About this Author
Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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June 28, 2005

Grokster and Open Source: Will Open Source Force the Court to Confront Sony?

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Posted by Ernest Miller

What the heck does the Grokster decision mean for open source?

I suspect that we are likely to find out.

Up to now Hollywood has been satisfied in going after the commercial purveyors of P2P filesharing software. Undoubtedly, following the Grokster decision, they will continue to do so. However, that will not halt the use of P2P programs.

As the commercial systems are shut down, it is likely that users will migrate to open source P2P projects. Indeed, a switch to various open source programs, such as BitTorrent, is already well under way. If Hollywood desires to continue to stem the tide by taking action against certain programs, they will have no choice but to go after the most popular open source projects.

Vicarious liability would not seem to be much of an issue for most open source programs. They don't directly profit from (and I doubt a court would recognize reputational benefits for this purpose) illicit filesharing and I'm unaware of any that has the right and ability to control use. Standard contributory infringement would also be relatively difficult to prove on a number of levels, assuming the device met the Sony test.

But active inducement changes things, especially as the Court was rather unclear on how it was to be applied. The problem for many open source technologies that would meet the Sony test is that they receive contributions of code from a wide variety of sources. The most well-organized projects have a vetting process so that they do not incorporate copyrighted or patented code. However, how are they to vet for intention?

When you've got a large number of people working on a filesharing project, it is likely that one of them will say things that would be evidence of inducement. Furthermore, the Court spent a great deal of time emphasizing Grokster's lineage from the original bad actor Napster. That was plenty of evidence of ill intent for the Supreme Court. How might that logic be applied to the numerous progeny of Napster in the open source world?

I really don't know. There are a number of ways that a court could potentially handle it and it would be very fact-dependent, I think.

One possibility I do see, however, is that an open source project may ultimately force the Court to confront Sony directly.

In Grokster, the Court "kicked the Sony can down the road". They didn't address what it really meant and came up with an alternative theory of liability, active inducement. Active inducement seems well-suited to bringing down many commercial projects, but it could have difficulty with open source.

Although an active inducement case would be relatively easy to bring against an open source P2P project, I believe, I could also see a Court dismissing such a claim for a variety of reasons. Such a decision would be very fact-dependent, but having dismissed active inducement, the only chance to shut down a particular project would be to find that the program failed the Sony test.

Such a case would then force the Court to make a decision about the limits of Sony.

Comments (6) + TrackBacks (0) | Category: Copyright | File Sharing | Open Source

June 16, 2005

June 10, 2005

June 06, 2005

July 21, 2004

The Cathedral, the Bazaar and Art

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Posted by Ernest Miller

Today, Slate asks "Just how inventive can an anonymous group of people be" (Art Mobs)? "Collaboration is old hat," as the author says but, "until now it's been limited to a small handful of people, usually face to face. The Internet lets thousands of total strangers collaborate to produce a truly hivelike result" (I'm not sure about that "hivelike" adjective. Why would virtual collaboration be any more hivelike than collaboration face-to-face? How many people work together to make a movie? Is a movie "hivelike"?).

In any case, the article looks at some interesting experiments in internet-based collaborative art. Some produce pretty good results, others not. The article goes on to ask why, and one conclusion is that "Truly huge artistic collaboration on the Internet seems to work only if the gang has a well-defined objective." And this is different from face-to-face collaboration, how? Whenever you have a group of people trying to achieve a subjective goal, the more subjective it is, the more they're going to need direction.

Actually, I think we need to match means and goals. Some forms of collaboration suit certain types of art better than other types of art, whether that collaboration is face-to-face or anonymous. It would be more useful, I think, to distinguish which forms of collaboration are handled better face-to-face as opposed to anonymous collaboration and why.

Strangely, the article goes off on a tangent at the end:

One day, it's likely that an artist will discover the right mix, or some Web designer will invent an online engine that elegantly channels a million contributions into a single compelling artwork. So far, the closest we've yet come is with music, which, thanks to the influence of hip-hop, techno, and applications like GarageBand, is increasingly a cut-and-paste art form. [link in original]
But this sort of music isn't an example of massive collaboration, except in a very broad definition. It is an example of individuals remixing existing works, which isn't really collaborative in the sense the article had been talking about. However, if that is the definition of collaboration, than computing and networks have enabled all sorts of fantastic group collaboration (i.e., machinima, video mashups, game mods, etc.). Heck, blogs in general are an example of remixing.

This is an interesting article, but I'm not sure it has the right focus.

An aside: the article did bring one thought to mind. GNU/Linux as art. Eric S. Raymond famously described the process of open source vs. closed source as a distinction between The Cathedral and the Bazaar. However, though the process of development may be different, hasn't GNU/Linux become a cathedral of sorts? Like the great cathedrals of Europe, isn't Linux a cathedral of code, both functional and beautiful?

Comments (0) + TrackBacks (0) | Category: Culture | Open Source

March 22, 2004

Minority Languages and Open Source

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Posted by Ernest Miller

The BBC reports that Microsoft is adding support for the Welsh language to MS Windows (Microsoft works on native tongues). It is great that Microsoft is supporting language diversity. However, this diversity is being supported at Microsoft's sufferance. Should MS decide not to support a particular language, too bad, MS won't let you have access to Windows source to make the necessary changes yourself. There is no such problem with open source. If native speakers truly want to guarantee the continued existence of their minority languages, they would do well to embrace open source and commission a translated version of Linux.

Speaking of which, when will we have a Klingon Linux of Elvish Linux?

via Marginal Revolution

Comments (0) + TrackBacks (0) | Category: Culture | Open Source

March 04, 2004

Court Using Linux Hears Lawsuit Claiming Linux Infringes Copyright

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Posted by Ernest Miller

I don't post much about the ongoing SCO v. Linux lawsuits, though heaven knows there is much to discuss in the case. For incredible, indepth, precedent-setting blog coverage of these lawsuits, see the justly famous Groklaw.

Most recently, SCO has begun suing not only distributors of Linux, but users as well. In the first case brought against an end-user, SCO has sued Autozone for using Linux and thus violating SCO's copyrights (It's Autozone). All well and good, but there is something unusual about the case.

Netcraft is not involved directly in the case, it is an English company that conducts research and analysis on the internet. According to their about page, since 1995 they have been,

a respected authority on the market share of web servers, operating systems, hosting providers, ISPs, encrypted transactions, electronic commerce, scripting languages and content technologies on the internet.

Thus, it is no surprise that they would check up on what systems the court involved is running. They report that some of the computer systems for the court in charge of the SCO v. Autozone lawsuit run on Linux (Court that will hear SCO v AutoZone lawsuit itself runs Linux). Indeed,

Plaintiffs filing lawsuits must enter copies of their legal documents in Adobe PDF format in the court's Linux-based Case Management/Electronic Case Filing (CM/ECF) system, which will provide electronic updates of case information for the litigants and their lawyers.

This, I think, is a first. I have no idea if there is a precedent for this sort of thing. Here you have a court that is engaged in precisely the same conduct the plaintiff complains of. If a judge did this it would not only be an appearance of a conflict of interest, it would be a conflict of interest and clear case for recusal. What do you do when the court administration is involved? Can an entire court recuse itself? Is there any rule or precedent for this?

In related news, SCO public relations people continue their so-far successful campaign to get the world to hate them by comparing themselves to the RIAA ('We're just like the RIAA,' says SCO).

Comments (5) + TrackBacks (0) | Category: Copyright | Oddities | Open Source

February 13, 2004

Good News - MS Windows Source Code Leaked

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Posted by Ernest Miller

Ed Felten on his Freedom to Tinker blog breaks some incredibly good news - Windows 2000 and Windows NT4 source code has been leaked on the internet (Windows Source Code Leaked?). Microsoft has apparently confirmed the leak, according to the AP wirestory on (Microsoft source code leaked over Internet) Though Felten is rightfully worried that malware authors will have a field day, there are a number of positive developments that can occur because of this (in no particular order):

  • Search MS source code for evidence of theft from open source projects;
  • Search MS source code for evidence of antitrust violations ("Windows isn't finished until * won't run");
  • Reverse engineer MS souce code for greater compatibility with all sorts of open source projects;
  • Reverse engineer MS source code for Windows emulators on Linux such as WINE or Lindows (note a comment by Seth Schoen here);
  • Prove that the browser/media player/etc. can be removed from the operating system with little harm done;
  • Reverse engineer MS source code to crack DRM schemes;
  • Play with source code just because Bill Gates won't like it;

This is just a partial list, I am sure, of positive uses for the source code. Readers are kindly requested to submit more ideas.

There is also an interesting copyright question here. If I have a "license" for the executable version of MS Windows, is it a copyright violation for me to keep a backup copy of the source code? Am I violating copyright if I play with the source code at all?

Comments (2) | Category: Open Source

February 09, 2004

New MS Windows! Now with less functionality!

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Posted by Ernest Miller

Fellow Corante blogger Open Mind says it best with regard to Microsoft's new plan to reduce functionality in Windows XP in order to sell less expensive copies in Thailand (What a brilliant strategy...):

Customers should also wonder why Microsoft will be willing to cut Thai users a little slack with a less expensive version, but be unwilling to offer a "lite" version to price-sensitive customers elsewhere.

Read the whole thing.

Comments (0) | Category: Open Source

February 03, 2004

Issue Ads and Responsibility

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Posted by Ernest Miller

John Palfrey takes an interesting and brief look at CBS's decision to air non-controversial issue ads, but not controversial ones, such as the anti-Bush contest winner (Is anti-smoking not an issue?). Palfrey's intutition seems to be that there is something wrong with CBS's decision, though under existing law it is clearly constitutional. For example, Palfrey points to Marsh v. Alabama, a company-town case. Although it isn't legally on point, Palfrey seems to be making an analogy to the Super Bowl because of the game's incredible popularity. Just as it is bad policy for a company-town to restrict the pamphleteer, so it is bad policy for CBS to restrict its television commercial sales for the extremely popular Super Bowl (though Palfrey is not claiming it is unconstitutional).

I agree with Palfrey's intutition that what CBS is doing is wrong. However, I don't think the problem has anything to do with the Super Bowl (should speech be more subject to regulation because it is popular?), but with our telecommunications regulatory scheme in general. Broadcasters, cable and satellite networks have the power to discriminate because the government has given them that power. Speakers, of course, should have the right to discriminate, that is what freedom of expression is all about. However, broadcasters, cable and satellite networks are not merely speakers but distributors as well. Of critical importance is that these networks are the creation of government regulation.

As I've argued previously, creating and maintaining such distribution monopolies is precisely one of the things the First Amendment was meant to prohibit (It's Freedom of the Press, Stupid). Letting broadcasters descriminate in what they will broadcast is like letting Chevrolet build a bridge on public land and then decide what cars get to cross it, or having railroads built using eminent (I almost wrote, "public") domain and then deciding who gets to transport goods via train. Interestingly, a similar analogy is used in Marsh v. Alabama, noted above:

Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation. And, though the issue is not directly analogous to the one before us we do want to point out by way of illustration that such regulation may not result in an operation of these facilities, even by privately owned companies, which unconstitutionally interferes with and discriminates against interstate commerce. [emphasis added]

Palfrey ends his post with this:

But, leaving the Constitutionality question aside, and thinking hard about the relevant policy questions, I'm still unconvinced that CBS is wholly in the right on this one.

Palfrey is right. CBS is wrong. However, CBS is not simply wrong on "this one" but the very existence of government telecomm-regulation-created CBS is wrong in general (not to mention unconstitutional).

Comments (6) | Category: Freedom of Expression | Open Source | Telecomm

January 15, 2004

HP's Corporate Schizophrenia

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Posted by Ernest Miller

Late last week Hewlett Packard Chief Executive Carly Fiorina declared that starting this year all HP digital entertainment products will use software that respects the copyrights of artists. In other words, HP would become one of the leading proponents of DRM (HP Goes Off the Rails).

This week, Fiorina is celebrating the fact that HP raked in the bucks selling Linux-related products and services in 2003, according to a C|Net News article (Linux brings in $2.5 billion for HP). HP is selling Linux-based collections of hardware and software, as well as thin clients that plug into central Linux servers. Revenues for Linux-related products and services in 2003 increased $500 million or 25% over 2002. Sounds like a nice, healthy, growing business to be in.

Apparently, not a business HP really wants to see take off, however. Someone at HP should inform Fiorina that DRM and Linux don't work too well together.

Here's an idea Fiorina: the heck with sucking up to Hollywood; start selling Linux-based digital entertainment products to consumers. Who wouldn't want a central Linux server that sends multimedia to a bunch of thin clients throughout the house?

Comments (2) + TrackBacks (0) | Category: Digital Rights Management | News | Open Source

December 18, 2003

OpenOffice in More Government Shops

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Posted by Ernest Miller

C|Net News reports that more government organizations, this time in Israel and Texas, are adopting or testing open source desktop software, such as OpenOffice, as an alternative to Microsoft Office software (OpenOffice makes government inroads). This is great news. However, I'm not nearly as concerned that the government uses Microsoft software as that the government organizations are not committed to open formats. Sure, the government should be able to use Microsoft Office software if it is more efficient, but the government should publish and receive documents in open formats. I shouldn't need proprietary software to open a government document properly. I applaud the switch to open source, but I would cheer a firm commitment to open formats.

Comments (0) + TrackBacks (0) | Category: Open Source | Open Standards

November 20, 2003

Federal Courts Adopt Linux Backend

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Posted by Ernest Miller

I haven't been following court technology very closely lately (mostly through frustration with their resistance to truly open court publishing), but this story caught my eye. The San Antonio Business Journal reports that PEC Solutions (motto: "Web-enabling Government") has received a contract from the Administrative Office of the US Courts to switch the Federal Judiciary's IT infrastructure to Linux (U.S. Courts hires vendor to migrate to Linux/Intel platform). Read the press release: PEC Solutions to Migrate Federal Judiciary’s National IT Infrastructure to Linux/Intel Platform. From the press release:

PEC will support the transition of the Judiciary’s mission-sensitive applications, including case management, finance and accounting, probation and pretrial services, and case-tracking management systems to the Linux standard. PEC will provide Linux operating system and applications technical support and assistance, including planning, advice and recommendations, help desk support, installation and testing support, and full problem resolution.

Interesting. I wonder if and when the courts will begin playing with a GNU/Linux-based desktop.

Comments (0) + TrackBacks (0) | Category: Open Source

November 08, 2003

Linux Desktop in the Workplace

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Posted by Ernest Miller

First, the CEO of Red Hat says you should stick with Windows for the desktop, in this story (Red Hat CEO says you should buy Windows). On the other hand C|Net News is reporting that IBM will announce on Monday support for the Linux desktop(IBM warms to desktop Linux). Actually, the two positions are much closer than I've made them seem. Neither IBM or Red Hat is proposing Linux for the consumer desktop, but rather for the business or enterprise-oriented desktop. This is a significant move. Microsoft gained a lot of momentum from the ease with which people could switch between home and business PCs running Windows. If the Linux desktop does gain traction in the workplace, it won't be long before it makes significant moves into the home.

Comments (0) + TrackBacks (0) | Category: Open Source

November 07, 2003

The Grinch Who Stole Linux

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Posted by Ernest Miller

I've been following but not posting on the SCO v. World copyright battle over Linux. However, this post from Groklaw is definitely worth passing on (The Grinch Who Stole Linux).

By the way, parody or satire?

Comments (0) + TrackBacks (0) | Category: Oddities | Open Source

November 06, 2003

Linux Boxes via Amazon only $199

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Posted by Ernest Miller

C|Net News reports that Amazon is now selling Linare Linux PCs for $199 (Desktop PC company begins Amazon deal). You can check out the PC here on Amazon here: Linare PC (1.3-GHz AMD Duron, 128 MB RAM, 30 GB Hard Drive, CD-ROM). While Walmart has been selling similar systems (Linux OS PCs) for some time, Walmart is not usually a store you associate with PCs.

One small problem with the Amazon technical specs page which I hope they change soon:

Special Features: Licence [sic] Free Operating System [emphasis in original]

RMS might take offense to calling something under the GNU license "license free."

Comments (0) + TrackBacks (0) | Category: Open Source | Tools

November 05, 2003

Broadcast Flag Loophole Watch - Manufacture for Export

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Posted by Ernest Miller

Okay, so I've been reading the FCC's Broadcast Flag requirements and I've noticed what appear to be a couple of potential loopholes for those interested in maintaining consumer rights past the July 1, 2005 deadline (Report and Order and Further Notice of Proposed Rulemaking). According to the FCC's new report, it is illegal for manufacturers and distributers in the US to provide non-DRM'd equipment (effective July 1, 2005) to US citizens, but perfectly legal to manufacture the devices here and sell or distribute them overseas:

§ 73.9009 Manufacture for Exportation.
The requirements of this subpart do not apply to Demodulators, Covered Demodulator Products or Peripheral TSP Products manufactured in the United States solely for export.

The FCC, apparently, believes that foreigners won't be pirates, but US citizens and residents will. Either that, or the FCC believes that foreign residents deserve to have media functionality that US citzens don't.


This reminds me of the old cryptographic requirements, only in reverse. In the earlier days of the web, there were a number of websites that provided cryptographic programs for download, as long as the downloaders were in the US, since it was illegal to export the programs, but not to distribute them domestically. The websites offering the programs for download made some attempt to block people from downloading the programs overseas.

Here, the situation is reversed. It is illegal to distribute domestically, but not to export. Thus, you can write an open source demodulator without DRM, as long as it is solely for export. I imagine you can make the program downloadable, as long as you make some effort to ensure people can't download the program from within the US.

This is a significant improvement over the DMCA, which prohibits virtually all distribution. Under the DMCA, you can't distribute DeCSS at all. Under this regulation, you could distribute the equivalent of DeCSS, as long as you distributed it only to those outside the US. Thus, for open source software developers in the US, they can distribute their work overseas (which will then be redistributed right back to the US).

Caveat: This is based on a quick reading of the regulation. I may be missing something that closes this loophole.

Comments (2) + TrackBacks (0) | Category: Broadcast Flag | Digital Rights Management | Open Source

October 27, 2003

Alternate Reality Visions of the Computing Future from Microsoft

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Posted by Ernest Miller

The New York Times (reg. req.) has a confusing report on the competing visions for the future of computing from Microsoft and IBM (Two Companies at Odds Over the Internet's Future). Not surprisingly, Microsoft denigrates IBM's vision:

"I.B.M. is talking about taking all the things we do now and outsourcing it," Mr. Gates said last week in an interview. "The utility model suggests that it is not about empowerment."

And Microsoft is about empowerment? Mr. Gates must be using a different dictionary then I do. Well, actually, Mr. Gates can afford to have the dictionary changed or at least he acts as if he can. Speaking of outsourcing ... what exactly do you call it when you buy your software on a subscription basis (the model Microsoft is trying to move the market towards)? If I don't actually own my software, but only have access so long as I pay the Microsoft tax subscription fee, isn't that outsourcing my software solution?

Microsoft executives compare the first stage of the Internet to the mainframe era, with the Web server computer the equivalent of the mainframe and the browser as the equivalent of the simple, "dumb" terminal of the mainframe days. The personal computer, they say, brought an explosion of creativity and opportunity as millions of people began using computers and programming themselves. Some were professionals, they note, but many others were ordinary people using the simple programming tools in a spreadsheet, for example, to simulate and test new ideas for a business.

Microsoft praising the "explosion of creativity and opportunity as millions of people began using computers and programming themselves?" Has the world gone mad? Did I somehow slip into the same parallel dimension where Spock has a goatee? Is Microsoft actually encouraging PC empowerment at the expense of centralized, chokepointed systems such as a privately owned monopolized operating system?

The next stage of computing, employing the Web services software standards, will do the same thing for the Internet, Microsoft executives say. "The Internet will be programmable," Microsoft's chief technical officer, Craig Mundie, said. "And there's no reason why the bulk of humanity won't be able to apply the tools we're talking about to this new world."

Ummm, isn't Microsoft's vision that the only tools you can use will be Microsoft's tools? Well, perhaps not the only tools, just the preferred tools:

But, of course, the Microsoft message is that the preferred technology for building and experiencing the next generation of the Internet is Windows.

Ah, turns out I am still in the right dimension.

Comments (0) + TrackBacks (0) | Category: Open Access | Open Source | Open Standards

October 24, 2003

The Birth of SAMBA

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Posted by Ernest Miller

ZDNet Australia has a great story on the birth of SAMBA, which is one of the most important programs to bridge the open source and closed source worlds (Special report: The birth of Samba). Fascinating stuff if you are interested in open source.

via Open Mind

Comments (0) + TrackBacks (0) | Category: Open Access | Open Source

October 23, 2003

Microsoft Haters - MS Wants to Hear From You

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Posted by Ernest Miller

Robert Scoble, who is blogging for and about Microsoft's next major operating system, Longhorn, on the Scobleizer LonghornBlog, has posted a piece soliciting Microsoft haters to actually help Microsoft improve its products (How to Hate Microsoft). It is an interesting look at how Microsoft is exploring new ways to meet the challenge of open source and there are some good comments and replies. I particularly like this comment on open standards and this reply to another question on open standards. Though I doubt Microsoft would really care, what is the answer to this question?:

OK, you're a Microsoft executive now. Why again would you invest in developing [open] standards such as those?

via Scripting News

Comments (0) + TrackBacks (0) | Category: Open Source | Open Standards

October 21, 2003

Open Source Migration Guidelines from the EU

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Posted by Ernest Miller

The European Commission's Interchange of Data between Administrators (IDA) strategic initiative has announced the publication of a document that will:

1. ... [H]help Administrators decide whether a migration to OSS should be undertaken.
2. ... [D]escribe in broad technical terms how such a migration could be carried out.

The home page for the guidelines is here (The IDA Open Source Migration Guidelines) and describes them thus:

The IDA Open Source Migration Guidelines provide practical and detailed recommendations on how to migrate to Open Source Software (OSS)-based office applications, calendaring, e-mail and other standard applications.
They have been developed with guidance from public sector IT experts from Denmark, Finland, Italy, Germany, Malta, the Netherlands, Spain, Sweden, and Turkey. The relevance and readability of the Migration Guidelines were validated with the help of the regional authorities of Mecklenburg-Vorpommern, Germany.

The actual 198-page book is here (The IDA Open Source Migration Guidelines [PDF]) and seems to be quite comprehensive. The guidelines were produced in partnership with netproject.

Very cool. I remember discussing this with some Italian bureaucrats a couple of years ago. They had little idea what I was talking about. Much progress has been made since then, apparently.

Comments (0) + TrackBacks (0) | Category: Open Source

Announcing Gnomoradio

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Posted by Ernest Miller

Gnomoradio is a new open source project that integrates music file sharing with Creative Commons licenses. Basically, music under a CC license will be available on this network via a combination of file sharing methods. Since the music is under a CC license, the network and sharing is clearly legal. Moreover, collaborative filtering techniques and other social software elements will be integrated. Read the press release (Announcing the Gnomoradio Project, and Calling for Musicians). The project sounds very, very cool. Unfortunately, there is no executable currently available. I've actually been sort of expecting a project like this to come along; I hope it is successful and becomes popular.

via Lessig Blog

Comments (0) + TrackBacks (0) | Category: File Sharing | Open Source

October 16, 2003

House Adopts Microsoft Software "Solution"

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Posted by Ernest Miller

The article isn't available online without a subscription, but the Capital Hill newspaper Roll Call is reporting that Microsoft and House Chief Administrative Officer Jay Eagen have signed a three-year contract, which will mean that House offices will be eligible for licenses for Microsoft Office and upgrades for Microsoft Windows without having to pay fees from their Members’ Representational Allowance. Apparently, according to an anonymous House aide:

offices have declined to upgrade older systems, such as Microsoft Windows 98, because of the cost.
The contract “remove[s] the barrier of, ‘Gee, I can’t afford to do this upgrade,’� the aide said.

Too bad that deal isn't available to the general public. More importantly, too bad that representatives won't be faced with the expense of keeping up with Microsoft upgrades. When things seem "free" you don't pay nearly as much attention to what the actually cost.

Apparently, the House maintains a list of minimum technical requirements the offices are supposed to meet. It would be interesting to get ahold of that list. I wonder if it includes requirements for the use of open standards where possible.

Comments (0) + TrackBacks (0) | Category: Open Source