Friday, June 30, 2006

Design Differences

The word design has many connotations in the English language. It can be a noun, or a verb, but more importantly, it can refer to both artistic works, technical works, and the creation of either.

The differences in the title allude to the differences in protections afforded to artistic works, and technical works. An artistic work falls under copyright, whilst a technical work goes on to become a patent – or more often doesn't. It is this in particular that is the point.

If I draw a picture, it's automatically copyrighted. This writing, since its held on a US server, is considered to have been published in the US, and is automatically copyrighted. What's more its copyright term is until I die, plus 70 years. So, even if I get hit by a truck tomorrow, it's copyrighted until 2076. It has taken no great effort to write this. I had a basic idea, my associate does some assistance with the research, and I write it. He edits it for clarity, and then its published. No great creative effort is needed. I haven't slaved over a tablet for three or five weeks, writing this. Get a patentable device completed this quick, from first concept to public release, and you're some sort of super-designer.

Both I, and my associate are engineers. If I design a device, its not patented automatically. I have to register it. What's more a patent only lasts for 20 years, and is territorial. In other words, if I want my patent in the US, and the UK, I'd have to apply for a patent in both countries

Why are there these differences? A good technical invention is hard to do (although some might claim the same of good artistic works) and involves a lot of work. Of course, the biggest difference between the two is the restrictions on what is patentable. The UK patent office lists them as
1. Has to be new – never been made public before the patent is filed for
2. Be an inventive step – not an obvious adaption of something existing which anyone can see
3. Be capable of existence – if its some sort of perpetual motion machine, its likely to be deined.

There are also more exclusions, but you can read them on the site. All in all, what qualifies for a patent is a narrow field a small percentage of technical output. In some 10 years as an engineer, I've assisted in developing one patent, I've assisted in hundreds, of copyrighted works.

Both copyright and patent were designed for the same thing to reward work in the artistic and scientific/technological/mechanical fields, by allowing the materials creators to profit from their work. The difference is, Patents are for 20 years, copyright can be 50 in the UK, up to 95 or even (considering I personally aim to live another 60 years) 130 years in the US. Then there are all the protections for copyright now. Patents have none of this. If one group infringes another groups intellectual property, in the form of a patent, one group files a civil lawsuit against the other. If it were a copyright infringement, the litigant can similarly file a civil suit, or get the FBI (if in the US) to arrest and seize material. Copyrights have methods now to, it is claimed, protect them from being infringed. Do patents carry these methods? Your computer carries patents in its hardware. Can you take a look at that hardware design – sure you can. Can you then take that, and use it to build your own patent? Well, if it involves an innovative step, and is separately developed, its fine.

DRM, is a new thing in copyright, that has a lot of fans with the copyright crowd. Lets apply it to a patent, lets say a nice new plasma TV. Imagine if you were restricted in the number of people that could watch it at a time, or told that over its lifetime, or until the patent runs out, you can only have the TV in a total of 3 rooms. And of course, you're not allowed to sell or otherwise give away your TV now you've 'purchased' it. It sounds absurd, but these are commonplace restrictions for music. Of course, trying to get around any of these would be a breach of the 'license' you bought the TV under, would be against the law.

The differences do not stop there, however, enforcement is probably the biggest difference between the two. In internal conflicts between the two, in the US, for instance, copyright infringement would often take the form of lawyers initially, or if its major, federal law enforcement; meanwhile patent infringement is just a civil lawsuit regardless – palm and Xerox in their $22.5M fight for instance. In international matters, we have seen in recent statements the US position on it – forcing national economic sanctions against nations for a site, or having quiet words with another nation's government. When it comes to patents, though, There is no government interaction, No wild and lurid statements, or accusations, press releases filled with wild speculation and rhetoric. A New Zealander is challenging the validity of the 1-click patent holds (or at least that's his aim, its not certain it'll even be looked into). Meanwhile, Intergraph, a US company that specialises in surveillance and security systems for military and civilian agencies, is suing NEC, Toshiba, and Fujitsu. Odds are that there will be no government involvement there either, certainly no intimidation or governmental suggestions of arrests.

Why this difference? Why are people so interested in copyright, and the patent left as the poor relation? Patentable material is harder to create than copyrighted material. Patents advance our culture and civilisation, copyrights merely minutely enhance culture. When it comes to world change, was it the jet engine, or “Sgt. Peppers Lonely Hearts Club Band that changed the way of life? Microchips or music? The VCR, or the content of the videos played on them?

The reason is clear, copyrighted material is easy to make. The idea then, is to maximise the revenues derived from the works, before they're passed into the public domain. Of course, the public domain is Bad for content producers monetarily – as Ian Anderson of Jethro Tull put it , songs in the public domain “becomes instantly devalued”. For the good of all, however, their value is greatly magnified.

As is stated extensively, patents and copyrights are for creators to be able to profit from their creativity, be it artistic or technological, and thus increase creativity. If patents were to last as long as copyrights, cars would still be a new thing, and they'd cost a million or so, air travel would be as common as space travel is now. Clearly not a good thing. If copyright lasted as long as patents, would there be any difference? Well, there would be greater creative artistic works. When you can receive payment from your works for 50-95 years, where is the impetus to create? Additionally there would be more material to base new works on. Samples, lyrics, melodies, film clips musical scores, cheaply.

It appears, as with many other things, the money aspect has wiped out the reasoning in the first place – creative stimulation. How anyone can see that as anything but bad is a mystery, since it only requires the application of a little common sense.

Ben jones

Thursday, June 29, 2006

UK copyright lobby discredits MPAA study pt 2

First, if you haven't read part 1, I would advise you to.

There have been a number of enquiries come in, as to what the conversation has said, and more than once, there has been the allegation that the story is not true. Its been a busy week, but here at last, the emails.

From: B Jones
Sent: 20 May 2006 00:15
Subject: request for clarification of data on

Dear sir/madam

I am sending this email to ask for a clarification of some of the data on your site, specifically its with reference to the second paragraph on the page

My problem is that the figures given vary (between 7-13%, depending on exchange rate) with the figures published by the MPAA in their Lek study ( - page 4). the ITFIPA figures for lost VAT only matches the MPAA figure if the US/UK exchange rate is $1.62=£1 - a rate that has certainly not been seen in the past 12 months.

Thus the question is, how can two organisations with much the same membership, express figures purporting the same thing, yet have such a radical difference in values. how were such values calculated, and how were they checked to be sure they were either accurate or representative.


Ben jones
cc: MPAA

On Tue, 23 May 2006 12:58:00 +0100 , "Stefanie Riese-McCartney" wrote:
In reply to your query on the MPA/LEK study findings, please see the attached. 

This information is so old now (research done in 2004) that I’m afraid it’s lost its currency, which is why we haven’t used it.  The apparent anomalies between our locally produced consumer research and the MPA study are due to the fact that the methodologies employed were completely different. The figure quoted in the MPA research is not a consumer spending loss figure and it is not a loss figure to the industry worldwide -  it is only the revenue loss suffered by the MPA member companies.  So it is a different calculation from the industry loss figures we are talking about locally.

I hope this clarifies things.

Kind regards

Stefanie Riese-McCartney

(On the behalf of the Industry Trust for IP Awareness)

From: B Jones
Sent: 24 May 2006 00:02
To: Stefanie Riese-McCartney
Subject: RE: request for clarification o data on

Dear Ms Riese McCartney
I'm afraid I have to send you another email. Your response did not answer my points, perhaps down to a miscommunication. In my question (kept below) I asked about 'lost VAT' of £108.5Million, on a page copyrighted at 2006. Therefore, I can only assume its a recent figure, after all, if its an old figure with no currency, why is it still on the site, let alone updated. Indeed the only timeframe reference on the page . Additionally, the figure I had put it in comparison to was not "a loss figure to the industry worldwide" as you so succinctly put it, but then, neither is it "the revenue loss suffered by the MPA member companies". in fact, the figure to which I referred you (again, on the lower half of page 4) there is a table showing "Tax Loss Estimates (USD$M)" and listing the UK at '176', or roughly £99.1million. Your VAT estimate is £9.4million over.

The other thing that puzzles me is your statement that the methodologies employed were completely different, which explains the disparities in figures. So, which method is the more accurate and correct? Incidentally, what was the method used to determine your figure. Thank you for your time

Ben jones

On Thu, 1 Jun 2006 09:28:02 +0100 , "Stefanie Riese-McCartney"   wrote:
Dear Ben

Sorry for the delayed response but I have been out of the office until today.

To further clarify our answer to your enquiry regarding the amount of 'lost VAT', the figure of £108.5 million was taken from IPSOS research commissioned by the British Video Association, carried out in November 2005 - the most recent research available. It is based on 17.5% of the cannibalised DVD sales the study identified due to all copyright theft in over 12 months. Differences between this figure and the MPA's can be explained by the time elapsed between studies and the different methodology used. The IPSOS research was done using face-to-face interviews with 2,000 members of the public in GB of 15 years+. 

In carrying out research to determine losses caused by crime, no study will be 100% accurate but we have to use the best information available. The figure is used on the piracy is a crime website to make the point that piracy is making a huge impact on many levels, not just losses to copyright owners.  Although it's certainly important to be accurate, we have a common aim with the MPA and other organisations to raise awareness of the harm done by piracy.  We are using a transparent and up-to-date model to generate evidence to prove our point.

MPA members comprise the Hollywood majors.  The members of the Industry Trust for IP Awareness include UK distributors such as representatives of British TV companies, specialists in non-film entertainment and also the key video manufacturers and retailers in this country.

If you have any other information that is pertinent, statistically viable and up to date, please do let us know as we welcome any information that contributes to our insight into this vexing issue.

I hope this helps but please let me know if there's anything else you would like clarified.

Best regards


Stefanie Riese-McCartney
(On the behalf of the Industry Trust for IP Awareness)

Additionally, I have now re-sent requests to the MPAA and the BVA (whose study is referred to) to get their comments on it. We shall see if they reply.

Ben jones

Wednesday, June 28, 2006

Journalism, or press release 2 - the reply

10 days ago, I wrote a letter to the Washington Post, in response to an article they'd written. (you can read it here) I said I didn't expect it to do much good, nor did I expect a reply. I did, however, get one.

As it states right at the top here, N2N is all about BOTH sides of the argument, so I feel duty-bound to post the reply from Frank Ahrens

Greetings, all:

Allow me to apologize for the mass reply, but this story generated a lot of
discussion, to put it mildly, and I wanted to get back to everyone who
wrote, even those who accused me of not knowing my asshole from my elbow
(which, by the way, is one of my favorite phrases).

The story was meant to shine a light on the U.S. government's increasing
involvement with U.S. entertainment industries and their joint efforts to
influence foreign governments to strengthen copyright laws--to the
satisfaction of U.S. companies--and crack down on what the U.S. government
and industries see as piracy.

It was not an endorsement or condemnation of the practice. It was not meant
to debate copyright law and whether rightsholders have their rights for too
long. That's a fine debate that reasonable people of both sides can
disagree on and perhaps a story for another day.

Early in the story, I incorrectly referred to as a
file-sharing sight. That was my oversight on final edit--I of course
realize it operates like iTunes--and I'm sorry I did not catch it. I
realize that factual errors can undermine a thesis but I hope you will not
devalue the story--which is about the activities of the U.S. government and
entertainment industry--because of this mistake.

As for The Pirate Bay, perhaps the Swedish authorities conducted a
ham-fisted raid and perhaps the dissemination vs. receiving of copyrighted
material debate is ongoing in Sweden. But in characterizing TPB, I relied
on the opinion of the Swedish minister of trade and economic affairs, who
called it illegal, and the opinion of the U.S. Supreme Court, which ruled
last year that the administrators of file-sharing networks may be held
responsible for ciminal activities of their users, which is clearly guiding
the Swedish authorities. As for the BitTorrent argument, saying that the
network does not carry copyrighted works but seeds to where those
copyrighted works reside strikes me as saying it's not illegal if you chop
up the Mona Lisa into 100 pieces and then tell people where those pieces

Finally, the Swedish police believed TPB was illegal enough to raid. If the
Swedish law of last year is overturned, then that's newsworthy to me down
the road.

As for, not only does the RIAA and MPAA but the MPA
(international) and IFPI (international) believe that even though it may
claim it is licensed by Russian authorities, that license and its guiding
authority are shams in the Wild West bazaar of Russian commerce. I tend to

As for the potential losses suffered by the music and movie industries
overseas, those are of course estimates but not without some empirical
evidence. I pressed both bodies on their calculations, which they compute
but surveying the market to find out what percentage of counterfeit
material is being sold and estimating the corresponding market value, i.e.,
what the music and movie companies would have made from those sales if they
were not pirated goods. A report from the Russian government earlier this
year, for instance, estimated that 70 percent of all CDs and DVDs sold in
Russia are counterfeit.

This is a large, growing and complex problem. I am not infallible but make
every attempt to make my stories as factually correct as possible, to get,
as a former colleague once said, "The best available version of the truth."
The ongoing conversation with readers through the Web greatly helps my
reporting and makes it smarter, as there are tons of readers who know more
about most topics than I do.

So I hope to keep up the dialogue and please allow me to encourage everyone
to keep it civil. Just as you say a mistake in one of my stories can cause
you to devalue the entire story, if someone starts off an e-mail to me by
calling me a name, or several, then I'm likely going to skip the rest of
your e-mail, possibly missing valuable information.



Frank Ahrens
Media and entertainment industry reporter
The Washington Post
Phone: 202.334.5158
Fax: 202.496.3815

Friday, June 23, 2006

UK copyright lobby discredits MPAA study

The MPAA's recent LEK study into intellectual property theft has been dismissed by the UK's Industry Trust for Intellectual Property Awareness (ITfIPA) as inaccurate and out of date.

The dismissal came after discrepancies between that report, and figures the ITfIPA itself publicises were highlighted. Stefanie Riese-McCartney, spokesperson for the trust, said of the Lex study “This information is so old now (research done in 2004) that I’m afraid it’s lost its currency”. She then went on to say that a British Video Association study from November 2005 was more accurate as it was more recent. The study consisted of “face-to-face interviews with 2,000 members of the public in GB of 15 years+”. The MPAA were contacted, but did not respond.

Apparently, though, there is some confusion as to what the actual public line should be, since at two points Miss Riese-McCartney defended the differences in values (£108.5M for the BVA study, $175M/£98.5M for the MPAA study) as “due to the fact that the methodologies employed were completely different.” Although how they can use two different methods to measure the same thing, have a 10% difference, and still believe either to be accurate beggars belief. Unless, then, there has been a schism in the nature of reality, one, or possibly both, figures are wrong. Fortunately, the ITfIPA does also give a 3rd reason in the same set of statements.

“The figure is used on the piracy is a crime website to make the point that piracy is making a huge impact on many levels, not just losses to copyright owners.  Although it's certainly important to be accurate, we have a common aim with the MPA and other organisations to raise awareness of the harm done by piracy.” - in short, whilst accuracy is nice, getting our point across is nicer.

However, this is not the first time the ITfIPA has revealed information that has broken with the broadly established copyright agency gameplan. In December 2005, the ITfIPA let slip that they considered public domain material copyrighted.

Ben jones

**UPDATE** - 29/06/06
Now read part 2

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Sunday, June 18, 2006

Journalism, or press release - the $250Billion question

Some of you may have noticed this article in the June 15 edition of the Washington Post. I was, and still am, quite unhappy, so I sent the following letter to the editor.

Dear Editor,

As a journalist, you are supposed to have written what is happening,
the facts, and then depending on the type of piece, some possible
conjecture or inference. However, in the piece entitled "U.S. Joins
Industry in Piracy War" you give few facts, and alas, many more
outright lies.

Possibly the biggest error is the claim "The intellectual property
industry and law enforcement officials estimate U.S. companies lose as
much as $250 billion per year to Internet pirates" When making that
estimate, did that take in account that that is 5x more than the
worldwide box office figures, AND the worldwide record industry
revenues combined?

As for Russia's "unauthorized file-sharing site", would that be - a site which makes payments to its local rights
collection organisation, and who's only real crime is being
successful, and competing with the likes of iTunes (the fact that
prices are roughly 10x cheaper, and feature no rental-like DRM explain
why an unadvertised Russian site is competing with a site that spends
millions in advertising and has a locked feeder product in the shape of
the iPod. Imagine if roles were reversed, and China threatened to veto
the USA's entry to the WTO unless it shut down the Washington Post.
Its the same thing. One country trying to abrogate the democratic
process through external government interaction in order to further
the interests of business. Imagine the international condemnation of
the US if it pressured Cuba to burn all its tobacco or else, due to
lobbying from the tobacco industry. Its the exact same thing.

Of course, other errors in your piece include terming The pirate Bay"
as "illegal file-sharing Web site". The files it shares are torrent
files, which contain no copyrighted data. Of course, under a ruling
(made based on precedent) last May, such sites are legal in the US as
well, a fact that they are not keen to publicise. Indeed many of those
that participated in the raid are expected to lose their jobs, possibly
including the Justice minister.

I have seen both sides of the argument. In the early 90s I was one of
those self-same pirates (they're not new, indeed gamers in the UK
probably own more original copies of games now, than they did 15 years
ago) and in the late 90s, I was a copyright enforcer, including the
time of the Napster boom.

The problem is, of course, that to many people (including artists
themselves), its the media companies that are doing the stealing.
However, the companies are the ones with the money which pay
lobbyists. Its due to this lobbying that laws are being proposed which
give a heavier maximum sentence for copyright infringement (10 years)
than for stealing the CDs (7 years) - financial loss is easy to prove
with the second, but with the first not only is there no proven actual
loss of revenue, it may actually lead to a gain. These same laws would
make it illegal to use a sharpie on a CD, or to make the kind of
investigation that discovered the Sony rootkit.

The example of what is wrong with copyright law that I often quote is
the song "Happy Birthday". I am sure it is one you are familiar with.
This 25-note ditty was written in 1896 by one sister, the words (good
morning to you, good morning to you, good morning dear children, good
morning to you) were added by another, and the song eventually
copyrighted in 1936 by the third (and at that time, only surviving)
sister. That song is still under copyright now, and will be until 2020
in the US, and in 2002 earned more than $2,000,000 in royalties. Can
you tell me how, 90 years after the songwriter died, keeping it in
copyright is helping foster any sort of creativity?

Stringing assertions made in press releases from an extremist
pressure group (the MPAA is no different from Greenpeace or the NRA,
except Charlton Heston was never a Cabinet Secretary, and the MPAA
represents a handful of companies, not a segment of the population)
is bad journalism. stating as fact assertions from a group which has
not, to my knowledge, EVER published HOW they determined those facts.
There is a similar lobby group in the UK (called the Industry Trust
for IP Awareness) and their claims for sometimes the same things, can
differ by 15%. What makes this clear its a sham, is that the ITfIPA
comprises the same main members as the MPAA, along with some video
rental groups.

Lobby groups, like PR groups, have one aim. That aim is to promote
their agenda. Their agenda is to strengthen copyright laws and the
enforcement of them, to increase their moneyflow. It is government
sponsored monopolistic business, seeking to institute and enforce
unconstitutional copyright terms to the detriment of all other links
in the chain - be they artists or consumers.


Ben Jones

Of course, I don't expect it to do much good, but I still made the effort. Until more people start comming out, and publicly decrying these sorts of actions, can we start to get some sort of change.

Ben jones

**UPDATE** - 28/06/06
The reply by the Washington Post can be found here

Thursday, June 01, 2006

Pirates Ahoy!

Its always the way, it seems. I go away for a week, and all hell breaks loose

Biggest news, of course, is the raid on PirateBay. Its knocked my follow-up on the inconsistencies of various groups and theier statistics into the background.

Little bit of background.

Piratebay is a tracker and torrent indexing site hosted in Sweden. It offered torrent files, with a comments system to garner feedback on a particular download, which coupled with its open tracker (as in, anyone could use it, not just certain registered members) meant it grew. What really made its appeal grow, however, was the section it entitled 'legal threats'. Mainly this consisted of companies/lawyers emailing them to have torrents removed. Depending on the tone of the initial letter, the reply's could become somewhat 'colourful', but all along the general lines of 'such and such's laws do not apply in Sweden, Swedish law does, and under appropriate Swedish judicial rulings, the items in question are currently legal'.

That attitude, plus its claim of being 'the biggest bittorrent tracker' is almost certainly what has raised the ire of many. Couple that with its recent windfall from the Swedish gameshow 'Top Candidate' (to the tune of some $4,656) and the aims of its political arm, Piratpartiet, to get elected probably accelerated things. Nor, for that matter, can the date be all that coincidental. Initial reactions were “is this another hoax”, as last year at the start of June, Piratebay pretended to have been shutdown, as a prelude to their new upgraded site.

This has been quickly dispelled by a plethora of sources, on both sides. Everyone from the MPAA on in fact. Which brings me to a small point. This raid was clearly pre-planned, with the knowledge of the MPAA. Its press release was released too quickly, with too much accompanying material, for it to have been done on the spur of the moment. I'm not saying its not possible, it just doesn't seem likely. After all, “A lie can get around the world before the truth has got its boots on” - something I for one like to keep in mind.

Lets go by what is known. A search warrant of some kind was served on the host, by the National Criminal Investigation Department. A number of servers were then taken, not all of which belonged to 'The Pirate Bay', but some which belonged to other customers. One of them was the UK/Swedish company 'Gameswitch'. “Our hardware was severed from the internet at approximately 12 noon Swedish time today without notice or explanation and currently is believed to be in the possession of Stockholm Police, although this cannot be confirmed; we have thus far been unsuccessful in attempts to seek information from both the Police as they hold their silence and our contacts at our service provider, PRQ (most of whom had been taken in for questioning)” says GameSwitch Director, Christopher Adams, “As a result of this seemingly irrational and disproportionate move by police, our entire business, in effect, has also been seized.”

Hardly the best public relations exercise for the Swedish police, nor it may seem, the most legal. Admittedly, I'm no expert on law, but I have the impression that a search warrant can't be used to cart off anything and everything they feel like. Imagine, if you would, having your car impounded, just because it was in the same car park as a car the police were interested in.

As for anything else, well, we'll have to see. The only other fact anyone's been able to determine is that at least two people, possibly those going by the aliases 'anakata' and 'tiamo' have been detained by the police. Rumours, on the other hand, are rife. One that is quite interesting, however, is from SVT – apparently, they've had unnamed sources telling them that its down to media interests pressuring the Swedish authorities. Again, this is all unconfirmed, only time will tell.

The big question is, what about the other people, The businesses hurt by it. The MPAA et al. claim to be financially hurt by the actions of sites like these, but as yet have not produced any (and I really do mean any) evidence of this. Studies, yes. Hypothesis, yes. Evidence, no. An estimation based on assumptions doesn't have any factual relevance. If I made an assumption about how many more years I'll live, based on my lifestyle, general health, etc. It might be a very nice estimate, very pretty, comforting and so on. If, however, I go and get hit by a truck tomorrow, or get the Bird Flu, it won't matter how accurate the assertions are that made up the lifespan estimation, because in the end, the facts (how much longer I actually did live) didn't bear it out. That is something the media has yet to understand, or distinguish. For Gameswitch, no estimation is needed. Their business is shut down. They are losing money and who's the people behind it?

Whoever ordered this raid, and whoever was the on-scene commander, is probably going to be out on their backside after this fiasco. If you're going to do a job, don't do one that's got world-wide interest, and then mess it up so grievously. Not if you want any sort of public respect left. This is right up their with the Michael Brown/FEMA emails from Katrina.

B jones.

GameSwitch press release here
[Editors note: again, thanks to kdsde for the correct party name]

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