RIGHTS AND WRONGS

Dick Pountain/Tue 22 February 2005/12:50 pm/Idealog 127

Eagle-eyed readers may have noticed that Simon and Ian's 'Unix Servers' column changes its title this month to 'Open Source'. This was at the authors' suggestion and doesn't announce any big change in content: almost all the software they use in their business (and hence write about) is already open-source, and since some of it involves Windows clients the broader title seemed appropriate. If you need any further evidence that open-source software has come of age, in this same issue Jon Honeyball reveals that he's abandoned Internet Explorer for the Mozilla-based Firefox...

I'm getting a strong feeling that 2005 will see some sort of showdown between the combatants in the War Of Intellectual Property Rights. The two camps are now clearly distinct. On the one side you have the giants of the entertainment and software businesses who want to extract every penny of profit possible from the intellectual assets (films, tunes, applications) they own. With the success of iTunes and Microsoft's Product Activation they've already won two famous victories, by getting paid for lots of stuff that a few years ago would just have been stolen. But they want more, much more. They'd really like you to pay for *every single view* or use of their assets and never to own them outright, and indeed it's their legal duty to their shareholders to pursue such an end if possible. This already happens with cinema films and pay-per-view television, and the technical means exist to impose it on DVDs and computer software (Digital Rights Management, unique CPU identifiers, encrypting OS) if only popular resistance can be worn down.

On the other side we have all those folk who want software to be in some sense free, from the Free Software Foundation's GNU, through open-source participants, all the way to file sharing networks and pirates. The people on this side are no longer naive about money matters: no-one can devote weeks to writing software without *someone* feeding them. For example much open-source software is distributed free but offers paid-for support, and even GNU licensees may charge for their products under well-defined conditions. What they all agree on is that the user must own the product, and I agree with them. My data is my livelihood and having it imprisoned within an operating system that I don't own would be scary. Professional writers (like me) need to get paid and I'm happy to pay reasonable fees for online data of the highest quality: $20 a year for access to the New York Review of Books' online archive is a fantastic bargain.

The free side gets a boost from Google's recent deal with some of the world's great libraries - including the Bodleian, Harvard and New York Public - to digitize their books and put them online. Such content will be free to the user, with Google recouping its expenses via advertising (and if this doesn't finally put paid to popular resistance to online ads, what could?) Even two years ago it seemed impossible that these great collections would ever get scanned since no public institution can any longer spare the enormous sums needed. Internet barons like Google, Amazon and eBay do have that kind of money, and if one of them is prepared to plough some back it would be not merely churlish but self-destructive to begrudge them some reward.

Is there any hope of compromise between the two warring factions? I think so. Scientific American's February 2005 editorial points out that scientific and artistic progress, upon which we're constantly told the future of our economies depend, will cease if too strict an interpretation of copyright is enforced. If Shakespeare were alive today he'd be hamstrung by copyright lawyers: 'Romeo and Juliet' was adapted without permission from Arthur Brooke's poem, and Brooke himself lifted the story from French translations of Italian stories. Such borrowings and influences are the backbone of all literary enterprise - pure invention out of thin air is not only rare but often crap. Similarly, free access to others' results drives forward the pursuit of science. Once the law delves too deeply into content ownership and defines the offence of 'plagiarism' too closely, this mechanism comes to a grinding halt.

Present copyright law is too inflexible, providing no option between total control ('All rights reserved') and the prosecution of piracy, and one promising solution is that offered by Creative Commons. Set up by Lawrence Lessig of Stanford University in 2001, this non-profit organization has created around a dozen different styles of free licence that enable authors to choose which rights to give away and which to keep - thus creating a broad middle ground between total prohibition and free-for-all. Works published under Creative Commons licences are marked (cc) rather than (c). For example one CC licence permits others to use the work free provided it's attributed, while another permits sampling but not use of the whole work. There are over five million CC licences now in force, used by institutions from MIT to the Public Library of Science, and the BBC has just decided to issue archival material under a non-commercial CC licence. Don't expect to see Sony, Fox or Microsoft getting enthusiastic about CC any time soon, but with users like the Beeb the courts can't avoid taking it seriously.