It occurred to me today that Cory Doctorow et al. may be using BoingBoing as a legal honeypot: a sort of tractor beam for litigation the EFF may be interested in testing court…
Update pending on this. Xeni Jardin emailed me and I'm completely stoked right now. Too star struck to get a proper paragraph out. Short version is that it’s not and there’s no hidden agenda.
Since I've had a weblog, I've wondered about limitations to things like deep linking and using images/excerpts from other sites. If you follow BoingBoing, you know that almost every article is accompanied by images, audio, video, excerpts, links, etc. all taken from some other site.
There is some question as to what the law is surrounding these things. Advocates of the Free Culture movement, and Docotorow is one of the biggest, will tell you that having the ability to use and remix content is a cornerstone of the web. Indeed, this is a large part of what the EFF is fighting for.
It is important to note that the EFF is not a lobbying organization. Organizations like IPac work in the interest of the general public by lobbying congress to pass—or more often, reject—legislation related to intellectual property. The EFF, on the other hand, does all its fighting in the courts. This is an important distinction because it means that the EFF requires something hit the courts before it can move into action.
I think Doctorow and the EFF are tired of waiting around while companies use FUD tactics instead of real legal action and are trying to find ways to push some of this stuff into the courts.
Take this BoingBoing post on FastCompany’s linking policy, which basically states that you can’t link to their pages without express written permission. In the post, Docotorow blatantly links to their site four times as he’s writing about how it’s against their policy.
Translation: “bring it on!”
Doctorow and the EFF know that the policy won’t hold up in court but as long as FastCompany is selective in who they threaten to litigate, it never has to go to court – individuals will simply comply with FastCompany demands to avoid the costs in taking on a lawsuit.
BoingBoing has been diligent in linking to every site that pops up with a restrictive linking policy (NPR, Sellotape, etc). No one seems to be biting though. Hmmm, odd, maybe it has to do with all those Stanford lawyers working for the EFF.
Yesterday was probably the best example of this I've seen to
date. Xeni Jardin (also a member of the EFF: My bad. Xeni is not a member of the EFF. Her work as a tech. journalist precludes her from belonging to the EFF because she sometimes covers them.) posts to BoingBoing on
the recent Sony v. Kottke fiasco where Sony is threatening
litigation against Jason Kottke for hosting some
audio excerpts and text transcripts from the show Jeopardy. Long story
short, Kottke (whose readership, btw, is likely in the hundreds of
thousands) removed the content and is scared shitless because he
doesn’t know what he might get sued over next. This obviously falls
within the type of rights the EFF believes the public should have and
so the BoingBoing post includes links to the video, audio, text
transcripts, and other stuff that should trigger a notice from
Sony. But Sony isn’t going to take on BoingBoing because, well,
there’s that whole lawyer thing (e.g. BoingBoing has them).
This same trend can be seen elsewhere and people are getting tired of it. There’s an excellent article at NetworkWorldFusion, entitled Vendors: Stop threatening us regarding the recent copyright/patent FUDfest surrounding Linux:
What we should fear is possible litigation over unlicensed, patented material that may or may not be in Linux.
[Snip a bunch of background on Sun being silly and Balmer’s recent threats about IP indemnification]
Ptui, I say. If you've got patents, play that card, and play it now. We’re sick, mighty sick, of listening to it. Tell us, chapter and verse, what you think is the problem. Do it now. Stop the threats – go in to action. We’re the customers, remember? Stop harassing us with vague threats.
This chest thumping, lawyer-enriching hubris, and cold intimidation is causing this industry to slink around as though we’re all guilty of something that we didn’t do. If there’s a license to pay, then we’ll pay it. If you as vendors have manipulated the patent offices into granting a patent for something that you didn’t invent, then back off. If you so thoroughly patent your future products so that no one can work with them, then you've lost compatibility, interoperability, and therefore any worth to us.
Possible threat of litigation (not actual litigation) has become an accepted competitive force. This is something separate from actual copyright or patent; those just happen to be the vehicles being used right now for this new thing. Copyright/patent works great because the law around them is fuzzy to the general public. To label this force “intellectual property” is a fallacy though, it has nothing to do with IP.
We talk about how IP is part of a company’s asset portfolio, and copyrights and patents should be a big part of company’s assets. But the real asset that’s been such a boon of late isn’t the copyright or patent that grants specific limited monopoly, we've had those since Ancient Egypt and they've generally worked extremely well in society to balance the rights of the public against the rights of artists, authors, and inventors. The cool new asset is the capacity at which a company can create cost/liability for negatively impacting entities out of thin air, where a negatively impacting entity might be a competitor (Microsoft v. Linux) or a consumer (Sony v. Kottke, RIAA/MPAA v their customers, etc).
Organizations with significant legal capabilities can make up laws by simply threatening potential litigation so long as the potential cost of challenging the threat in court is greater than the challenger can afford. That’s what needs reformed. Not the basic copyright and patent law (well, some of that is shaky too) but the process for determining whether someone is, in fact, infringing. We've seen in the case of BoingBoing that the effectiveness of IP threat is reduced significantly given capable legal backing. If there were a low cost means of estimating the validity of a copyright/patent litigation threat, I believe a lot of this non-sense would just disappear.
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