Today, however, the government delivered a surprise to those who thought it was in the pockets of rights holders’ lobby groups, by announcing that it plans a radical overhaul of several important intellectual property laws — including some which seem to clash with that court ruling.

In an announcement this morning, ministers said that the system needed serious updating if it was going to reflect the changes in the real world that have happened over the last generation.

“Opening up intellectual property laws can deliver real value to the UK economy as well as the creators and consumers,” said business secretary Vince Cable. “We can’t carry on saying that businesses should embrace technology but then not allow consumers to use everyday technology to play works they’ve paid for.”

The move comes as a response to a public investigation into intellectual property, the Hargreaves Review, which made a series of specific recommendations about how U.K. law should be changed. All of those, the government said, will be implemented in a series of moves that will rid of some of its most archaic laws and “free up innovative British businesses to develop new consumer technology”.

You can dig through the complete list of plan in the full report, but here are a few highlights:

There are more parts besides: a new system to allow the licensing of orphan works and an agreement not to extend the patent system into new areas. And it’s still early days, since these proposals all still have to be pushed through into law. Nor are they going to be welcomed by everybody — some rights holders have already expressed dismay. Lavinia Carey, director general of the British Video Association, told the Financial Times that it was “extremely damaging”, for example.

But the reality is that at least now the status of any copyright claim, or website takedown, or licensing issue can be tested and challenged in a court of law, rather than simply lobbied into legislation without proper public scrutiny.

And that should certainly make life easier for a lot of startups and technology companies that currently spend more time worrying about the legalities of their business than getting on with their work.

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Huddle co-founders Alastair Mitchell and Andy McLoughlin

One of the many features Google debuted in its highly anticipated Google+ social product last week was a group chat application named “Huddle.” At least one company was particularly nonplussed by Google’s big launch: Huddle, a London-based startup that provides cloud-based communication software.

Interestingly, this is not the first time Google has stepped on Huddle’s brand name turf. A few years back, Google launched an internally developed cloud collaboration app called “Huddlechat.” The app was promptly pulled entirely after some pretty intense criticism surfaced in the press about Huddlechat’s similarities to both Huddle and 37Signals’ Campfire product.

Huddle, the company, which has raised $14.2 million in its five years in business, issued a blog post today about its second brush with a Google-owned doppelganger. Overall, it seems that the startup is not exactly pleased with the situation — and it is not taking it lightly:

“There has been much speculation on Twitter and in the press as to whether the feature in Google+ is a joint venture between us and Google.  While the Huddle feature in Google+ appears designed to foster personal collaboration based on relationships and consumers’ interests, the Huddle feature in Google+ is not associated with Huddle, the leader in enterprise cloud collaboration and content management. There have also been suggestions that Google has, in fact, acquired us. There is no basis to such speculation.

…The Huddle team has worked hard to build its brand visibility worldwide and maintaining this is extremely important.  We have contacted Google about this matter, and our hope and preference, of course, is that this issue reaches a timely and amicable resolution.”

But while it was easy for Google to retract a small, quickly deployed proof-of-concept app like HuddleChat, the latest mixup will probably not be corrected so simply. Google+ is such a massive project that it seems unlikely Google will backpedal on the Huddle app unless there is a real legal problem with the way it uses the name. Huddle is a word in the common vernacular, so by putting the word “Google” in front of it, the app is probably in the clear from a legal standpoint.

It is unclear if the Google+ team was aware of Huddle the startup, or of the earlier Huddlechat debacle, at the time that it named the group chat application. This could simply be a classic case of what can happen at a very large corporation: Often, the left hand doesn’t know what the right hand is doing — or has already done in the past. Unfortunately for Huddle and other companies like it, it’s often the industry’s smaller players who feel the negative effects of that miscommunication the most.

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Social media such as Twitter and Facebook makes anyone a publisher, and that’s disrupting the media industry, but the legal system isn’t much better off, since the courts like to control the flow of information almost as much as the media does. British courts in particular are wrestling with the impact of these technologies on their ability to control the publicity around a trial. In the latest move, a judge has issued an injunction that specifically bans the publication of any information involving the case via Twitter or Facebook. But in the battle of social media vs the courts, the former will almost certainly win.

As The Guardian describes the case, the judge in question — a judge with the Court of Protection, which is associated with the family division of Britain’s high court — handed down the injunction on Thursday in the case of a woman known only as “M,” who has been in vegetative state since she suffered swelling in her brain stem in 2003. Her mother has applied for an order that would allow her caregivers to withdraw medical treatment and allow her to die. The judge’s injunction prevents publication of any information:

[in] any newspaper, magazine, public computer network, internet site, social network or media including Twitter or Facebook

Presumably, the judge in question would like to prevent this case from becoming a cause celebre for anyone who is opposed to euthanasia, which could drag the family into a painful public struggle. And that is a noble goal — but banning publication of things on Twitter or Facebook is simply not going to work.

As Hosni Mubarak discovered in Egypt, there are few controls that can be placed on social tools (apart from shutting down the entire Internet), since they allow for instant publication by virtually anyone with a keyboard. While governments — and presumably courts — could pursue people in the same way that the Egyptian and Libyan authorities have (and as the U.S. government has in its attempt to make a case against WikiLeaks) if the tweets or status updates in question occur outside their country they will have little recourse. As one British MP said, the courts are trying to be like King Canute, the legendary Danish king who tried to stop the tide by yelling at the ocean.

This injunction is also just the tip of the iceberg in Britain. The country is also notorious for issuing what are called “super-injunctions,” which allow certain people — in many cases, celebrities and politicians, but also corporations — to get media bans that not only forbid anyone from publishing information about a case, but forbid anyone from publishing that there is an injunction at all. In one famous example in 2009 known as the Trafigura case, the fact that information had been released on Twitter actually helped derail a company’s demand for a super-injunction.

In the early days of the web and the consumer Internet in the mid-1990s, a Canadian court tried to place a publication ban on information about the trial of sadistic killers Paul Bernardo and his wife Karla Homolka, but U.S. news organizations and media websites were more than happy to publish those details (one of my first uses of the Internet). Now, with the rise of real-time and mobile publishing through Twitter and Facebook and other social networks, the job of the courts is even more difficult — and arguably all but impossible. They can try to sanction jurors who tweet or reporters who do so, but information will find a way to get out.

Just as the “democratization of distribution” (as Om calls it) has affected the music industry and the movie business and newspapers and books, so its ripple effects continue to move through the legal system and through government. How those entities deal with it remains to be seen, but ordering it to stop is unlikely to work.

Post and thumbnail photos courtesy of Flickr user Jennifer Moo and bloomsberries

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Today, ZTE responded with a lawsuit of its own. The company announced it is suing Huawei in China for patent infringement over its own fourth-generation LTE wireless technologies. The company is demanding Huawei stop the patent infringement and pay damages. (The release did not mention the data card technology that is part of the basis for Huawei’s suit.)

ZTE also indicated the home-turf lawsuit was just the beginning of a more global legal blitz. “There will also be a series of legal actions taken globally to protect ZTE’s rights on intellectual properties, ensuring its legitimate rights and interests will not be compromised,” the company said in a statement.

Image courtesy of Flickr user dpape

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And it affects the entire legal process, from jurors tweeting while sitting in the jury box to judges exposing potential biases on their Facebook accounts. Everyone has a cell phone, a computer and, likely, at least one social media account, so there are plenty of avenues on which to cross ethical lines.

Tweeting from the jury box: Public enemy No. 1?

Juror tweets have already made plenty of headlines, most recently when Steve Martin tweeted death penalty jokes while doing jury duty. In 2009, an Arkansas juror in a civil case tweeted — supposedly after the verdict had been issued — insults about the defendant in the case, and the plaintiff sought a declaration of mistrial based in part on those tweets. In November 2010, a Washington juror in a death-penalty case tweeted after getting selected for jury duty “OMG! jdg picked me 2 decide doods f8! Looks gil-t frm here ;-).” Although the judge scolded the juror, he was allowed to remain on; the case resulted in a hung jury.

According to Ben Holden, director of the Reynolds Center for Courts and Media, jurors using social media during the trial is a big deal, but it takes on different flavors that not all judges or attorneys understand. A juror pontificating, or pushing information out, is easy enough to deal with: If the information is discovered and shows a bias, the judge (hopefully) removes him. But Holden says that jurors pulling information is a far more complex issue and can end up polluting the entire jury pool. Tweeting jurors could have their opinions swayed by their cyberspace contacts, or they could actually conduct outside research on the case, which is a big no-no. Jennifer Lynch, a staff attorney with the Electronic Frontier Foundation, describes these situations as the intersection of parties’ right to a fair trial with jurors’ free speech rights.

It’s anyone’s guess how a judge will react in any given situation. Holden said that some judges are particularly naive about social media. “I find some judges I’ve spoken with either don’t fully understand how pervasive social media … is, or they don’t respect it enough,” he said. “[T]hey don’t see it as fundamentally different from newspapers, magazines or the town crier.” But some judges do get it, and their reactions might be as draconian — and potentially unconstitutional — as their colleagues’ opinions are naive. According to Lynch, some judges are actually demanding jurors’ social media login information so the judge and attorney can monitor their web activity during the case.

Your Facebook profile could get you out of jury duty

Jurors’ web activity presents other issues, too. Some attorneys are using Facebook profiles and tweets to both select a jury and cater their trial strategies based on what they find. Researching jurors is nothing new, though, and Lynch points out that there’s probably not much wrong with attorneys using even publicly available information from social media services to this end. Actually, a few bar associations even have authorized the practice in advisory opinions, she noted. At this point, the clear ethical line appears to be at creating fake profiles to friend jurors and access information in someone’s private account — a prohibition that extends to unearthing evidence about parties during the discovery process.

But the problem isn’t that simple. Maybe one attorney is, as Holden put it, “a friend of a friend of a friend of a Facebook friend” and has access to certain juror information that the opposing attorney doesn’t have. That attorney hasn’t necessarily done anything wrong, but, Holden asks, “Do you really want to have a system of law where the Sixth Amendment turns a blind eye to the fact that a lawyer happens to have friended someone who allows [the lawyer] into an account … giving them access to information on the prosecution side that perhaps the defense lawyer doesn’t get because he’s not a friend?” It’s one thing to gain an edge because of due diligence in a fair fight, but he sees a problem with cases potentially being decided because of an attorney’s social graph.

Can a Foursquare check-in prove an alibi or seal one’s fate?

For criminal defendants and civil litigants, their social media profiles can provide a rich field of evidence. Lynch said that judges now see a lot of social-media-derived evidence, which might inspire citizens, in general, to think about how they use the services. MySpace is still rather popular among individuals who end up in the criminal justice system, she explained, and Facebook photos could be used to disprove the extent of damage in a personal injury case. Even if attorneys don’t undertake underhanded methods to access private information, Lynch noted that profile photos are always available.

Additionally, noted Kurt Roemer, chief security strategist at Citrix, Facebook privacy settings are sometimes rolled back with updates, potentially making once-private information public. In other instances, he suggested, Foursquare check-ins could be used for a multitude of purposes, from finding potential witnesses to a crime, to helping prove whether a defendant was where he said he was. Knowing the potential for their previous social media activity to be used against them, Roemer also pointed to a trend among UK young adults of legally changing their names when entering the workforce to disassociate themselves with their Facebook accounts.

Should judges ‘friend’ lawyers, or be on Facebook at all?

Judges and lawyers aren’t immune from the ethical pitfalls of social media, either. EFF’s Lynch notes that attorneys tweeting or posting Facebook status updates that even casually relate to cases could violate the attorney-client privilege, and that rules restricting how attorneys solicit business also extend to social media. The Reynolds Center’s Holden cites, among other issues, possible concerns over ex parte communications stemming from judges friending attorneys that have cases before the judge. Whereas Ohio generally allows such relationships provided judges remain vigilant, Florida has taken a relatively hard-line stance against the practice.

At this point, it’s unclear that the legal system will get a handle on which social media practices are acceptable and which are not anytime soon. Lynch thinks there might be clear solutions to specific problems, but acknowledges that it’s a topic not easily addressable on a broad scale. Holden, who also heads up a new academic publication called the Courts and Media Law Journal, concurs. “We’re going to kill enough trees for 500 pages in a year [on this subject],” he said, “and we will not come up with an answer.”

Image courtesy of Flickr user Valerie Everett.

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As media analyst Jeff Jarvis and others have pointed out, Visa and MasterCard and other payment services allow online users to send funds to a wide range of questionable entities, including sites that offer pornography. So why are they so concerned about WikiLeaks? Visa said that it had suspended support for payments to WikiLeaks while it “investigates” the organization, while MasterCard said that its rules prohibit customers from “directly or indirectly engaging in or facilitating any action that is illegal.” PayPal also said its terms of use prevents the service from being used to “encourage, promote, facilitate or instruct others to engage in illegal activity.”

Needless to say, the phrasing of those rules casts a pretty wide net — not just engaging in illegal activity, but encouraging it or instructing others in how to engage in it. But do even these broad rules apply to what WikiLeaks is doing? It’s not clear that they do. All the organization has done is to publish classified documents that originally belonged to the U.S. government — something that may be uncomfortable and embarrassing, but is not obviously illegal (even the Justice Department doesn’t seem too sure about whether WikiLeaks is guilty of anything). The only obvious crime that was involved in the release of those diplomatic cables was committed by the person who originally took them, since doing so is an offense under the U.S. Espionage Act.

Publishing those documents is not illegal — or at least, not yet, which is why Senator Joe Lieberman (I-Conn), the chairman of the Homeland Security and Governmental Affairs committee, has put forward his proposed SHIELD law (which stands for Securing Human Intelligence and Enforcing Lawful Dissemination), which would make it a crime to publish leaked classified information if doing so endangered U.S. agents or was otherwise not in the national interest. And this law would not just apply to WikiLeaks, but potentially any mainstream or online publication or media outlet that chose to publish any of the information, since — as I have tried to argue before — WikiLeaks is effectively a media entity.

Interestingly enough, while companies such as Amazon, Visa, MasterCard and PayPal have cut off the organization, Facebook released a statement saying that it has no issue with WikiLeaks — although so far no classified cables have been posted to the site’s Facebook page. Meanwhile, WikiLeaks’ leader Julian Assange is in court in London facing possible extradition to Sweden on sexual assault charges.

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Post and thumbnail photos courtesy of Flickr user Keith Maguire

It’s a bit ironic that such a closed platform as Apple’s iOS, and its accompanying App Store, welcomes open-source software at all. Yes, the Apple iPhone SDK states, “If Your Application includes any FOSS, You agree to comply with all applicable FOSS licensing terms.” But the platform itself, and the App Store rules, effectively block adherence to this stipulation by removing the ability to access, read, and redistribute underlying source code for apps.

It’s a core part of Apple’s mantra, as repeated by Apple CEO Steve Jobs this week, that “integrated will trump fragmented [Android] every time.”

This integrated approach is at odds with the more free-spirited, open-source approach, as reflected in new skirmishes between open-source advocates and Apple or app developers. For example, the Free Software Foundation recently filed a complaint against Apple for its distribution of the open-source GNU Go game without providing its underlying source code, as required by the GNU General Public License (GPL). The FSF believes Apple’s App Store rules violate Section 6 of the GPL, which indicates that “a redistributor of the licensed program may not impose further restrictions on the recipients to copy, distribute, or modify the program.” Apple doesn’t allow any of those freedoms.

Unsurprisingly, rather than confront the question, Apple simply dumped the GNU Go from the App Store.

But the issue won’t die, thanks to a similar concern arising over The Battle for Wesnoth. It’s a tricky situation, because in this case, Wesnoth’s developers — at least, many of them – do not favor the FSF’s position, and believe that the App Store regulations do not violate either the spirit or letter of GPL licensing.

As an interesting corollary to this legal argument, Wesnoth developer David White defends open-source applications on the App Store because they funnel money and interest back into open-source development:

• Wesnoth has obtained significant revenue streams which have been used to fund the development of art and other content in areas in which Wesnoth needs improvement to compete with commercial offerings.
• FLOSS [Free, libre, open-source software] gaming has been exposed to a significant audience which might be otherwise unaware of it.
• Other FLOSS games are now also interested in distribution on the same platform.

In large part, these funds are possible precisely because the App Store regulations make it onerous to get Wesnoth on the iPhone/iPad in any other way other than through the original Wesnoth development team. Apple doesn’t allow multiple entries for the same app within the App Store, and Apple’s policies make it difficult to replicate the open-source code.

Can developers get the source code from the app developer’s website? Absolutely. Can they recompile it and distribute it to jailbroken iOS devices? Of course. It’s open source. It’s the platform that’s closed, and closure provides the opportunity to better monetize the code.

The platform effectively makes the open-source app proprietary without a single line of code licensed under a restrictive license.

This isn’t actually new. Think of Google. As Om Malik has written, infrastructure is Google’s key competitive advantage. Guess what? That same infrastructure that makes it possible to run open source at dramatic scale and efficiency is the very same infrastructure that makes it virtually impossible for anyone else to make any use of this open-source software.

Because Google runs this software internally, it isn’t required to release it.  Even if Google released every single line of code, small competitors couldn’t replicate its services, if for no other reason than they couldn’t afford the hundreds of thousands of servers necessary.

More fundamentally, even big competitors couldn’t replicate Google, for the reasons Tim O’Reilly pointed out at the Open Source Business Conference in 2009:

Tim asked a question to the audience: “Could anyone in the Open Source community build the infrastructure to deliver Google Voice Search?” The response: a stony silence. The implication? Vendor lock-in is [no] longer about proprietary source code. It’s about massive, hard-to-replicate data sets — making Google a potential Microsoft of the next decade.

Hardware and data make Google’s source code essentially useless to anyone but Google. Does this make it less valuable as a member of the wider open-source community? Hardly. Indeed, as I’ve said before, Google is the world’s largest “open-source company,” and a better open-source citizen than most. Why? Because Google can afford to give away mountains of code because its sales aren’t threatened by competitors (or customers) taking the services enabled by its code without paying.

Smaller software developers lack Google’s scale, of course, but may be able to achieve some of the same effects by writing applications to run on closed platforms like Apple’s.

Wesnoth’s developers don’t appear to have been motivated by the desire to sell more games because of Apple’s restrictive policies. Rather, they simply wanted the maximum audience for their creation. But the closed nature of the App Store is helping them to both find more users and more paying customers, all while leaving source code fully available for those who actually want it: developers.

Disclosure: I work for Canonical, a Linux vendor.

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On Jan. 10, Tsai posted a story about Samsung’s new M800 device, complete with official company press photos of the new phone. The gadget blogs picked it up, hailing the M800 as Samsung’s answer to the iPhone. On Jan. 17, Tsai received a cease-and-desist order from Samsung that not only instructed him to pull the post, but demanded to know the source of the leak that allowed him to get the photos and specs associated with the phone. The next day Tsai took down the post — and put up the C&D letter.

In the post accompanying the letter, Tsai says he gathered the Samsung photos from the company’s own press site, to which he’d had access for well over a year because he blogged about cell phones. He further infers that he gathered the details about the phone from FCC data as well as a recent Samsung press release on a similar phone. Samsung has not yet responded to questions about the case, but Electronista, which also published a story on the M800, didn’t receive a C&D letter. Is Samsung just going after the little guy? For the record, Tsai says he has never had a C&D letter sent to him before. Perhaps it should be regarded as a rite of passage in the blogging world. Or maybe Samsung is just trying to develop the same love/hate relationship with bloggers that has worked so well for Apple.

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