Showing posts with label copyright. Show all posts
Showing posts with label copyright. Show all posts

Copyright on the 21st Century: Brussel Copyright Summit 2007

Tuesday, June 5, 2007

Larry Lessig gave a talk at Brussel's 2007 Copyright Summit. He explained the "sharing" characteristic of the 21st Century internet economy. The video quality is not so good, but in general it is OK.

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Is Creative Commons license applicable in Indonesia?

Wednesday, May 16, 2007

I dare not to say 100 per cent "yes". If I am sitting in the judge chamber and have to decide on this matter, I think I would say "yes" and direct judicial interpretation in that favor. But unfortunatelly I am not a judge.

What underlies my doubt? Well, here's what the law says:

Article 45
(1) The Copyright Holder shall have the right to give a license to another party based on a letter of licensing agreement to carry out the acts as referred to in Article 2.
(2) Unless otherwise agreed, the scope of licence as referred to in paragraph (1) shall cover all acts as referred to in Article 2 for a period of the licensing agreement and is exercisable within the entire territory of the Republic of Indonesia.
(3) Unless otherwise agreed, the implementation of acts as referred to in Article (1) and (2) shall be accompanied by the obligation to pay royalty to the Copyright Holder by the licensee.
(4) The amount of royalty, which has to be paid by the licensee to the Copyright Holder shall be based on the agreement between the two parties by using the agreement of professional organization as a guide.

Article 46
Unless otherwise agreed, the Copyright Holder shall reserve the right to exercise or to give further licences to other third parties to carry out acts as referred to in Article 2.

Article 47
(1) A licensing agreement shall not contain any clauses, which may cause detrimental effect on the economy of Indonesia or to contain any clauses, which cause unfair business competition as provided for in the prevailing laws and regulations.
(2) In order to have legal consequences against a third party, a licensing agreement shall be recorded at the Directorate General.
(3) The Directorate General shall refuse any request for the recording of a licensing agreement, which contains clauses as referred to in paragraph (1).
(4) Further provisions regarding the recording of licensing agreements shall be regulated in Presidential Decree.

Letter of licensing agreement? Well, that is my rough translation of "Surat Perjanjian Lisensi".

Sure, agreements could be conducted verbally, as long as it complies with Article 1320 of the Civil Code. But is it enough to conduct a licensing agreement on copyright verbally?

Lets say that there is a guy named Tom who wants to publish his diary. The publisher has a telephone conversation in which he agreed to publish Tom's diary for a percentage of royalty. Is that sufficent? That is an agreement allright, it conforms Art. 1320. But is that a copyright licensing agreement? If Tom is a bad kid and he hires a lawyer, the lawyer will say: "My client has never conducted any agreement with you. The Copyright Law says that the Copyright Holder shall have the right to give a license to another party based on a letter of licensing agreement. If you think you had agreement with him, show me the contract".

Anyway, what it says there is that, it has to be done in written.

Now, will putting these icons on your blog constitute a "letter of licensing agreement"? You can say "yes", it is in fact a "license", there are terms and conditions, there are limitations. Is it "written"? Well, it is non verbal, so I guess, it is in a way "written".

But where are the party's signatures? If you said that it is a written agreement, there has to be a signature. Your answer: hey, this is 21st century dude, all we have to do is to click-through. You are right, there's shrink-wrap, click-wrap, browse-wrap, web-wrap, and other wrap wraps you name it.

That "I agree" button you see is a substitute of the signature. But in creative commons license, how can a signature be substituted so that the legal formalities is fulfilled? By citing it? By quoting it or putting it on your blog? Maybe. We can always theoritize that the expression of agreement is conducted when the licensee performs any action that is deemed to be within the realm of the CC agreement.

The problem of "expression of agreement" does not stop on CC alone, but to other non-conventional agreements in the internet and especially, a public license agreement.

I shall remind you that even in the US, the "wraps" agreement are subject to legal controversies. The validity of a browse-wrap agreement was denied by the San Jose Court on the case Comb v. PayPal, Inc. The Court held:

Having considered the terms of the User Agreement generally and the arbitration clause in particular, as well as the totality of the circumstances, the Court concludes that the User Agreement and arbitration clause are substantively unconscionable under California law and that arbitration cannot be compelled herein.

I'd love to hear your comment.

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The first virtual land case ever

Sunday, December 17, 2006

Finally, real courts will have to deal with this question:
The attorney, Marc Bragg of West Chester, Pennsylvania, says game developer Linden Lab unilaterally shut down his Second Life account, cutting off his access to a substantial portfolio of real estate and currency in the virtual world. He's demanding $8,000 in restitution. Bragg claims Linden Lab froze his account after a land deal went bad. The attorney said he found a legitimate way to purchase land at prices far below market rates, using an online auction on the Second Life website. Bragg v. Linden Research, a civil complaint filed May 1 in West Chester's local district court, charges that Linden Lab "breached an auction contract by allowing the land to auction, accepting online payment, and then suspending plaintiff's account."
The case may be weak as Brag's argument is not strongly founded. However, as stated by freelance Journalist Tony Walsh, "he might be the first person in history to sue over a virtual land deal gone sour."

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Secondlife's copybot, nanofactory and the future model of constitution

Saturday, November 25, 2006

The economic downfall of a system can be caused by a machine that can copy everything. That is the lesson we get from online game, secondlife. And the remedy? Sue the software developer under DMCA. I consider that to be a bad option, and I will tell you why.

Secondlife's Constitution (read: Terms of Service) regulates:

3.2 You retain copyright and other intellectual property rights with respect to Content you create in Second Life, to the extent that you have such rights under applicable law. However, you must make certain representations and warranties, and provide certain license rights, forbearances and indemnification, to Linden Lab and to other users of Second Life.

Users of the Service can create Content on Linden Lab's servers in various forms. Linden Lab acknowledges and agrees that, subject to the terms and conditions of this Agreement, you will retain any and all applicable copyright and other intellectual property rights with respect to any Content you create using the Service, to the extent you have such rights under applicable law.

This was a post at the official secondlife blog:
Today I met with a large group of Residents, members of the Sellers Guild, to talk about the implications of a recently-developed LibSL product called CopyBot. CopyBot allows the user to create a replication of an object, including textures, that is fully permissive. Needless to say this product has caused tremendous worry among content creators who want to understand how its use may possibly affect their business. In particular, they are concerned about theft of their creations, and the potential for unscrupulous people to undercut their prices and essentially take away their business...
Merely copying something doesn’t mean that a copyright violation has occurred. The law discusses ‘fair use’, for example, as one type of copying that is not a violation. If you DO think someone has copied something you made and is violating your copyright by profiting from the copying then you do have the option of using the DMCA process to file a complaint.
I have not hear any case where online game disputes are brought to a court, and the decision is enforced. In my last blog post, I refer to a story in which the court decide not to enforce an oral agreement pertaining the sale and purchase of a virtual sword. However, if brought to a court, the current copybot case is slightly different to the case I mentioned earlier, as it deals with copyright, something that is adhered in a real world.

Copybot is a software provided by Libsecondlife. Its purpose is altruistic, the program itself is open-sourced. Libsecondlife applies disclaimer which exempts liabilities from the utilization of its software. Although Libsecondlife does not directly infringe copyright, it could still be held liable under contributory infringement. Contributory infringement is a form of direct infringement in which, a party is aware that (1) there is an infringing activity, (2) it provides assistance or inducement for the infringement. Contributory infringement usually occurs when a party uploads serial numbers or providing a website to upload/download unauthorized serial numbers.

However, this may not be exactly the case with Libsecondlife as they only provide a hack software to be used outside the game itself, via a third party channel. The only problem is that, players are using the software in an infringing manner. So, although Libsecondlife is acquittable to contributory infringement, the case is "thin".

Nanotech expert has been calling the falling down phenomenon of a system due to the birth of abundancy as "disruptive abundance". It is feared that when nanofactory is available for free, then the existing system could collapse. Some experts has suggested to apply artificial scarcity in order to prevent the disruption. This is created either by restricting the ownership of nanofactory or providing technical restrictions to productions.

The fundamental difference between secondlife and future application of MNT is of course, in second life, disputed parties can log off their computer, get back to the real world and settle their dispute in a court. In the future MNT society, there is no way to log off.
Now, how are we going to settle our dispute? The only way of settling the dispute is by referring to our own rules of the game, the Constitution of the post-MNT society. What would the constitution look like? I don't know.

It would be great if parties in the second life disputes settle their case out of court, inside their own virtual world. We shall see, would they be able to settle their own problem or not? Can they use their rationality and refer the case to their own Constitution (read: Terms of Service)? I would suggest that they form their own internal dispute settlement mechanisms. I want to know how it work, as the results can be used to model the legal system of the future societies. If Secondlife citizens fail to solve their dispute and would need a court settlement, then it would be depiction of our future society: we will fail in settling our dispute and would require some extra terrestrial help (which of course, will never arrive).

When arguing about the existence of a law in international relation, Hugo Grotius said in latin: ibi societas, ubi ius. When there is society, there is law. When there is international society, there is an international law. When there is a virtual society, there has to be a "virtual" law.