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Photographer Appeals Ruling Saying It's Not Infringement To Have Vaguely Similar Photos
Thankfully, the judge made pretty quick work of it, completely slamming Gordon for thinking McGinley's photos infringed, and pointing out that: the dictates of good eyes and common sense lead inexorably to the conclusion that there is no substantial similarity between Plaintiff’s works and the allegedly infringing compositions Throughout the ruling, the judge eviscerates Gordon's arguments, calling her claims "infirm." You might think that Gordon would get the hint. Instead, she's appealing the ruling and insisting that it's the judge who doesn't understand copyright law. As ArtInfo quotes and summarizes from the appeal: "The District Court improperly dismissed my law suit because it did not apply the copyright law correctly," it reads, adding that the previous decision "exhibited a lack of intrinsic comprehension of art, and its expression or intended expression." Gordon claims that the court ignored the copyrightable elements of her work and that its judgement rested on the content rather than the stylistic decisions of her photographs: "the District Court’s focus on the similarity in subject matter, which was only part of my artistic choice, was a great error." Of course, if you read the original court ruling, nothing could be further from the truth. The ruling talks about the "artistic choice" argument too, and found it lacking. Hopefully, the appeals court makes quick work of this as well. As Artinfo notes, McGinley's lawyers certainly don't seem particularly worried.
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What The Curebit Saga Teaches Us About Copyright, Plagiarism And Reputation
The startup Curebit brought something of a firestorm down on its head recently. Here's how VentureBeat broke the story: Curebit, a Y Combinator startup that just closed a round of funding from Dave McClure’s 500 Startups fund, has been caught red-handed stealing HTML code, images, and the like from 37signals. Leaving aside the usual point that Curebit's employees almost certainly didn't break into 37signal's office and physically remove all the HTML code and images in the way that the word "stealing" suggests, here's how Curebit tried to justify its actions with the following rather weak excuse: We had a different homepage, were a/b testing different pages, came across the 37signals post and were like 'wow we should see how that converts!' We are big fans of rails and what 37signals is doing and did not really think through the implications of what we were doing. We just kind of thought about it as a fun test to run. Unsurprisingly, that didn't convince many people, and eventually, Curebit apologized -- sort of: Recently we launched a site with several pages copied from 37signals’ Highrise. We did more than take inspiration from their design – we actually used html & css code, and hotlinked to images on their site. We apologize to David and 37signals for ripping off their work. It was stupid, lazy, and disrespectful of their creative efforts. Curebit still doesn't seem to be admitting that what it did was wrong, although most people would say that it was. But there is an interesting discussion to be had about what exactly it did wrong.
Paul Carr, for example, not only believes that it was copyright infringement pure and simple, he suggests there's some deep hypocrisy flying around the developer community here:
The prevailing view, outside of Hollywood, seems to be that IP creators need to accept that copying is here to stay and that criminalising a “victimless” activity is stupid. Make it easy for us to pay for stuff and we won’t have to steal it.
And yet when the victim isn’t a big evil Hollywood mogul (or one of the tens of thousands of people who work for him) but one of our own… well, then IP thieves should be dragged through the streets until they tearfully apologise. What’s the difference?
Well, one difference is that most of the things that people copy and share are simply enjoyed in private, not displayed on a company's public web site for people to see and admire. That means that there is an element of passing off here – plagiarism, in other words. Carr addresses the possibility that the anger provoked by Curebit's actions was down to the fact that it was plagiarism rather than simple copyright infringement:
Is it, as some argued on Twitter when I asked the question earlier, that plagiarism is different from copyright theft? No. And not least because plagiarism is copyright theft. Like most copyright theft, plagiarism doesn’t deprive the creator of their original work and is usually committed by someone who is too lazy or cheap to acquire or create something legally.
Well, Curebit's wrongdoing may well be copyright infringement and plagiarism, but the latter is still very different from the former, and Carr himself goes on to identify exactly why:
The only real difference is that in plagiarism the infringer is usually pretending to be the creator of someone else’s work.
This is the cardinal sin in a world based on reputation. If you build on somebody else's work, you must give attribution for that work, just as you must cite your source if you blog or tweet a story you have learned about from someone else.
Reputation is the glue that holds together all of the hugely-successful open collaborative software projects like Linux or Apache: there's no money involved (at least, not directly), but people are paid in terms of the respect they earn from their peers for what they do and how well they do it. Failing to acknowledge the fact that you are using their work is tantamount to disrespecting that code -- and hence the norms of the community.
That, I think, is why parts of the developer world world reacted so violently to Curebit's use of 37signal's code and images. If Curebit had admitted what it was doing up front, with full acknowledgement of the provenance of the work, and noted that it was building on 37signal's code as an act of respect, I suggest that few would have cared. The community norms would have been maintained, 37signal's reputation would have been enhanced, and its coders would have received the kudos that was rightfully theirs.
So this is not, as Carr suggests, a case of double standards on copyright infringement. The "infringement" here -- which undoubtedly exists according to the letter of the law – is irrelevant for a community that has placed sharing and collaboration at its heart. This is not about who owns what, but about who respects whom -- and shows it in the appropriate way.
Follow me @glynmoody on Twitter or identi.ca, and on Google+
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Can Facebook Really Bring About A More Peer-to-Peer, Bottom-Up World?
We have already helped more than 800 million people map out more than 100 billion connections so far, and our goal is to help this rewiring accelerate. [emphasis added]
That sounds pretty lofty, but if you recognize that Facebook provides a social networking service that hundreds of millions of people use -- but forget for a moment that it's Facebook -- it's quite a bold "social mission." And there are many examples of how the service has been used as a key tool in affecting change on everything from opposition to the Canadian DMCA to the Arab Spring. There's no doubt that the service makes it easier for people to organize in a more bottom-up way.
But, once you remember that it's Facebook we're talking about, the vision sounds more problematic. Could Facebook ever truly bring about a peer-to-peer, bottom-up network? The notion seems to be an inherent contradiction to Facebook's architecture -- as a centralized, proprietary, walled garden social networking service. Facebook may enable a more bottom-up structure, but it's a bit disingenuous for Zuckerberg to decry a monolithic, top-down structure when Facebook inserts itself as the new intermediary and gatekeeper. As a centralized, proprietary, walled garden service, Facebook is a single point for attacks, control, and surveillance, never mind controversial policies or privacy concerns. Facebook may enable a more bottom-up and peer-to-peer network compared to many things that came before, but there is something fundamentally at odds with a truly distributed solution at the core of its architecture and its DNA.
To realize the full potential of bottom-up, peer-to-peer social networking infrastructure, we need autonomous, distributed, and free network services -- the sort of vision that StatusNet/Identi.ca or Diaspora have tried to bring about. Rewiring the world to create a more bottom-up, peer-to-peer network is a bold vision for Zuckerberg to put forth -- and one that Facebook has advanced in many ways -- yet it's fundamentally at odds with the reality of Facebook as a centralized and proprietary walled garden.
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Little Ice Age: It Was Not the Sun
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