jducoeur

Number 3,293: finding out from LinkedIn that you have your name on six software patents.

Seriously -- the most recent of those I didn't even know was still in the works until I went to update my profile just now. It's a bit jaw-dropping, because (a) the company (Convoq) has been out of business for a dozen years now, and (b) it's a somewhat dangerous patent. Unlike many software patents, this one isn't pure BS -- we were well ahead of the game in 2004, and pioneered a bunch of techniques that were new at the time.

Now I'm wondering whether it's been used against any of the players in the web-meeting industry. One of our headline features (Meet ASAP) still doesn't exist anywhere that I've seen, and I'm wondering if that's because this patent has prevented anybody from implementing it.

Sigh -- I hate, hate, hate the software-patent game. I wish Congress would get up the nerve to just obliterate the entire system: it's nothing but sand in the wheels of the software industry, making the rich richer and screwing the little guys. Unfortunately, as a senior engineer, you rarely have much choice but to play the game...

Just came across this sobering article from a few weeks ago. Summary: LiveJournal has been sued, possibly successfully, over their ONTD group -- apparently somebody posted copyright-infringing material there, and because ONTD is vaguely official and (volunteer-)moderated, there's a strong suggestion that the traditional "safe harbor" provisions may not apply.

Suffice it to say, this is not good news. The precise details of how this falls out will determine how much (if at all) it damages the assumptions of zillions of websites, but a broad interpretation of it could be hugely damaging. One to keep an eye on...

ETA: Okay, it's worth reading the actual appellate decision, at least the summary at the top. (Much of this decision is nicely readable.) This clarifies several things:

• First and most important, this wasn't a decision against LJ per se. Rather, it was the reversal of a summary judgement in favor of LJ. That is, the district court had simply dismissed the case on the grounds that LJ was clearly protected by the DMCA. The appellate court is essentially saying, "No, this one is kind of complicated -- let it go to trial".

• Second, the key reason why this is muddy is that the moderation team of ONTD is apparently led by an LJ employee. ("Although users submitted Mavrix’s photographs to LiveJournal, LiveJournal posted the photographs after a team of volunteer moderators led by a LiveJournal employee reviewed and approved them.") So it's not just "the users" involved: LJ has a quasi-official presence in the group, so they might be legally liable. That's not actually surprising -- I could have told LJ that that's a legally dumb policy.

  (This is why Querki is designed to be strictly self-policing by the users, and why it's intentionally difficult (at the technical level) for company employees to mess with user Spaces: the line between "official" and "user-directed" needs to be crisp and sharp in order to enjoy solid DMCA protections.)

• Third, ONTD isn't a normal LJ group. "In 2010, LiveJournal sought to exercise more control over ONTD so that it could generate advertising revenue from the popular community. LiveJournal hired a then active moderator, Brendan Delzer, to serve as the community’s full time “primary leader.” By hiring Delzer, LiveJournal intended to “take over” ONTD, grow the site, and run ads on it." So claiming that this group is run by "users", and therefore is protected by DMCA, is a bit disingenuous.

Overall, I'm somewhat less worried about it, having skimmed the decision. My read of this is that LJ got way too casual about DMCA, and did something strikingly stupid; Mavrix' claim that ONTD is not sufficiently independent to enjoy DMCA protection seems at least somewhat plausible on its face. The court is simply saying that, in this case, it is not obvious that LJ is covered by the DMCA.

While I do think Mavrix are kinda being assholes about it, by the spirit of the DMCA they may well have reasonable grounds for the suit. I'm not sure they're right, and I don't know how this will play out in court, but IMO the appeals court was probably correct in rejecting the summary judgement -- this one is messy, and does need to be properly litigated...

As most of my friends know, I'm a pain in the ass when it comes to the subject of Rules. It isn't that I dislike Rules in general -- by and large, I'm a Lawful Good sort -- I just dislike *bad* Rules, which is most of them.

A really great example of why comes to us last week in the pages of Popehat. Read the article -- it's short -- but ignore the predictably asinine comment thread. (Summary: a "men's rights" group sued a women-in-tech company out of existence by abusing a civil rights law.) The core point here is an important one: if you write an over-broad law, people *will* abuse it, probably in ways you find offensive. If this rule provides some kind of reward for abusing it, and no punishment for doing so, you basically guarantee that it will be abused.

Writing good Law is *hard*. Folks always seem to miss this point. You need to be crystal-clear about what you are trying to accomplish, why you are trying to accomplish it, and why you think *this* law will assist that end. You need to write the law as narrowly as you possibly can while achieving those goals, or you are begging for abuse. This applies to any organization, from the SCA to the US: don't write laws without thinking through the consequences very, very freaking carefully, focusing not on what you *want* to have happen, but what will *actually* happen when someone decides to bend your words.

And never, ever invoke the phrase "spirit of the law" -- within a year, nobody will remember what you meant, they'll just go by what you said, interpreting it to suit their ends.

As this example shows, Bad Law can have dire, counterproductive consequences. So try not to be That Legislator.

(NB for the few who might think it: the above has nothing to do with tonight's Carolingian Council meeting -- I actually think we're doing a decent job on the process there. One of my great pet peeves is that Kingdom and Society law is often less well-considered than Baronial, mostly because of Bad Process.)

I'm gradually catching up on my tech blogs from Pennsic. Remarkable the things one misses while away:

On the one hand, there's the Net Neutrality mess, as Google caves on a point they've been arguing as a matter of principle for ages, and the wireless providers using that as evidence that NN is a bad idea. They're saying it's a necessary compromise, not a business decision -- but really, this smells very much like inter-company horse-trading. It certainly fails the "appearance of impropriety" test to me.

Then, Google gets to be on the receiving side of (for my money) an even bigger evil: Oracle suing them for using Java in Android. The one silver lining here is that it might renew the well-deserved decline of Java. The language is old and creaky, and has long since been passed by better options, and now we're getting a great reminder that it is owned and patent-protected by a company that is happy to sue people using it. Time to move on to better things, and tell Oracle to f*** off.

On the good side, RIM (a company I usually pay little attention to) is coming down on the side of individual privacy, at least for their customers: they aren't giving backdoor access to countries that want to spy on their citizens. Surprisingly gutsy move, I have to say, and it's causing some middle-eastern countries to shut down Blackberry. But it makes a certain amount of business logic: corporate customers want that assurance of privacy, and it may be worth RIM losing some customers in more authoritarian states in order to reassure the ones elsewhere.

Still a week or two behind in my reading; it'll be interesting to see if there have been meaningful changes in any of these...

Interesting -- I honestly hadn't noticed that particular mental linkage until just now. It occurs to me that, the technical foolishness entirely aside, one of the beefs I'm having with Apple right now is fundamentally *political* in nature, and very deeply ingrained at that.

Like most of you, I was influenced by a bunch of books growing up; unsurprisingly, a lot of those books were science fiction. Being a not-atypical teenage male geek, I tended to be influenced somewhat less by the literary quality of those books than by the ideas in them. And the single book that probably influenced me more than any other was Jack Williamson's The Humanoids.

The plot is almost cliche by now, but the story is chillingly simple: a race of humanoid robots come to Earth, with the sole and express purpose of making the people happy and safe. Over the course of the story, it becomes clear that it's straightforward enough to make people happy and safe (and mind, the humanoids are completely sincere about their desires) -- it just requires taking away anything that can possibly make people *not* safe or happy. You are all literate enough to see where this inevitably leads, as the human race gets infantilized for its own good.

The message got driven home in other forms over the years (especially by books on the fascism meme like 1984 and It Can't Happen Here), but The Humanoids pretty much set the tone: I am fundamentally suspicious of *anybody* who parrots the line "we just need to take away a little freedom, to make you safer". Sometimes it's a lie to hide a deeper agenda, sometimes it isn't, but the point is that *even when it is true* it needs to be viewed with a lot of caution. The person who wants to trade your freedom for your safety is not your friend.

And it's a line that Apple has been using over and over again in their publicity. In the current case, it's a blatant lie -- there is absolutely no respect in which the new decision makes users safer, or improves software quality; it's a purely cynical business decision to try to hurt Google. But they keep saying it in various ways, and every time they do so I react more negatively, even in the instances where it is true. Yes, a little safety is nice, but with each restriction of freedom, it looks more and more like infantilizing the users.

(And yes, I do mean that. If you actually look at what Apple has said, consistently from the creation of the iPhone, it is clear that they regard their users as irredeemably incompetent, and they deliberately make their decisions on that basis. It's not that they make things easy to use, it's that they carefully try to make it *impossible* to do anything that might be a problem. A lot of their decisions, such as their hardcore attitude towards multi-tasking, have no other explanation. Does nothing to endear the company to me.)

Yes, some folks will disagree; you're entitled to do so. But I am finding it altogether too easy to see Steve Jobs as Our Benevolent Humanoid Overlord, who will make people happy and safe. All you have to give up is the ability to do anything he disapproves of, because it might be bad for you.

And yes, I can and am opting out of his ecosystem. But this means I get even angrier about Apple's moves on the patent front, or this most recent flap, which are crossing the line from competition as usual into something quite different. It is very clear that, not only are they going to restrict their own users, they are going to do everything in their power to destroy any possible competitors -- they want *everyone* using iPhone technology, and they are being every bit as ruthless about it as Microsoft was at their worst. Hence my passion on the subject: Jobs is rather quickly managing the transition from merely foolish to actively being the current Big Bad of the technology world...

[Really, I don't intend this journal to be an extended rant about Apple. But as Apple in the 2010s becomes more and more like Microsoft in the 1990s, or IBM in the 1970s, there is just so *much* idiocy to talk about.]

An interesting flap has arisen in the past few days -- I found out about it from this brief note (and great comment thread) in Lambda the Ultimate. The summary is that the iPhone OS developer's agreement has gotten locked down even further, requiring that "Applications must be originally written in Objective-C, C, C++, or Javascript".

Anybody who knows anything about programming knows that this is idiotic. They are requiring languages that are, by and large, old, slower to write in, and more prone to horrible bugs than many alternatives. As worded, it not only forbids better languages, it forbids bytecode interpreters and even language translators. The consensus seems to be that they are attempting to prevent Adobe from writing cross-compilers that target the iPhone, but they are doing it in the crudest possible way. The result is a growing revolt among developers, such as this declaration that Scheme is dead on the iPhone.

Mind, I think this was mostly a stupid mistake, and that Apple will quietly back down and say that this wasn't what they intended. (Which I think is probably somewhat true: I think everyone has gotten caught in the backwash of the Apple / Adobe war.) But it does illustrate the danger of Apple's "everyone will work exactly as we tell them to", highly-centralized mentality.

Paul Graham's article on the dangers of the App Store's approval process is right on target here: Apple seems to have forgotten (if it ever knew) how modern software development works. I mean, I find it pretty appalling that apps can spend weeks (even months) wending their way through the process for each version -- that's just a recipe to make sure that it takes too long for bugfixes to get into users' hands. I'm used to the Android side of things, where a typical Android app has two releases *per week*, and the turnaround time from a bug report to a fix is often 12 hours for the best developers.

When the Droid came out, the ads boasted a couple dozen reasons why it was better than the iPhone. But the one that got me was the development process, which just plain made more sense for getting great software. So far, I haven't seen any reason to change my mind about that: in the long run, I think it's a definite competitive advantage for the Android platform, and a reason why I think Apple is continuing to shoot itself in the foot...

See this rather interesting little article about why so many sweepstakes are void in Qiuebec. The more stringent the rules, the greater the incentive to avoid them...

ETA: And another example, this time about a bill that would make radio stations pay for the music they air. The broadcasters (AFAIK) did little to prevent this fee from being levied on Internet and satellite-based radio, secure in their legal exemption and thinking it would just hurt their competitors; that ridiculous inconsistency of law has now come back to haunt them...

Two interesting articles in Ars today, both on the subject of fixing some of the current problems at the junction of law and technology:

First, a significant defeat for gene patents. Basically, a judge has ruled that a major patent on breast-cancer genes is invalid. The decision will be appealed, of course, but if upheld it's really big: as I understand it, it pretty much nullifies the idea of patenting a human gene. It doesn't touch on patents for drugs to cure genetic diseases (nor should it), but shooting down the notion that a company can essentially patent breast cancer is a fine win for common sense, and likely to improve competition and innovation.

Second, the Digital Due Process initiative brings together quite a remarkable collection of heavy hitters: when you can get the EFF and ACLU to team up with Microsoft and Google, you've really got something. The purpose of the campaign is to take the current privacy laws and make them make sense for modern technology. The laws are currently not just antiquated but rather arbitrary, and have the effect that any data you have in the cloud (for example, your Gmail inbox) has little-to-no legal protection. It's obvious why the personal-rights groups want this; what makes this movement impressive is that they've pulled a bunch of major corporations on-board, on the grounds that they want clearer rules to work with. It's going to take some time to get anywhere, but smells like the kind of group that will eventually get results.

Yes, I know that not everyone is as exercised by the patent problem as I am. But I continue to be of the general opinion that software patents are vastly more trouble than they are worth, impeding both competition and innovation, directly against everything that the patent system was supposed to accomplish. They're destructive of the industry, and companies that use them offensively are The Bad Guys, far as I'm concerned.

The latest example comes from Apple, who are apparently trying to sue HTC into submission. They've filed a complaint alleging a host of patent violations, and it's possible that it's even true, but my sympathy for Apple is less than nil. People often defend software patents as purely defensive in nature, but so far I have no evidence that that's true here: this is simply Apple trying to squash their competitors through legal means, or force them to knuckle under to secret licensing agreements. Even Microsoft is rarely quite *this* blatant.

(Yes, I'm pissed off. I happen to be fond of the Android platform, and that appears to be what Apple is trying to indirectly crush here, by going after its primary manufacturer...)

Those interested in legal horror may want to watch the unfolding Joel Tenenbaum case on Ars Technica.

The summary goes something like this. Tenenbaum did a whole lot of music sharing on Kazaa over the span of a few years -- that much is not in dispute, he has admitted to it. The RIAA (the legal attack dogs of the recording industry) went after him, as a pretty easy target. He hired as his lawyer Charles Nesson, a Harvard Law professor who is determined to Make A Statement about the whole thing.

It's been gradually unfolding for months, and has finally come to trial -- I expect Ars to cover the mess in gory detail. Suffice it to say, Nesson has already driven the judge practically to distraction with bizarre filings and extreme legal interpretations -- just before the case went to trial, the judge summarily decided to throw out his argument that sharing music online was simply "fair use", and can't be prosecuted. (An argument more extreme than the worst fair use excuses I've heard in the SCA.) He has a talent for publicity, and shows lots of flair for it -- his opening statement is reportedly going to involve a Styrofoam box that will be used to illustrate the difference between bits and atoms -- but so far hasn't shown much understanding of how one actually wins a court case.

I kind of feel sorry for Tenenbaum, who is mostly the MacGuffin for a trial that is likely to largely feature the RIAA talking about law and Nesson talking about music sharing as a basic human right. I see little likelihood that he will be acquitted, and a good chance that the jury will get annoyed enough by the theatrics to throw the book at him (as they did in the Jammie Thomas trial a few weeks ago, whomping her with a bill of almost $2 million dollars for illegal downloading). I really wonder whether he understands the noose he's placed his neck in...