Archive for June 2011

..and Atlas Shrugged.

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I’m a amateur photographer. I enjoy snapping wildlife, travel scenes and catwalk shows and I hope that, one day, National Geographic will use one of my photographs on the cover of their magazine. In the meantime, I occasionally release photos under the Creative Commons Sharealike licence  so that they can be used for things like illustrating Wikipedia articles. If you go to Wikipedia, wanting to learn about the Saatchi Gallery or fashion designer John Rocca, there’s a good chance you’ll end up looking at a photograph that I took.

One of those photographs (of tomatoes on a market stall at London’s Borough Market), has proved surprisingly popular. It’s been used by dozens of people around the world to illustrate everything from blog posts and online magazines to a Texan market gardeners’ newsletter. It’s even appeared on dozens local newspaper websites across the US after it was used to illustrate a syndicated recipe column titled 20 Ways to use fresh tomatoes.

Now, I’m very pleased that this photo has been used so widely. It’s for exactly that reason that I released it under the Sharealike licence and most of the people who use my photo adhere to the conditions under which I licensed it, most notably attributing the photo to me. In releasing these photographs under the Sharealike licence, I have deliberately and consciously given up certain rights that I, as a copyright owner, am entitled to. For example, anyone can now use those photographs for commercial purposes without paying me. I have effectively waived my economic rights as a copyright holder, as well as my right to control who makes use of the image and how they do so. However, I have retained my moral right to be identified as the creator of the photographs in question (and it’s worth noting that the CC Sharealike licence deliberately and explicitly reserves that right on the author’s/creator’s behalf).

However, my willingness to share only goes so far. The images I’ve released under the CC Sharealike licence are fine for use online but they’re not of a high enough resolution to be used for print. So, if National Geographic did want to put my photograph of tomatoes on the cover of their magazine, they would need to come direct to me in order to licence the hi-res version.

There are other photographs that I have chosen not to release under a Creative Commons licence which I have, nevertheless, published on the Internet (e.g. this photo of a model at Graduate Fashion Week). If someone were to use one of those photographs without my permission, I’d be legally entitled to compensation and to injunct the offender to cease breaching my copyright. Copyright owners’ rights are recognised by most countries, and the World Intellectual Property Organisation (WIPO, an agency of the United Nations) exists to help enforce those rights internationally.

In November 2010, the government commissioned an independent review of how the UK’s Intellectual Property framework supports growth and innovation. The review was chaired by Professor Ian Hargreaves, who published his report last month (on the same day, funnily enough, that I asked Jeremy Hunt, the Culture Secretary, at Google’s Big Tent event, when the Parliamentary Enquiry into Protection of Online IP Rights would resume, a question Mr Hunt deftly avoided answering by talking, instead, about the release of the Hargreaves Report).

Fast-forward to last Thursday evening, when I attended a Coadec debate on Copyright in the Digital Age: Will the Government Implement the Hargreaves Recommendations?

I was expecting to watch an actual debate, with representatives from both sides of the table, but it was a disappointingly one-sided affair. The panel included Prof Hargreaves himself, Lord Lucas (a Conservative peer), Stefan Glaenzer (Passion Capital), Nico Perez (co-founder of Mixcloud) and Eric Joyce (Labour MP and Chairman of the All-Party Parliamentary Group on the Digital Economy). There was nobody from a music or film company, or from an appropriate industry body (such as the IFPI, BPI or MPA). There was someone from Pearson (I failed to catch his name, unfortunately) in the audience who, when called upon, stood up and spoke in support of a Digital Copyright Exchange (one of Prof Hargreaves’ recommendations), although it wasn’t clear whether he wanted to use said exchange to licence Pearson’s content to others, or licence others’ IP for use in Pearson’s publications.

Indeed, there seemed to be little attempt to address the actual question that was supposed to be debated (Will the Government Implement the Hargreaves Recommendations?). Instead, there was much talk as to why the government should implement the Hargreaves recommendations, with a hefty dose of music industry-bashing from both the audience and, to varying degrees, the panel. Nico Perez moaned about the difficulties Mixcloud had faced getting licensed to use music, Stefan Glaenzer revealed that he has a bee in his bonnet about how much it costs to buy copies of academic research or journal articles (and, incidentally, seemed to admit that the founder of Flattr, a Passion Capital investment, had a criminal background, violating copyright as part of the team behind The Pirate Bay) and much was made of the fact that copyright, as a concept, has only been in existence for the last 300 years, (as if its comparative youth in the grand scheme of human evolution should somehow render it irrelevant). I considered pointing out that many things that were not only legal, but were regarded as perfectly acceptable, 300 years ago, now carry hefty prison sentences. However, with such a one-sided audience, I decided that discretion was the better part of principle.

I was on the verge of dozing off, when Lord Lucas suddenly popped up, right at the end, and opined that the use of the proposed Digital Copyrights Exchange (DCE) should be compulsory for copyright holders and that, furthermore, any copyright holders who refused to licence their material through the DCE should lose their copyright.

Now, in my opinion, this is an incredibly stupid idea. The whole point of copyright is that you own the intellectual property you create, and you have various economic and moral rights to control the use of your IP, benefit economically from it and be identified as its author/creator. Copyright legislation is designed to protect those rights and punish those who attempt to flout them, particularly those who attempt to profit from breaches of copyright. In short, it was intended to encourage creative-types to create and ensure that they could benefit from the fruits of their creativity.

Clearly, the advent of the digital age, in which a single person can share a piece of IP (e.g. a hit song) with thousands of others, (without necessarily gaining any benefit from said sharing and, on occasion, without even realising that they are, in fact, sharing it), has resulted in some situations where the enforcement of copyright legislation has led to punishment or penalties that are disproportional to the intent, profit gained and harm caused by the infraction in question. However, to my mind, this merely reveals shortcomings in the legislation; flaws which should be examined in a considered manner and corrected where appropriate.

What Lord Lucas was proposing was a fundamental shift in copyright legislation. Right now, as a copyright holder, I have the right to decide to whom and under what terms I licence my copyrights. If Vogue were to email me and say “We’d like to use your photograph of a tearful catwalk model in a story about how designers often fail to ensure that catwalk models have the right size shoes when they strut down the runway”, I would quote a sizeable fee. On the other hand, if a group of fashion models who were seeking to raise awareness of the exploitation of young models in the fashion industry approached me and asked if they could use my photo as part of their campaign, I would have no hesitation in allowing them to use it for free. I also retain the right to refuse to allow, say, an organisation espousing political policies that I find offensive (e.g. the Labour party) to make use of my photographs. The current legislative regime provides a framework within which I, or any other copyright-holder, can enforce those rights.

Lord Lucas wants to take that right away from me. He wants to compel me, on pain of losing my rights as an owner of intellectual property, to take part in his Digital Copyright Exchange.

I have a major problem with this and I suspect that plenty of other copyright holders would also have a major problem with it. I also suspect that it would be unworkable from a legal perspective, given our international obligations under the WIPO Copyright Treaty. Even if we could somehow wriggle out of or treaty obligations, how would we deal with copyright-holders from outside the UK? Can we, from a practical perspective, force every single copyright-holder in the world to use the UK DCE? I don’t think so.

So, I decided to take advantage of the opportunity Coadec had advertised (that the evening would be an opportunity for members of the tech community to express their views) and I stood up and expressed my opposition to Lord Lucas’ proposal, forcefully and at length. In the process, I discovered that the number of people in the audience who earn money from the intellectual property they create, was approximately the same as the number of people who exploit the intellectual property created by others (as Mixcloud does) and that both numbers were surprisingly small (in fact, I was flabbergasted at how few attendees were revenue-generating IP-creators – they could be counted on the fingers of one hand). I also sought to give Lord Lucas some food for thought by equating his desire to confiscate my intellectual property if I chose not to play by his rules, to my breaking into his house and stealing his property. With any luck, he’ll think long and hard before suggesting that idea to anyone else.

I want to make it clear that I am actually in favour of the creation of a Digital Copyright Exchange (DCE), as espoused in Prof Hargreaves report (although I think that there should be a number of competing exchanges, instead of a single state-sponsored monopoly). It’s worth noting that the music industry created something along the same lines a long time ago – the PPL and PRS organisations make licensing copyrighted music easy and straightforward.

However, I don’t believe that participation in the DCE should be compulsory, in the way Lord Lucas proposes. I believe that it should be voluntary, with no penalties for non-participation – i.e. those who decide not to join the DCE should suffer no degradation or loss of their IP rights. Prof Hargreaves himself made it clear (after I’d spoken) that he was not suggesting, in his report, that copyright-holders should be compelled to take part in the proposed DCE, nor that those who opted not to take part in it should lose their moral rights.

I’m not sure where Lord Lucas got his idea from but, whether it was his own or one he adopted, he really needs to think long and hard about the potential implications of putting it into practise because it would likely turn the United Kingdom into an intellectual property wasteland. A significant (if not vast) majority of those who currently generate intellectual property would almost certainly decamp to a legal jurisdiction which offers the rights Lord Lucas would seek to take away. Such an exodus would deny the UK thousands of jobs and tens of billions of pounds of revenue.

In other words, it’s an utterly insane idea.

Earlier in the evening, Stefan Glaenzer had indicated that the “main reason for having a rights exchange is that the trade should be superfast and easy, we dont have this today” and he drew a comparison with financial exchanges. Coincidentally, I happen to have a lot of experience working with trading systems in the City and I’m prepared to bring that experience to bear on the problem of designing, implementing and operating a DCE. What’s more, I’m prepared to contribute £10,000 to get an independent, non-profit DCE off the ground. In an ideal world, those with the necessary technical skills who support Coadec, the Open Rights Group and similar organisations, would step up and contribute their expertise and effort to create an open-source platform that would enable copyright-holders to make their IP available for licensing by anyone at standardised terms. My £10k would be used to pay for the initial hosting of said platform and administrative costs such as the drafting of licences to be used by the DCE’s participants.

Do I expect this will happen? No, I don’t. Why? Well, in my experience, when you step up and challenge people to actually be the change they want to see in the world, they usually fall short of that ideal.

Personally, I love putting my money where my mouth is. It’s something I learnt while working on the trading floor: “Oh, you think X? Well, I think Y. I’ll bet you £100 I’m right.”

It’s amazing how quickly people lose faith in their convictions when they’re asked to commit more than just their voice. “You want a Digital Copyright Exchange? So do I. Tell you what, if you code it up, I’ll pay £10,000 towards the AWS hosting and legal advice. Are you in?”

I tweeted this proposal on the #coadec hashtag but, so far, nobody has expressed an interest in getting involved. Quelle surprise.

The day after the Coadec debate, it emerged that Ed Vaizey (Minister for Culture, Communications and the Creative Industries) had held meetings with representatives from ISPs and large copyright holders’ organisations at which proposals to block websites that engage in systematic breach of copyright were discussed. The Open Rights Group were unhappy that they had not been invited to these meetings.

So, in the same week, we have groups of people from opposite ends of this particular debate’s spectrum, meeting separately. At the Coadec debate, we had the anti-copyright lobby, who want to overturn our existing IP regime and severely restrict the powers copyright-holders currently have. Meanwhile, Ed Vaizey was meeting with people who represent companies that employ thousands of people and generate billions of pounds of revenue for the UK economy.

Those who represent the major copyright-holders have no interest in (or incentive to) meeting with and engaging with someone like Lord Lucas. For them, it’s a complete and utter waste of time. They would simply sit there, watching him spout his insane ideas and wait until he ran out of breath. They would then turn to Mr Vaizey and say “If you do what this man proposes, we will (a) defeat you in the courts and (b) move our business elsewhere.”

It doesn’t take a genius to realise what line Mr Vaizey would take in that circumstance. As a government minister, his constituency is far larger than just those on the far left of the debate.

In any debate, there needs to be trust and common ground. If the community that gathered at the Coadec event the other night are not able to put forward a delegation who are capable of debating this topic in a reasoned manner, they will simply find themselves excluded from the debate (and deservedly so). The copyright-holders are under no obligation to waste their time talking with people who are pushing a radical and destructive agenda, without any regard for the rights of others. All too often, it is the extremists who shout loudest and drown out the moderates who are capable of seeing and understanding both sides of the argument. If Lord Lucas is representative of the loudest voices on the opposite side of the debate from the copyright-holders, then legislators like Ed Vaizey are perfectly justified in ignoring them.

Having said that, it’s important to recognise that current copyright legislation may not protect copyright-holders adequately (given recent advances in technology) and that the proposed plans for enacting web-blocking may lack an appropriate level of judicial oversight. We are at a crucial crossroads in the evolution of IP legislation and the United Kingdom has the opportunity to take a global leadership role in this area. If the consumer rights/anti-copright movement fails to grasp the nettle today, we may rue that failure for years to come.

The paradigm in which we find ourselves today is very different from that in which our extant copyright legislation was drafted and enacted into law. There should be a debate on this topic but, in order for it to be productive, it needs to engage those who can see the bigger picture and balance the interests of consumers with those of copyright-holders, within the technological context we now find ourselves.

To paraphrase F.Scott Fitzgerald, we need people who are capable of holding two opposing ideas in their mind at the same time, while still retaining the ability to function.

Written by jackgavigan

June 26, 2011 at 8:44 pm

Lies, Damned Lies & Statistics

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(or The Importance of Knowing What The Hell You’re Talking About).

Earlier today, Vicky Brock posted a graph to Flickr labelled “ICO website traffic impact of cookie opt in“. She had compiled the graph from the results of a Freedom of Information request to the Information Commissioner’s Office, which had yielded their Google Analytics data.

Before long, tech blogs were writing stories based on the data. Chinwag reckons it’s “cookiepocalypse“, while TechCrunch asks whether you “Want a 90% drop in your site visitors?“. To the casual reader, it would appear that implementing an explicit cookie opt-in, as the ICO have done, will result in 90% fewer people visiting your website. However, this is not the case at all.

The graph shows the number of visitors as measured by Google Analytics. Anyone who, like me, was willing to spend all of about 60 seconds researching how Google Analytics works, would have discovered that Google Analytics uses cookies to track website visitors. If a visitor’s web browser doesn’t accept a cookie from Google, their visit and page views won’t be recorded by Google Analytics.

Before the ICO implemented the cookie opt-in on their website, you had to explicitly configure your browser to reject cookies (whether in general or from Google specifically). The vast majority of web users probably don’t even know what a cookie is or realise that their web browser downloads cookies from almost every website they visit, let alone know how to restrict their browser’s appetite for cookies. Hence, most people accept cookies unwittingly and, as a result, Google Analytics can track most people on the Internet.

By introducing a cookie opt-in, the ICO turned those numbers on their head. Instead of automatically trying to stuff a cookie down the throat of every person who visits their website, the ICO will now only give a cookie to people who tick a box and click a button to indicate that they’re happy to receive a cookie. The opt-in box is at the top of the page, isn’t unnecessarily large and isn’t obnoxiously sticky (i.e. it disappears off the top of the screen as soon as you scroll down the page). Most visitors to the ICO website don’t need to accept a cookie in order to find whatever information they were looking for.

So guess what? Instead of circa 99% people receiving cookies without realising it, only about 10% of people went to the trouble of ticking the box and clicking the “Accept” button.

That is what is reflected in the data that Vicky Brock obtained from the ICO and the graph she posted.

In other words, a whole lot of people (some of whom are clearly not qualified to comment on a topic like this), are making a mountain out of a very small molehill, jumping to conclusions and prophesising doom and gloom. There are a slew of appropriate quotes here: “Those who know, speak. Those who speak, don’t know.” and “Empty vessels make the most noise” spring immediately to mind.

This is a common problem in the Internet/tech industry. Like any fast-growing sector, it attracts self-professed “experts” who basically know more about courting publicity and exposure than they do about the actual subject matter.

The moral of the story? Caveat audiens.

Written by jackgavigan

June 22, 2011 at 7:54 pm

Posted in Bubble 2.0

Apple’s Platform Strategy

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Back in January, I mused that Apple’s insistence that publishers must use the in-app subscription functionality when they sell content to users might provide a boost for Android. Then, a patent troll reared its ugly head, demanding that developers cough up 0.575% of their US revenue from in-app purchases, and this week, just hours after the Financial Times released a web app that effectively bypasses Apple’s terms and conditions altogether, news emerged that Apple is backtracking on it’s in-app subscriptions policy.

Apple’s clearly on the back foot. It appears that they failed to anticipate that publishers would sell subscriptions out-of-band and now they look a little bit greedy (for trying to grab 30% of subscription revenue), incompetent (because the platform they sought to force developers to use turned out to be booby-trapped by the Lodsys patent – even if the patent turns out to be invalid or if it’s proven that Apple’s licence also cover app developers, a lot of damage has already been done) and foolish (because it turns out that, despite all Apple’s efforts, you can simply sidestep the App Store – and their 30% commission – by building your app in HTML5 instead of natively on iOS).

Platforms need to be stable (both in terms of the technology and the commercial terms and conditions the platform owner imposes) to attract and retain 3rd party developers and content providers. How can a publisher formulate a strategy for a platform if you don’t know what the rules of engagement are going to be in six months time? On top of that, those who scrambled to update their apps to incorporate Apple’s in-app purchase functionality by the June 30th deadline are likely seething about the wasted effort.

Because platforms rely on network effects, it’s important to get your strategy and your business model right. If you don’t, problems are magnified by the very same network effects you rely on to make your platform successful in the first place.

The more restrictive a platform, the less attractive it becomes. Had Microsoft imposed T&Cs as restrictive as Apple’s on Windows software developers, Windows would not have achieved the dominance it did during the 1990s. (Incidentally, there’s a certain irony in the fact that FT’s use of HTML5 to escape Apple’s restrictions is reminiscent of the threat that Microsoft perceived the Web as posing to Windows’ position as the dominant OS.)

Similarly, if the platform owner tries to impose too high a price on access to their platform, it makes it less attractive. If everyone who sold content in PDF format had to pay commission to Adobe, I doubt we’d all have Acrobat Reader installed on our desktops.

Network effects mean that a significant portion of a platform’s value is derived from its users. If the platform owner seeks to extract significantly more value than they contribute – through, for example, innovative design and functionality, or the creation of a user-base through marketing – it becomes economic rent.

Apple make money on each iPhone and iPad they sell. They make money each time someone signs up to become an app developer. They make a commission on every native iOS app sold. Was it wise to also demand 30% of the revenue from paid-for content accessed through those apps?

Written by jackgavigan

June 11, 2011 at 8:09 pm

Posted in Openness