EULAs as “get out of jail” cards

Declan asks if the liability rules surrounding computer software should be tightened: “the EULA is the slickest ‘Get out of jail free card’ I can think of in recent years” says a consultant quoted in the article.

It’s an issue that I feel is very important. As computers take a larger, more important, mainstream and legitimate place in society, will the industry be forced to mature and stand for itself? While Declan talks mostly about legislation, I was wondering about the feasibility of a professional order for programmers, which is another approach to address the same issues.

As a member of a professional order, I have mixed feelings. Yes, it is a layer of bureaucracy, it is often self serving, it is expensive, it adds inefficiencies.

On the other hand, it is there to protect the public (ok, the Bar in Quebec also has the mandate of defending the interests of it’s members, but that’s an exception), it imposes guidelines and rules, it implies deontology, it mandates acts that are reserved for the members of the order. It is socially the sign of an important profession which carries out a role that is considered important enough to be regulated and that can have a significant impact on third parties. In Quebec we have about 45 different professional orders.

So what to do? Limit liability exceptions (THE STUFF IN CAPS, as mandated by US law I believe) in EULAs? Arguably, in Quebec the Consumer Protection Act already does that, in the area of software sold to consumers. It has however never, to my knowledge, been used regarding any licence or any other contract related to software. Would specific legislation be needed? Declan is understandably congress-shy when it comes to law and technology given the previous legislative track record.

The problem is clear: we’re relying more and more on software that comes without the most basic guarantees. Should we refrain from relying on software or bear the consequences when we do so? Should we seek a legal remedy? Indeed the current legal and economical context do not seem to provide the necessary incentives to improve the situation, as it appears to me disruptions caused by software only increase as use, penetration and entrenchment of software in society increases.

Maybe we’ll reach a breaking point economical losses will make the (assumed) extra cost of providing higher quality software appear acceptable? Or would increase cost of licences simply translate directly in profits for vendor?

I can’t help but feel that while a software (and hardware) market where accountability would be greater would certainly be very different than what we currently know, it might be become a necessity. I’d be curious to know what ways you feel would be appropriate to achieve this accountability.

[Wired story via Furdlog]

WiFi roaming

Canada’s cell phone operators are planning the “Interac of WiFi“:

The 12-million people who own cellphones, personal digital assistants or any wireless device and subscribe to Bell Mobility (with Aliant Mobility), Microcell Solutions (Fido), Rogers AT&T Wireless or Telus Mobility will be able to use all Wi-Fi hot-spots operated by any one of those companies.

Ok, but are there any WiFi hot-spots operated by any one of those companies? I know about the Bell AccessZones. Are there others?

It seems the announcement is similar to the one that led to the “success” we’ve had with SMS interconnection, which is not very reassuring.

[via BoingBoing]

Very disappointing

Remember that open letter to WIPO regarding a meeting on open source issues?

A meeting was initially planned, but due to vigourous pressure from the US administration, it seems the meeting is no longer on track.

This is sad because from strong intellectual property laws stem the right to do whatever you want with this intellectual property. Including licensing it under an open source licence.

Lois Boland, director of international relations for the U.S. Patent and Trademark Office, said that open-source software runs counter to the mission of WIPO, which is to promote intellectual-property rights.

The mission of WIPO is to promote the protection of intellectual property throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organization. Licensed IP, even under the GPL is indeed protected, thanks to the various IP legislation everywhere, harmonized under WIPO or WTO treaties.

This is not p2p file-sharing, this is legitimate licensing of one’s own IP under the terms one chooses. Especially considering the interest developing, and not so developing nations, have shown in considering open source code, WIPO should do the right thing and promote intellectual property and not be lured into considering IP as a generic item of trade.

[thanks Brightblue]

[Update: Oh.. Lessig is not amused.]

[Update2: Slashdot picked it up. It’s great that this story is making waves…]

RSS feed for individual entries

Some feeds I subscribe to put comments in their main news feed. (e.g. Unsanity or Toomuchsexy) I can understand why this is good in some cases. Most often though, it results in posts I don’t care about being marked as unread/updated in my aggregator of choice each time a comment is added. This bugs me.

A good compromise seemed to add the comment count in the main news feed (CFD does this). I thought about doing that but it does not solve the issue of posts being marked as unread in my aggregator.

There was a debate about the issue of updated or modified posts on the NNW beta mailing list. Brent’s (NewNewsWire’s author) original position was to set a threshold for modifications/differences to a post below which the post would not be marked as modified. Arbitrary rules were voted down by most people. This was around the time the defunct Winer Watcher was making noise and Aaron proposed his HTML diff program to highlight specific changes to posts, thus making pretty much everyone happy.

So now I see Brent’s wisdom (although I really like the HTML Diff highlighting: check it out in the latest public beta release of NNW) and I’m still trying to find a good solution to my original problem.

I think I found a good solution and I just added Phil Ringnalda’s technique for creating a RSS feed for every post that will include their respective comments.

Yes yes, a separate feed for every single entry. Is it overkill? Probably but the computer does all the work. Will it be used by anyone? We’ll see. Will it increase the number of comments? Hopefully. For this post, here it is.

The idea is that if a post is of interests to you, you can subscribe to it, add it to a special temp group in your aggregator or something, and monitor it separately. Hopefully this will add the convenience of being able to know if someone commented on an entry while not messing with the global feed. I like the idea of keeping a certain control on what goes out of to the public at large, same goes for the home page.

The links for the feeds are present both in the individual archives and in the comment windows in the other kind of archives, including the home page: find the text You can subscribe to comments on this page via RSS.

Ahem.. and for those if you who don’t use an aggregator, well… move along, nothing to see.

Consumer law and EULAs

Chris Barton: Microsoft security flaws trampling on consumer rights. The article’s conclusion I agree with:

For far too long users have accepted that software is different from other consumer products. And that the End User Licence Agreement you buy indemnifies the vendor against any claims, losses, or problems resulting from its use – even if the vendor knew about the problem before it sold the product. Our consumer protection law is supposed to stop that sort of cop-out.

Private copying

It seems someone discovered Part VIII and the associated Tariffs (current and proposed) : Jay Currie at Tech Central station wrote a piece titled “Blame Canada” which I was kindly directed to by Frank Field and Matt Morse.

Well, without getting into too much details, while downloading music might be covered by the Tariff, as it does not specify any source or support requirements for the sound recording , uploading without a proper licence is not.

The actual provision in the Copyright Act is

Copying for Private Use

80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of

(a) a musical work embodied in a sound recording,

(b) a performer’s performance of a musical work embodied in a sound recording, or

(c) a sound recording in which a musical work, or a performer’s performance of a musical work, is embodied onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer’s performance or the sound recording.

As you can see, it’s a fairly narrow exception. One interesting thing though is that it is an accepted use: rights holders can’t assert a right over private copying. Hence it is not presented as defence to infringement. It is obviously not “expressly legal to share music” in Canada. And the Tariff does not make everyone happy either.

I must admit that since I use way way more CD-R for backup purposes than for copying music, I do feel I contribute more than my fair share to SOCAN and the CPCC. Therefore, the whole legitimizing file-sharing argument is tempting. But I’m also aware that my music tastes are very different from SOCAN’s pie sharing methods and I would very much prefer a better metric to evaluate right’s owners compensation if it becomes a de facto way to deal with file-sharing issues. After all this is about compensating the artists and my tastes over time do not follow Soundscan.

In the meantime, I feel like CDs are taxed like cigarettes or gas and that the “incumbent industry” is benefiting from a system that might otherwise foster a more diverse and rich offering than what this industry is ready to offer.

I am not generally opposed to compulsory licensing and/or tariffs but they are a delicate regularoty exercise that requires a clear policy vision and many checks and balances to be productive.

Another interesting nugget of Canadian copyright law is the Tariff 22. Controversial and challenged in court, it applies mainly to webcasting but might have an incidence on general filesharing.

[Update: Greplaw has a similar post]

BSA audit backlash

Rockin’ on without Microsoft or how a BSA audit got a Windows user angry enough that he made his company Microsoft-free.

“I’m speaking to a standing-room-only audience at a major technology show because I use a different piece of software–that’s hysterical. “
-Sterling Ball

The DMCA … Digital movie critics act ?

Following this story on slashdot in which it is reported that the MPAA blames the falling revenues on text messaging, I found this comment from zurab:

” I propose a Digital Movie Critics Act (DMCA) that will mandate that all wireless providers monitor all text or multimedia messaging transmissions between their subscribers. In the case that they detect a bad movie review being transmitted, or a negative comment made on any MPAA product without authorization, the case with all personal information of the subscriber will be reported directly to MPAA for further investigation.

Based on the goodwill of MPAA, if they determine that an illegal act has been committed, they will be able to recover damages from each individual violator. Damages will be set as follows: from $500 up to $150,000 per incident, depending on the advertizing cost of the movie being critiqued and/or up to 5 years imprisonment per incident. Wireless service provider will be required to terminate the subscriber’s service. ”

What else can we say … let’s hope this guy is not working for the MPAA !!

Body Sushi

J’ai entendu parler d’un certain party de Noël d’une boîte de production où du saumon fumé était servi sur les corps allongés, et dénudés, d’un couple de mannequins…

Apparemment, ils ont rien inventé: le “body sushi” est dans le vent.

“So they walk in, they may be surprised, but then they say, ‘Oh that’s cool.’ And it is. Of course, people in Missouri would probably have a heart attack.”

[via MeFi]

SCO Scuttles Sense

Eben Moglen of the Free Software Foundation answers SCO’s claim about the GPL’s invalidity.

I still think that if the GPL was to be invalid, especially on the ground SCO claims, it would take with it in it’s fall a sizeable portion of the other proprietary EULAs and software distribution licences. Free software might find some surprising allies if this ever goes near a courtroom.

[via Slashdot]

La saison prochaine

Si nos Zone:3, Productions J et autre maisons locales préférées cherchent un concept à acheter, il y a un nouveau plancher télévisuel à rejoindre.

Oui oui, pour tout chez qui croyaient que Mixmania, Phenomia, Star Academie et la maison Rona, c’était pas fort, voici LapDance Island.

Comme le nom du programme l’indique, on va tenter de donner une overdose de danses à 10$ à une gang de gars.

Le concept est un peu flou, et ca risque de désensibiliser les participants (et les auditeurs) assez vite, mais je dirais peut-être pas non à faire les auditions par contre!

De plus, apparemment, à en croire les touristes et les rumeurs, est-ce que Montréal n’est pas particulièrement réputé pour ce genre de choses là? Reste à trouver l’ïle tropicale…. Le parc Jean-Drapeau est libre pour juin prochain en tout cas…

[via MeFi]