August 2003

Greg Dyke, director general of the BBC, has a vision. In a speech he gave this Sunday at the Edinburgh International TV Festival he described his plans for how to leverage the huge BBC media library — give it away.

Looking ahead, let me give you one example of the kind of thing the BBC will be able to do in the future.

The BBC probably has the best television library in the world.

For many years we have had an obligation to make our archive available to the public, it was even in the terms of the last charter.

But what have we done about it?

Well, you all know the problem.

Up until now, this huge resource has remained locked up, inaccessible to the public because there hasn’t been an effective mechanism for distribution.

But the digital revolution and broadband are changing all that.

For the first time, there is an easy and affordable way of making this treasure trove of BBC content available to all.

Let me explain with an easy example.

Just imagine your child comes home from school with homework to make a presentation to the class on lions, or dinosaurs, or Argentina or on the industrial revolution.

He or she goes to the nearest broadband connection – in the library, the school or even at home – and logs onto the BBC library.

They search for real moving pictures which would turn their project into an exciting multi-media presentation.

They download them and, hey presto, they are able to use the BBC material in their presentation for free.

Now that is a dream which we will soon be able to turn into reality.

We intend to allow parts of our programmes, where we own the rights, to be available to anyone in the UK to download so long as they don’t use them for commercial purposes.

Under a simple licensing system, we will allow users to adapt BBC content for their own use.

We are calling this the BBC Creative Archive.

When complete, the BBC will have taken a massive step forward in opening our content to all – be they young or old, rich or poor.

But then it’s not really our content – the people of Britain have paid for it and our role should be to help them use it.

The vision and even the project name sounds like a cross between the Creative Commons project, chaired by Lawrence Lessig, and the Internet Archive founded by Brewster Kahle. No surprise then that Slate reports the BBC talked to both Lessig and Kahle before making their plans. In a blog comment, Kahle also acknowledged the visit: “Yes, the BBC crew was brought to the Archive by Larry Lessig and we showed how inexpensive it can be and how we have dealt with the ego’s and restrictions issues that always come up. I dont know what role we played, but their decision is fantastic and hopefully trendsetting… thank you bbc.”

There are a lot of details that haven’t been announced yet. For example, it’s not clear how much of the BBC library the BBC owns free and clear, or at least freely enough that they can redistribute under a new kind of license. Then there’s the inevitable argument from commercial interests that the BBC shouldn’t be allowed to compete with their own online distribution. This kind of argument will probably hold less sway in the U.K. than it would here in the U.S., however, as the British are already comfortable with the idea of a strong government-sponsored media.

There are lots of reasons this is a great move on the part of the BBC. First and most important, the Internet has brought down distribution costs to the point that, as far as gifts to humanity go, this has a lot of bang for the buck. Second, BBC shows are paid for by fees charged to UK television owners, so there’s a good argument that the library is already owned by the British TV-watching public. These are reason enough, but I like to think there’s even an argument that it is in the BBC’s self-interest to share with free-loading yanks like myself. As Dyke says in his speech, Britain’s television reflects its culture, tastes and values. That kind of export can have far-reaching secondary benefits for a nation, from increased tourism to more desire for British goods. Just think of what a great marketing tool Hollywood has been for Levis Jeans. By making BBC News, BBC documentaries or even Absolutely Fabulous easily available to the world at large the British culture may find real economic returns. As The Guardian put it, “if the BBC doesn’t get its media out to as many people as possible, it’s failing its charter requirements.”

Sidenote: It took me a few days to blog about this, and yet it still hasn’t hit the U.S. press. Aside from the Slate article, Google News is turning up almost no coverage outside of the UK press and the blogs. I try to stay away from conspiracy theories (really, I do) but I can’t help but wonder if the silence has anything to do with the battle being raged between the BBC and Rupert Murdoch, or the fact that Murdoch’s media empire stands to lose the most if things like this start to catch on? Why is this a non-story on this side of the pond?

[UPDATE 9/11/2003: Lawrence Lessig has an article in the Financial Times about the BBC Creative Archive.]

References

• Richard Dunn Memorial Lecture (Greg Dyke’s speech) (Greg Dyke, BBC, 24 August 2003)
• Taped at the BBC: Can the Beeb put its entire archive on the Web?
• Auntie’s digital revelation (The Guardian, 28 August 2003)
• Lawrence Lessig: The BBC’s lessons for America (Lawrence Lessig, Financial Times, 8 September 2003)

The California Supreme Court ruled today that trade secret laws can trump first amendment protections, overturning a previous Court of Appeals ruling. The case involves an injunction against Andrew Bunner, a San Francisco man who posted the DeCSS DVD encryption-crack code on his Web site. The injunction, which required Bunner to remove the code, was thrown out by the Court of Appeals on First Amendment grounds. The decision is quite narrow, essentially saying “the First Amendment does not categorically prohibit preliminary injunctions to enjoin the publication of trade secrets” and sends the case back to the Court of Appeals to re-examine the facts of the case.

I’ve read the decision, but rather than subject you to my legal ignorance I’ll defer to people in the know. First, Eugene Volokh blogs some legal concerns about the decision, saying that the court failed to explain how it determines that some speech is a matter of “private concern” (which gets less protection than something of public concern) and why it’s proper for the court to make this decision. He also questions their application of case law, especially as it relates to whether there were alternative channels to express the same speech (Justice Moreno makes a similar point in his concurring opinion).

As to how the case will wind up, Dan Gillmor posts this little gem at his blog:

I’ve had a note from a lawyer involved in the case, Tom Moore of Tomlinson Zisko in Palo Alto. He makes some interesting points. Here’s what he says:

I’m one of Andrew Bunner’s lawyers. While today’s Mercury News Internet article is true as far as it goes, it misses the fun part entirely.

The decision is a triumph of politics over logic. When you read the decision, you can follow the logic: (1) Software implicates the First Amendment; (2) trade secrets law implicates the First Amendment; (3) the proper level of scrutiny is intermediate First Amendment scrutiny; and (4) assuming that everything in the trial court’s order is supported factually, the order survives that level of scrutiny. Then you see where politics comes into play: The next logical step should have been for the Cal. Supreme Court to review the record independently. Instead, the Court sent the case back to the Court of Appeals to review the record to see if the facts were there. It’s not as if the Court could not review the record. Justice Moreno did it and concluded: “the DVD Copy Control Association’s… trade secret claim against Bunner is patently without merit.”

So, the Court did the politically safe thing by dodging the actual facts.

Those of us who work on Mr. Bunner’s behalf are more entertained than disappointed. The Court has given us a lot to work with. Indeed, the more significant decision in this case was the Cal. Supreme Court’s earlier decision, Pavlovich v. Superior Court. In that decision, the Court held that the injunction does not extend into Texas. That means that CSS and DeCSS is a secret in California only. Eventually, the public nature of DeCSS will come to the fore.

The precedents set in this case may be important, but as far as DeCSS is concerned this is all shutting the barn door after the horses have already bolted, caught a steamer and are enjoying their vacation in Tahiti. And I have the t-shirt to prove it.

References

• Court: Trade secrets top free speech in DVD crack case (Associated Press, 25 August 2003)
• DVD Copy Control Association, Inc. v. Andrew Bunner (Supreme Court of California, 25 August 2003)
• Trade Secrets and the First Amendment (Eugene Volokh, The Volokh Conspiracy, 25 August 2003)
• California Court Says No Web Posting of Trade Secrets (Dan Gillmor, Dan Gillmor’s eJournal, 25 August 2003)
• Pavlovich Court Opinion (EFF archive site, 25 November 2002)

Back in July, a group of 68 economists, scientists, industry representatives, academics, open-source advocates, consumer advocates and librarians proposed that the World Intellectual Property Organization (WIPO) host a meeting on the use of open collaborative development models. Examples described in the proposal include IETF standards, open-source software such as Apache and Apple’s Darwin OS, the Human Genome Project and open academic journals, among others. The WIPO’s initial response was quite favorable. Dr. Francis Gurry, WIPO Assistant Director and Legal Counsel, was quoted by Nature Magazine as saying “The use of open and collaborative development models for research and innovation is a very important and interesting development… The director-general looks forward with enthusiasm to taking up the invitation to organize a conference to explore the scope and application of these models.”

Needless to say, business interests like Microsoft saw such high-profile acceptance of open source as a threat, and immediately lobbied to have the idea squashed. The Washington Post and National Journal’s Technology Daily report that Lois Boland, the U.S. Patent and Trademark Office Acting Director of International Relations, dismissed the meeting as out of the WIPO’s area, saying the organization is “clearly limited to the protection of intellectual property.” “To have a meeting whose primary objective is to waive or remove those protections seems to go against the mission,” Boland told National Journal. She argued specifically against the discussion of open-source models, claiming that open-source software is not protected under copyright law but only contract law, which is not in the domain of WIPO. She also protested the manner in which the meeting was organized, saying WIPO’s agenda should be driven by member nations and the idea came from outside the organization. Under increasing pressure, WIPO canceled the meeting, saying the polarized political debate made the possibility of international policy discussion “increasingly remote.”

Lawrence Lessig’s blog blasts Boland, saying “If Lois Boland said this, then she should be asked to resign. The level of ignorance built into that statement is astonishing, and the idea that a government official of her level would be so ignorant is an embarrassment.” Personally I think Lessig is missing the broader picture here, or perhaps he is just not cynical enough. Rather than ignorance, Boland is simply showing unusual candor in her statements. Her position is that WIPO should promote international IP laws that support the current content industry, regardless of how that affects new upstart industries, national productivity, the economy or other important concerns. In the words of The Economist, she is being pro-business, but not pro-market. I agree with Lessig that this is abhorrent, but given how the U.S. continues to force brand-new IP protections down the world’s collective throat it seems to be a fair description of current U.S. policy.

The issues described in the proposal to the WIPO are not going to go away, and will eventually need to be addressed with or without the involvement of WIPO. As Ed Black, president of the Computer and Communications Industry Association, said on hearing the meeting was canceled: “Does this indicate that WIPO is abdicating authority and responsibility for these issues, including open source for the future? If so, we will all live by that, but then so must they. They should step up the plate or step aside. … It is inexplicable that they would shut the door on what are clearly important issues.”

References

• Letter to WIPO Director General Kamil Idris (7 July 2003)
• The Quiet War Over Open-Source (Jonathan Krim, Washington Post, 21 August 2003)
• U.S. Official Opposes ‘Open Source’ Talks At WIPO (William New, National Journal’s Technology Daily, 19 August 2003, requires subscription, but see this copy)
• The Extremists in Power (Lawrence Lessig, Lessig Blog, 22 August 2003)
• Pro-market, not pro-business: Governments should keep their distance from businesses and their bosses (Bill Emmott, The Economist, 26 June 2003, subscription required but see this copy)