Free-loaders & counterfeiters damaging democracy
Music pirates, bootleggers and gangs flogging knock-off luxury goods impact the bottom line of legitimate companies. They affect the economy through lost tax revenues and may also pose health and safety risks through substandard products.
But there's a darker concern amongst some in the IT industry - that their actions could indirectly threaten democracy.
I was somewhat relieved when the European Court of Justice ruled today that Google was not guilty in a case brought by Louis Vuitton brand owner LMVH.
I don't support the counterfeiters, but had Google lost it would impact legitimate competition in the market and ultimately spell bad news for consumers. Whilst it's bad that counterfeiters will continue to benefit from this judgement, on balance this is offset by allowing legitimate companies to compete against incumbent rivals.
Several years ago I had an advert I placed on Google withdrawn. I advertised Dalton Firth Limited as being MySQL® database specialists. The advert had run for several months before Google wrote to advise me that a rights holder had lodged a complaint about a trademarked term used in my advert.
Whilst the MySQL® database is free and open source software, the company owning MySQL®, Sun Microsystems (now owned by Oracle), makes money from the free software by selling consultancy and support. They are protecting their business model by preventing rival MySQL® consultants and developers reaching new customers through advertising on search engines.
Now, an aside on a small moral question pertinent to open source software. Many I've met outside the IT industry have sympathy with the likes of Sun and other owners of open source software. They see great benefits being given to the community by "releasing" open source software and consequently defend a company's right to make money from their own product. Some see the likes of me trying to profit from other's albeit free software.
What many outside the industry are unaware of is how the open source product was first created. More often than not it wasn't "released" - it grew. It was created by people like myself - "by the community, for the community" - without financial reward. Volunteers worked and still do work without payment to create and maintain MySQL® and other open source software for others to use. I've made various albeit small contributions to open source projects, and we're planning to release some of our own scripts (like the JavaScript used for our Owl scroll bar).
Getting back on track; by preventing me advertising myself as a person competent with a particular technology, the rights owner was building a monopoly in consultancy and support services.
Preventing competition is ultimately bad for the consumer. Outside of cyberspace a good analogy would be car servicing. For years manufacturers created an effective monopoly for servicing their own cars by invalidating warranties if car owners dared to save usually around half the cost of a service by using their local independent garage.
Thankfully competition has been restored and manufacturers are obliged to honour warranties as long as the car is serviced "according to the manufacturer's specification." Competition is a good thing. Without competition, the dealerships could and did charge extortionate hourly rates for changing a car's oil, filters and spark plugs.
But it's not only competition that's threatened by a potential tightening of intellectual property rights. Companies are already using trademark and copyright law to silence their critics.
Recently Nestlé forced YouTube to remove on grounds of IP infringement a video critical of the company's use of palm oil in its Kit Kat product. This action came despite the protection offered to "fair use" of trademarks in both US and the UK law. "Fair use" covers most cases of parody and protest (the main exception being if the use of the trademark was in such a way as to cause confusion by way of impersonation or appearing as an official endorsement).
As governments build mechanisms to help companies protect their intellectual property we're already seeing how these mechanisms could be abused by corporations wishing to cover-up damaging leaks.
The Guardian was last year forced by a court order to remove leaked documents revealing schemes used by Barclays to minimise their clients' tax exposure. The order was granted because the documents represented proprietary information, the disclosure of which could hit the bank's revenues.
But surely there's a public interest defence? Taxes subsidise essential public services, and public scrutiny of these schemes may help future governments close the tax loopholes being exploited.
More worrying is the fear that governments themselves could start using this approach to get embarrassing criticisms pulled from the internet. There's nothing to stop government departments and agencies registering logos and trademarks. The next time video appears of police abusing their position could the video be pulled from YouTube following a bogus claim of copyright of patent infringement?
I'm not arguing for inaction on the important issues that the Digital Economy Bill attempts to address. Information and intellectual property is critical to our developed economy and society in general and there must be sufficient means of rewarding creativity and innovation; protecting what needs to be protected.
But there also must be sufficient safeguards to protect free speech, whistle-blowers and civil rights. In defending IP rights we must not strangle free and fair competition by allowing incumbents to erect entry-barriers for newcomers. Mass-monitoring of public communications networks in order to identify infringement carries dark risks of abuse.
A careful balance needs to be struck, and it may be that some rights aren't worth defending due to the collateral effect on democracy. Digital media and internet taxes could be used to reimburse rights holders in a similar way to how pubs and other public spaces are licensed by the Performing Rights Society (PRS).
The Digital Economy Bill attempts to address complex fundamental issues the likes of which society has never faced. It is essential that all measures are properly debated, not simply rushed-through parliament in a blind panic at the behest of interested parties.