Changing this site’s tagline

Previously, my site tagline was “News, technology, life, and more.”

As of today, it is now “Technology, law, life, and more.”

When I first started this blog in 2008, I labelled it “A blog discussing current events, news, politics, technology, law and more.” Even then, as a high schooler, I was interested in the law—and in the intersection of law and technology.

I distanced myself from law for a while, enticed by opportunities in engineering and medicine, right around the time I was applying to university and completing my first year of undergrad. Mirroring this stage of my life, I removed the keywords “politics” and “law”. I blogged about healthcare-related issues.

As I now decide between two fantastic law schools to attend next year, I’ve realized that my entire path has been leading me to this intersection of law & technology. But no matter where I go, I will always be a technologist first; the order of words in “Technology, law, life, and more” reflects that (and the deliberate Oxford comma).

It was time to update my blog to publicly acknowledge my choice of path in life—indeed, my return to my true passions.

How should Internet regulation of content work?

I first published the following query in a closed discussion forum for CIS 125/LAW 613 (Technology & Policy) at Penn Law. It is reposted here with minor edits.

Understanding the layers of the Internet (TCP/IP, etc) helps us to think about Internet governance in terms of allocating scarce resources, such as IP addresses and domain names. There is another layer to regulating the Internet that has little to do with scarcity or technical concerns: content on the World Wide Web. While people around the world effectively must agree to the same technical standards and the same mechanisms of allocating scarce resources in order for the Internet to function, there seems to be disagreement on which laws relating to speech and content apply, the geographic boundaries (if any) within which they apply, and to what extent foreign entities must comply. These concerns are obvious when we talk about the “Great Firewall of China”, highlighted by Google’s pull-out from mainland China, but less so evident when talking about countries that don’t use technical measures to censor citizens’ Web access.

This week, the issue became topical when Russia’s media/telecom regulator clarified existing rules on use of an individual’s image, seeming to outlaw certain forms of the Internet phenomenon known as memes.[1] The clarification came on the heels of a Russian court ruling in favour of a singer whose likeness was used without his permission in various Internet memes, some of which were unflattering. According to the Roskomnadzor—the agency that issued the clarification—as reported by the Washington Post, it is illegal in Russia to depict a public figure in a way that is unrelated to their “personality”, whatever that should mean. As expected, American media quickly seized on this act as part of a broader effort to control dialogue on the Web, at least within the Web as seen in Russia; noncompliance with the agency’s rules can result in a website being blacklisted in all of Russia.[2]

Setting aside any immediate visceral reaction that categorizes this as censorship, we might pause to consider Roskomnadzor’s justification, which pointed to the offence to celebrities’ “honor, dignity and business.”[3] But this is not some novel argument to protect celebrities at the expense of open expression; after all, even US law, which is weaker than European regimes that acknowledge a dignitary right in privacy, protects one’s likeness and privacy to some extent in tort, for very similar reasons.[4] And even if we disagree with the application of this principle in the agency’s rule, protecting individuals’ privacy and identity is still a legitimate state interest.

The real question, I think, is not whether Russia’s rule accomplishes the right balance of priorities, between privacy/control-of-likeness and open expression. After all, the extent to which the rule can even be enforced is dubious. (It would be a waste of resources for the Russian government to go after every meme of Putin on horseback.)

The much more interesting question for us is, to what extent should geopolitical nations be able to control content on the global Web according to their own sovereign laws? Moreover, given the borderless (by default) accessibility of websites and the diverse origins of Web publishers, is it reasonable to burden companies across the world with the task and cost of complying with a patchwork of nation-by-nation rules and judicial orders lest they allow their site to go dark in Pakistan or Russia or China?

In other contexts, like inconsistent cybersecurity laws across US states, companies have found it easiest to follow the strictest set of rules, hence simplifying their task. Maybe an image host like 9gag, catering to meme-makers, would find it technically easiest to comply with these inconsistent rules by deleting content whenever any nation complains. But then free speech everywhere is constrained to the narrowest rules among jurisdictions, so this is an unacceptable outcome. What is the alternative? Does the company have to add technical complexity to its systems to block Russian visitors only from accessing a picture of Putin? Isn’t this option economically inefficient?

Looking to a historical example, even a company that wants to stand up for human rights and free speech principles might find a weighty cost of defiance. In 2010, Google withdrew from operating the mainland Chinese edition of its search engine so as to relieve itself of the burden of obeying mainland Chinese regulations.[5] Reportedly frustrated with complying with strict censorship, and probably having small market share in the shadow of China’s Baidu, Google decided to redirect all mainland Chinese visitors to its Hong Kong edition, which operates under more lax rules. The cost of doing so? Losing relevance in the Chinese market.[6]

Many other companies lacking Google’s backbone and cash would likely roll over when requested to avoid losing their audience. Does this give too much influence to countries like the United States, China, and the UK, over what citizens can see on the Web? Is the Web any better under the rules of the superpowers than under the patchwork of nation-by-nation restrictions on free speech?

Footnotes

Footnotes
1 Megan Geuss, Russia’s Internet censor reminds citizens that some memes are illegal, Ars Technica (Apr. 11, 2015), http://arstechnica.com/tech-policy/2015/04/russias-internet-censor-reminds-citizens-that-some-memes-are-illegal/; Caitlin Dewey, Russia just made a ton of Internet memes illegal, Wash. Post Intersect Blog (Apr. 10, 2015), http://www.washingtonpost.com/news/the-intersect/wp/2015/04/10/russia-just-made-a-ton-of-internet-memes-illegal/.
2 See Caitlin Dewey, supra note 1.
3 Id.
4 Restatement (Second) of Torts § 652A-E (1977).
5 Jemima Kiss, Roundup: Google pulls out of China, Guardian (Mar. 23, 2010), http://www.theguardian.com/media/pda/2010/mar/23/google-china.
6 See Kaylene Hong, Google’s steady decline in China continues, now ranked fifth with just 2% of search traffic, Next Web (Jul. 5, 2013), http://thenextweb.com/asia/2013/07/05/googles-steady-decline-in-china-continues-now-ranked-fifth-with-just-2-of-search-traffic/.

Town of Greece v. Galloway

I’m in the middle of final exams, and I really don’t have the time for this, but I was blown away by the decision in Town of Greece v. Galloway, 572 US __ (2014).

As Justice Kagan wrote in her dissent,

“A person goes to court, to the polls, to a naturalization ceremony—and a government official or his handpicked minister asks her, as the first order of official business, to stand and pray with others in a way conflicting with her own religious beliefs. Perhaps she feels sufficient pressure to go along—to rise, bow her head, and join in whatever others are saying: After all, she wants, very badly, what the judge or poll worker or immigration official has to offer. Or perhaps she is made of stronger mettle, and she opts not to participate in what she does not believe—indeed, what would, for her, be something like blasphemy. She then must make known her dissent from the common religious view, and place herself apart from other citizens, as well as from the officials responsible for the invocations. And so a civic function of some kind brings religious differences to the fore: That public proceeding becomes (whether intentionally or not) an instrument for dividing her from adherents to the community’s majority religion, and for altering the very nature of her relationship with her government.”

Unsurprisingly, this case was again decided on a 5-4 split, with the conservative justices in the majority. As the New York Times reports, “For Justices, Free Speech Often Means ‘Speech I Agree With’”.

Jefferson on intellectual property

“Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.”

VI Writings of Thomas Jefferson, at 180—181 (Washington ed.), as quoted in Graham v. John Deere Co., 383 U.S. 1 (1966). Emphasis mine.

Tracking the #thesiswp matter: Part 2

« Read how it all started in Part 1.

Synopsis

While the initial controversy about the Thesis-not-being-under-GPL issue was focused on themes and derivative works, an unclear area that probably needs to be resolved in court, it seems there is a far sounder reason why Thesis has to be released under the GPL: it blatantly copies WordPress code.

It all started with this tweet by Andy Peatling (@apeatling):

Not a clear GPL violation, because it’s extending WordPress classes, which, in effect, copies WordPress functionality into Thesis.

Code analyses

Andrew Nacin (@nacin) started going through the code of Thesis and started to make some encouraging/discouraging tweets:

I just found a line of code I wrote for #WordPress, but in #thesiswp. Funny, when I wrote it, it was under the GPL. #

And then, an initially uncorroborated claim:

This is really pissing me off. I’m up to a few hundred lines directly lifted from WP. A part of me is crushed. #thesiswp #

And then Drew Blas (@drewblas) did an automated analysis (like I suggested 🙂 ) and found clear evidence of copied WordPress code:

Code analysis of WordPress and Thesis
Clear evidence of GPL code in Thesis

Impact

At this point, it seems clear: Thesis isn’t merely building on top of WordPress, it literally incorporates WordPress code through copy-paste.

That makes Chris Pearson liable to fulfill his obligations under the GPL and distribute GPL derivatives under the GPL.

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Most damning

Andrew Nacin eventually found this in Thesis:

* This function is mostly copy pasta from WP (wp-includes/media.php),
* but with minor alteration to play more nicely with our styling.

GPL test case? YES.

Chris Pearson indicated during his interview that he is fundamentally opposed to the GPL and will absolutely refuse to license Thesis under the GPL. By the end of the dialogue, he was practically saying “sue me”.

Matt Mullenweg responded:

Matt: Are you saying you want to be a test case for the GPL? You want us to sue you? I mean, that would break my heart. I’d rather you be part of the family.

While the themes = derivatives basis might have been shaky for a legal trial, I think the fact that there’s copied code clearly indicates one outcome in the end, in favour of the GPL.

Temporarily back to the case for themes = derivatives

WordPress isn’t the first community to issue the directive that extensions (themes, plugins) are derivatives. Joomla! did so a few years ago (I recall because I used Joomla! before finding WordPress) and Drupal makes it extremely clear.

If this matter can’t be determined by the GPL’s applicability to themes/plugins, maybe WordPress should just re-license, starting with a future version, with GPLv3 and add a specific requirement that themes/plugins are licensed under GPL.

Tracking the #thesiswp matter: Part 1

Twitter erupted into argument last night in a fairly important battle for open source, the GPL, and WordPress. At the centre of the issue is a theme framework called Thesis which plugs into WordPress, sold with a restrictive license that does not permit redistribution.

Background

To provide some background, WordPress is a blogging platform licensed under the GPLv2, which specifically forces all copies of a work licensed under GPL, as well as derivative works, to be licensed under the GPL:

2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:

b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.

The Free Software Foundation explicitly addresses plugins in its FAQ, making it clear that plugins that share data structures with the main program and make function calls to each other are derivative works to which the GPL also applies.

Themes were an uncertain matter prior to last year’s legal opinion from the Software Freedom Law Center, because these works from third parties certainly build on top of the WordPress platform, but often extend it with original artwork and programming. The analysis states clearly that:

… it is our opinion that the themes … contain elements that are derivative works of the WordPress software as well as elements that are potentially separate works. Specifically, the CSS files and material contained in the images directory of the “default” theme are works separate from the WordPress code. On the other hand, the PHP and HTML code that is intermingled with and operated on by PHP the code derives from the WordPress code.

Though almost all of the other theme foundries have adopted the GPL license for their PHP code, Chris Pearson stands nearly alone in asserting the GPL’s viral clause is inapplicable to him.

Initial controversy

On a live webcast with both Chris Pearson, the developer of Thesis, and Matt Mullenweg, the founder of Automattic and the WordPress project, Chris expressed his personal belief that the viral nature of the GPL goes against his personal freedoms and rights as a developer:

Chris: One, it would require me to make a concession about something that I don’t think that I need to concede to. Why should I change? I’m protected right now. My work is protected, which it should naturally be. I want to retain that right. If I go GPL then I am ceding that right. The number one issue for me is the personal concession that I would be making. Not of any real impact to my business. I don’t want to make that personal concession, because I don’t have to. Okay?

Note: it is possible, in terms of the GPL’s legality, that Chris never had the right to prevent users from redistributing his code; if the GPL applies, a developer cannot restrict redistribution.

Matt, on the other hand, debates to defend the applicability of the GPL to themes and plugins:

Matt: … If you build a module for Drupal or a module for WordPress or a theme for WordPress or anything like that, the license says that you do have to follow the GPL. I think that it’s just a matter of choosing the platform. If you disagree with the GPL, just use a platform that doesn’t have the GPL.

I listened to all of the long back-and-forth encounter, which was interesting until Chris began to assert his importance in the community:

Chris: I’ve done great things with WordPress since 2006. I have been arguably one of the top three most important figures in the history of WordPress. You, Mark Jaquith, and myself, are the three people that I am talking about.

Wait, what? A developer whose theme accounts for such a small fraction of WordPress’s usage puts himself in the top three figures in WordPress history? Jane Wells had a similar encounter with his ego.

» See the top 10 figures in WordPress history.

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Analysis of this part of the controversy

The crux of the controversy is summarized by Chris’s sentences here:

Chris: I think the license, the GPL, is at odds with how I want to distribute my software and what I want it to be. I don’t think that it necessarily should inherit WordPress’ license when over 99% of the code within Thesis is Thesis code based on the actual process of building a website.

As someone who also contributes to open source software, I can certainly understand his sentiments on the ‘infectious’ nature of the GPL, which forces derivatives to inherit the GPL. It’s pretty hard to release projects under even more permissive licenses (for example, the Apache License), or in Chris’s case, extremely restrictive proprietary licenses, when so many open source projects enforce the GPL.

That really is, though, the purpose of the GPL: to keep open source open by prohibiting its inclusion in fully closed-source or proprietary (and restrictively-distributed) projects.

Are themes derivative works?

A lot of the open source advocates and lawyers seem to think so. After all, themes do things like:

[php]<?php if ( get_comment_pages_count() > 1 && get_option( ‘page_comments’ ) ) : // Are there comments to navigate through? ?>[/php]

and

[php]<?php if ( $wp_query->max_num_pages > 1 ) : ?>[/php]

which show clear integration with WordPress core functionality, much like a program in C would use the MySQL library with

[cpp]mysql_real_connect()[/cpp]

Granted, the MySQL developers explicitly allow derivatives to use non-GPL licenses even though MySQL is GPL, through an additional license exception. The reason such an exception is necessary is that they understood that works which link to library code are derivatives.

The biggest problem is that the GPL was written with compiled code in mind, where derivatives would have to bundle the libraries (e.g. DLLs or SOs) in their releases. It’s sort of unclear for interpreted languages like PHP; is it an indication of derivation if one piece of code makes a function call to another?

It’s a bit unfortunate WordPress wasn’t licensed under GPLv3, because version 3 is much clearer about what it means to make a “modified version” or a work “based on” another work. It would also make for a better court case.

Caleb Jenkins (@CalebJenkins) iterates an interesting point: dependent != derivative. While I can see this being an interesting legal argument, it would have a lot of implications for open source in general, completely contrary to the way things have been operating.

If using a dependency is not being a derivative of that work, then it is conceivable that one can produce a C application which links to a GPL library (for example, the FOSS-licensed version of the MySQL client library) without bundling it and is released commercially under a closed-source, restrictive license. It is conceivable that a PHP program might require() WordPress to use its functionality, but simply not bundle WordPress, and would then avoid classification as a derivative.

I’m afraid I can’t entirely lend my support to that argument.

People have argued that making function calls to WordPress is akin to making system calls to the underlying operating system. Unfortunately, only GPLv3 is clear about distinguishing the system and compiler libraries from other general code; of course it doesn’t make sense that every application on the GPL Linux kernel must be open source. It’s a valid argument.

However, I agree more completely with Matt’s contention that a dependency = derivation when it gets to the point that a WordPress theme without WordPress will not work (just try loading any theme’s index.php in a browser) while WordPress without any themes will still function — it won’t show anything, but its backend is still fully functional.

Chris Pearson is wrong when he says “I think that what I’ve done stands alone outside of WordPress completely.” Interestingly, read the context of this quote:

Chris: How is that? I think that what I’ve done stands alone outside of WordPress completely. Why should I respect that? It’s not that I don’t respect WordPress. I do. I only build on WordPress and push people in its direction…

» Now here: Part 2 of Tracking the #thesiswp matter.

» Also read: Why WordPress Themes are Derivative of WordPress by Mark Jaquith (@markjaquith), a lead developer.

What a scam: Domain Registry of Canada

I’ve been receiving these letters every single year a few months before any one of my domains is set to expire.

This company is clearly harvesting WHOIS data in violation of their ICANN agreement to send official-looking “expiration notices” to domain owners, many of whom unwittingly send in payment, unaware that the “Domain Registry of Canada” is merely a company attempting the entirely unethical practice of domain slamming.

Since 2001, this company has been soliciting domain transfers under the guise of renewing the registration with the existing registrar. Of course, their prices are ridiculously expensive — $40 per year for a domain name — and that’s part of why I didn’t fall for it, since I operate my own domain registrar and I know the value of domain registration services aren’t that high.

An early example of the domain letters from 2002 is published online.

In 2003, the Federal Trade Commission settled with the sister company “Domain Registry of America” to stop their misleading business practices. The way they decided to comply was by adding a little blurb that blended into the text, one that few people seeing an official-looking letter would read.

They’ve changed it a bit now, to uppercase and bold text, but the premise of their operations is still the same.

The letter comes in an envelope that almost looks like it's from the Government of Canada
The letter comes in an envelope that almost looks like it’s from the Government of Canada; my address is redacted

The envelope is misleading. Indeed, the colour and layout of the envelope nearly exactly matches that of an official Canadian government letter, except for the return address in the top-left. And there they’ve neatly placed a maple leaf, knowing that it is associated with the country, and by extension, the government.

Even the NAME is misleading.

The letter has been changed in recent years, but still carries the same layout that I recognize from as early as 2005. The prices are ridiculous; a .net domain isn’t worth $40/year. (I know; I was selling them for $7.99 last month.)

The letter is sure to make inexperienced domain owners panic.
The letter is sure to make inexperienced domain owners panic.

That letter just irritates me. Sentences like “take advantage of our best savings” when you actually pay $30 more, misleading phrases like “You must renew your domain name to retain exclusive rights”, and worst of all:

“Failure to renew your domain name by the expiration date may result in a loss of your online identity making it difficult for your customers and friends to locate you on the Web.”

It’s rare for me to be this angry. But it’s a ripoff.