GA Bar ICLE Tech Law Seminar – Morning

I’m spending today at the 20th annual Bar of georgia Technology Law Institute.  Rather than listen mindlessly as people fumble over describing how P2P networking works I have decided I will do a live journal update for the conference.  Considering the number of viewers I have, live does not need to be live; since the GA bar is providing WiFi without connectivity, it will come in chunks.  I’ll add in formating and important links after the event (probably tomorrow).  I guess this is the value of a wiki…

Here’s the Morning session:

EDIT: Actually, given the brevity of the afternoon session, and the fact that the first part was unremarkable, and the second part is available for download from the Tech law section’s web site, I’m not going to have a followup post.

First panel – Digital Media Rights Panel
First of all, during the entirety of the panel discussion I never heard a cross word about the use of DRM.  The most negative analysis of DRM discussed the efficacy, and even that was blamed on the lack of DRM in the source media.  These are people who just do not get it.  It’s is not entirely surprising given that these people would much rather see the IP business go to what they already are comfortable with.  Of course, wishful thinking is something that the client can do for themselves at a significant discount isn’t it?

My largest complaint is that nobody in the panel discussed or even tacitly admitted that DRM nesicarially means that you are delivering a lesser product.  DRM means that you are not buying, you are leasing.  DRM means you are giving up your rights under the First Sale Doctrine.

Worst Ideas from the Panel
Marty Lafferty
Lafferty was the most frustrating because he got so many of the underlying premises right, only to come crashing down at the last conclusion.  For example, he talked about how the response to new technology follows a pattern of useless terrified thrashing by the rights-holders, moving to a profitable use of the technology.
By way of example, the VTR technology like VHS and Betamax was initially feared, but now represents 5x the revenue of theatrical release.  So, reasonably enough Lafferty argues that the industry should use the technology which is already delivering the content to home users to give consumers simultaneous release of movies in theaters and at home.  The fumble?  Lafferty suggests a price of $100 USD.  One hundred dollars.  How on earth they can in one breath acknowledge that they are competing with free, and in the next suggest tripling the price of an already bloated theater ticket is far beyond me.
His other great idea?  subsidize music downloads with advertising paying for a subscription model.  I have personal issues with the idea of renting my music, but the idea seems to have some traction, so I can’t fault him there.  Where I can fault him is that the kind of advertising he wants is adding in an audio ad into the audio file itself.  This is not objectionable, but it is foolish.  Nobody will want ads on their cds, even if it is no-cost.  DRM makes the file less useful and advertising makes it less appealing.  True, you are fighting free with no-cost, but you are firing rubber bullets.

Kevin LapidusYellowBrix
Kevin is scary.  First of all Kevin’s bread is buttered with pointless content arbitrage.  His company is attempting to profit from providing a service available for free through RSS aggregation.  They do this by licensing re-use of text media for display in places outside of the realm where the end user has the right to read the content for free.  They push this content to places like elevators, lobby info displays, corporate web pages, and corporate intranets.  With the exception of the web pages these are places where the information is at best a questionable value to people given that the information is being filtered by someone else based on keywords chosen by someone else.  Even worse, some of these examples will likely be seen as an intrusion into their life.  Someone generating their own news feed using RSS is a better solution whenever available. As for the web page syndication, this has some value, but I don’t know how much someone would want to turn over editorial control of their web page to someone else.  In that event, it would be much better for there to be an easier licensing scheme which would cut out the long and winding YellowBrix road.  (Perhaps some sort of statutory licensing for derivative works)
Kevin’s most bile-churning claim is that you should not look at intent when it comes to P2P or any other technology evaluation.  The technology should be evaluated by the majority use of the technology.  By way of example of his theory, automobile sales will end to stop the illegal majority use of speeding.  Too bad America’s shipping and interstate commerce.  I hope you didn’t want produce or anything.  Suffice to say, this does nothing to help consumers and is an atrocity of the ideas upon which IP was founded.

Second Discussion – Merger and Acquisition in the IP age
There’s not much here that is interesting for general consumption.  The Main focus is that the intangible goods are things with which courts have trouble.
Personally, I blame the pervasiveness of analogous reasoning in Legal scholarship.  Analogies are very useful when a concept is first being introduced, but the value drops precipitously as familiarity increases.  This should not be suprising.  Discussing something which is definitionaly different than the subject at hand must have some problems.  For whatever reason, the Law artificially extends the use of analogies far beyond their usefulness.  This could be the influence of learning to deal with juries, PR, and clients; could be the fact that it is easier to work on solid ground and then copy-paste the work to the field of battle; could be that lawyers are scared to death to place their own thoughts under peer review; could be something entirely different.

Third Presentation – Issues with Open Source licensing

Jim Harvey – GPL 3.0
The Educational licenses (BSD) are different than the Bilateral (GPL) because the former is not “viral” in that is does not attach to the product and all derivative uses down the line.  The viral licenses are a new concept in IP licensing which is dramatically different and forces the
The SCO v. IBM case is widely discussed.  A more interesting case for the acceptance of UNIX in the world are where SCO is suing end users.  SCO has sued Daimler-Chrysler under breach of contract for not certifying that the use of UNIX is in compliance with the license.  Nobody can find the license, so that was dismissed.  SCO v. AutoZone, however, has not been dismissed, only stayed.  It is currently in the discovery phase, waiting the results of the IBM case.
GPL 3.0 is the next revision from the free software foundation.  Thanks to the viral aspect of the GPL, this will propagate very rapidly.  The linux license Linus Torvolds worked out allowed for distribution under any future GPL licence.  60% of the open source software out there is subject to upgrade.
The issues to be addressed in 3.0 are:
The internationalization of the license (Jim has a running bet with the developers on if that will happen)
What constitutes a distribution?
The Trusted Computing Initiative
What is a derivative work?

Certificate of Origin: the idea is that the work submitted to a process is affirmed to be free from Copyright and Trade Secret property.

Marc Fleury, CEO of JBoss told a wonderful story about trying to get money for his Open Source software, being laughed out of the Venture Capitol firms and ending up moving to Atlanta to live with his in-laws because he was ahead of the wave of OSS community support.  If that story is not on the interweb somewhere we ought to petition him for it.
As far as a OSS business model, there is the standard answer that the big revenue is software development is service anyway, so if you drop the overhead on everything regarding development and distribution.  The alternatives include is dual licensing like mySQL does (they claim to own all of the © in their code, but offer the code without warranty of either property or function – possibly not on firm legal ground) or the “bait and switch.”

Fourth Presentation – Technology Litigation
He worked hard to keep our attention, and 80% of it was looking at animated slides so I didn’t write anything down.

Lunch was half decent.  Some sort of beef tenderloin sliced over small greens.  Too much garlic, too much rosemary. The legal humorist was not that decent.  He seemed totally off his game, but then we’re a tough room.  From his résumé, testimonials, and reputation he might be really funny, but then as far as I know those were all self-provided.

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