer has a simple choice: should he pay a few thousand dollars to a lawyer who will draft a document in non-readable legalese, or release the software without any license and hope for the best. The licenses, usually, contain liability limiting clauses (and see, for example, clauses 15 to 18 to the Windows XP EULA which limit Microsoft’s liability to any damage and for any cause).

EULA should come in any place where code is conveyed, but not for web-based services, where a copy of the work is not distributed. Therefore, the difference between EULAs and Terms of Service, which are an agreement regarding the use of the service, should be acknowledged.

Now, after understanding this, we can relate to the subject matter. This week, binpress launched its beta service. Binpress is a commerce platform for web applications and allows web developers, and any other person who wrote a script, plug-in, code or service to upload the code and sell it to others. Amongst other this, it allows the developers to create their own software licenses and save the costs in drafting a license by using the generator, picking what rights apply to the end-user and what don’t (decent disclosure: I wrote the modular license agreement). For example, the developer could pick whether the person who bought the software may distribute it to other people (a developer license), the term of the license, the ability to chose how many cores and websites may use the software (for example). Eran Galperin wrote a comprehensive post about binpress’ licensing mechanism you should read.

In brief, the system is quite similar to the Creative Commons license generator, by allowing the user to pick what license he wants for his software and what rights are attached to it. The difference is that binpress’ license is commercial and for web applications.

Then why should I, as a lawyer, cooperate with a system that may take away money I could charge my clients for EULAs and allow my future potential clients to write licenses by themselves? Theoretically, any person which develops applications could choose binpress as his marketplace and save the cost (and see also my Hebrew post on Freemium by lawyers); well, the answer is double: first, is that the system is dedicated to web applications which are sold by binpress. Meaning that whoever develops large-scale software, commercial distributions or software containing more than a mere conveying of code (like validation keys) would still have to find a lawyer to draft an agreement. The second is simpler: I believe that this system does not prevent lawyers from earning money, it just makes their living more efficient.

Most licenses you read are generic and written in a way that no human could grasp or read, they were written by chewing hundreds of requests and demands time after time and served to developers without any understanding. In contrast, large systems with legal questions of privacy, open source and real legal problems would still need legal consultation and will avoid using this systems.

Therefore, the generator does not harm my earnings, it does not replace my legal work, it just allows the end-user to pick an educated pick between paying a few thousand dollars when he doesn’t need and tailoring the agreement for him. When it’s a developer who sells a few copies every day for a dollar or two, it’s not right to pay that much for legal counsel.

[Originally in Hebrew]

Intellectual Property laws have more than a few political implications; many times issues of political speech interfere with copyright. For example, Shepard Fairey, an artist who authored the famous “Hope” poster for Barack Obama, was sought by the Associated Press for copyright infringement as the image of Obama was based on a copyrighted photo (and in Israel, a the Supreme Court will soon hear a similar case, RCA 7774/09 Weinberg v. Weisshoff, where the Defendant is sought for copying a photo the Plaintiff took into a coin made in memory of the assassinated prime minister, Yitzhak Rabin). In another case, the US Senate candidate, Sharon Angle is sought by the proprietors of rights to newspaper articles for presenting copies of the articles which she appeared in, on her personal website and there are more cases; mostly, these cases are borderline in relation to copyright protection, but they are classical monetary suits, not political.

In contrast, the story which was spread on the press during the last few days was not less surprising, but at least ended in an interesting manner. Two days ago, the New York Times reported that the Russian government and police use copyright laws in order to supress political dissidents. The system worked as follows: The Russian police used its granted authority to enforce copyright laws in a violent manner (and it did so in the past, where it sent a school principal to prison for using unauthorized copies of Microsoft Windows) and claimed that copies of Microsoft Windows installed on the dissident organization’s computers are unlicensed (pirated – jk); In Russia, where the unlicensed software rates are only second to the Israeli conviction rates by a person’s confession, it is more than likely that a political organization will use unauthorized software>.

First, it was reported that Microsoft encouraged the enforcement as a part of its zero-tolerance to copyright infringement policy; however, after suffering from damage to its public image, apparently, it decidedto reform its licensing policy, so that a general license will be granted to non-profits in order to protect them from political pursuit. In a post published by Brad Smith, Microsoft Senior VP and Counsel, he explained that Microsoft could not be a part of this and must take an ethical stand.

The claim may be true, but it could also reflect a wise business approach. Until today, Microsoft profited from unlicensed use in 3rd world countries. Microsoft also knows that if raids like this will continue, dissidents will stop using Windows and move to open source software, and primarily Linux, in one distribution or another. Moving to Linux is unilateral, it changes a person’s point of view: from organization that were dependent of a specific software to a part of a larger community; Most organization who hear about open source are enchanted by it, they have an option to donate, contribute, change, share information and not just run the program.

Moreover, Privacy Enhancing Technologies are more available on open source operating systems. From the EXT4 file system which comes by default in Ubuntu and encrypts your hard drives (similar to Microsoft’s BitLocker, but it just works), through TOR servers who reduce censorship: Open Source is the new heaven of dissidents.

Therefore, Microsoft’s blanket license comes to heal a small shallow scratch, not the problem: Copyrights are ill, and Microsoft took the right way to take care of it: acknowledging that non-profit use is fair and allowed. However, until further technologies, innovative ones, will protect dissidents, the raids will continue. Today it’s the operating system, tomorrow, the word processor, afterwards? image editing programs.