A netbook by any other name, or how Psion is going discover you have to use it or lose it.

It was reported earlier this week that lawyers acting for Psion were writing out to those using the term “netbook” to describe mini-laptops optimised for web/internet use. They were politely – indeed curiously politely – inviting people to ‘transition’ to using another name.

Transition? Politely? Since when do commercial IP lawyers behave like that? 

[Declaration of interest: I'm a commercial lawyer, and IP, especially trademark law, is a significant part of what I do.]

There’s something going on here which could prove very interesting if Psion proceeds to do anything silly. Like actually trying to enforce the rights they’re asserting.

Some basics (skip this if you’re familiar with trademark law):

• A trademark is sign (normally but not exclusively words or images) which indicate the origin of goods or services. 

• In general (and specifically in the EU) they acquire protection in one of two ways; by being used – acquiring reputation and goodwill, i.e. people knowing the trademark and there being sufficient economic activity associated with it – or by being registered with the state.

• An unregistered trademark has to be used to come into existance. A registered trademark doesn’t have to be used, but if it is ever unused for a continuous period of five years it can be revoked for non-use.

• Generally, trademarks give the owner a exclusive right to use the trademark for specific goods, and a right to prevent people using similar marks for the same goods or the same mark for similar goods.

• The goods and services for trademarks are classified into one of 45 classes. Class 9, for example, covers electronic equipment and includes computers. 

Way back when, when laptops were expensive, slow, and heavy, Psion was knocking out a successful range of palmtops. In the late nineties they obtained trademark registrations for the word NETBOOK covering electronics and printed goods, and  used the brand for a device called the Psion Netbook (more familiar in it’s consumer version, the Psion 7). 

Several years ago – as they generally moved to an enterprise focus – they stopped producing the Psion Netbook, and Psion’s lawyers now admit that these days all they do in connection with that product is produce accessories for extant equipment.

Psion still has valid trademark registrations. In the EU, for example, Community Trademark 428050 for the mark NETBOOK, covering a variety of electronic equipment and printed materials, is still in full force, was last renewed by Psion in December 2006, and will stay in force until 2016. 

Unless, that is, it gets cancelled.

Anyone can apply to cancel a registered trademark on grounds of non-use, but as they’ll only succeed if they can demons
trate that the mark hasn’t been used for specific goods for 5 years.

Tantalisingly, Psion’s own website admits that the “end of life” was in November 2003. 

Game over? Maybe. Whilst the same document states that the last maintenance coverage from Psion will not be until 31 December 2008, maintenance services are not goods in Class 9. Psion might be able to argue their maintenance services were branded as “Netbook”, or involved the supply of parts under the mark NETBOOK but from my experience of IT service provision I’d be surprised if that was the case.

The accessories point (as noted above, their lawyers admit this is the only extant business) could be interesting as most accessories (bags, styli, etc.) wouldn’t be necessarily be goods in Class 9, and it’s questionable whether they will have been sold by reference to the trademark NETBOOK. Describing a stylus as being suitable for use with a Netbook Pro is not the same as selling it by reference to the mark NETBOOK. Personally, I would wager that on a factual basis many of the sales of accessories would turn out to be by reference to the mark PSION, not the mark NETBOOK.

All of this is, however, a little academic – it only matters if someone wanted to start branding their own mini-laptops as “netbooks”. Psion’s lawyers, in their correspondence with the blog jkontherun.com admit this isn’t what’s happening. Instead, journalists and some resellers are using the term “netbook” as a generic term for mini-laptops.

Essentially, netbook and mini-laptops are on their way to a relationship akin to the trademark HOOVER and vacuum cleaners. Since the purpose of a trademark is to indicate the origin of goods, becoming a generic term for goods of that type is well nigh fatal.

So why are Psion’s lawyer’s being so polite? Why this talk of transition? Because at root, there’s nothing that they can do by means of legal threats to stop journalists (or bloggers) and the general public appropriating their trademark as a generic term. Using – or abusing – a trademark in that way isn’t illegal, and it’s not trademark infringement. It’s not technically “using” the trademark, which from a legal point of view means applying it to goods and services.

Psion’s lawyers have pointed to some resellers using the term, and that is a potential trademark infringement. But the same is not true if, for example, Zdnet chooses to use netbook as a generic term for mini-laptops. 

Oh, they already are. In fact, they treat netbook as a dictionary word.

And Wikipedia seems to think it’s a generic term too. 

No doubt Psion hope that by sending the letters they’ve sent people will go “Oh god, I better stop using this term!”, but if people don’t react that way Psion are a bit stuffed as they have no further options. 

That ‘transition’ Psion’s lawyers would like to see, if it happens at all, will be voluntary or because people misunderstand what Psion is actually able to do. It certainly won’t be by means of legal force.

There are things Psion could do to try and reclaim the word netbook, but I don’t rate any of them, and I’m not surprised they don’t seem to be trying them.

They could try a massive – and I do mean massive – advertising campaign to promote themselves as being the owner of NETBOOK, but since they don’t even sell devices branded NETBOOK it’s difficult to see the commercial merit of doing that, particularly in a downturn. 

They could launch their own netbook, but it’s pretty difficult to do that from a standing start, and Psion (or Psion Teklogix as they call themselves today) is now almost entirely focused on selling handheld terminals to enterprise clients.

A better move would be licensing the trademark to someone who is selling mini-laptops, but who would pay? Any licensee is going to have exactly the same problem as Psion, and the NETBOOK trademark is pretty impaired IP by any measure.

Personally, I wonder why Psion are bothering at all. I’m sure they’ve been advised by their external lawyers that they are entitled to do this, and morally entitled to protect their IP. With my lawyer’s hat on I tend to agree, but realistically don’t rate their chances of success very highly. However, with my commercial hat on I’m not sure what the game plan is; the legal position may be clear, but the commerciality of this approach is another matter.

From a commercial point of view – and Psion is a after all a commercial business – where’s the margin? There’ll be some minimal publicity, most of it bad, and a nice bill from their lawyers at the end of it (since they are using external lawyers, every one of those letters likely involves a nice little fee to the law firm concerned). Even if they succeeded in stopping the term being used, what benefit does that bring them? There is nothing analogous to the pot of gold at the end of the SCO rainbow (even if that did turn out to be fairy gold!).

Personally, this kind of legal posturing annoys me. I mean to use the term netbook as much as I can – the Streisand Effect in action – and to encourage other people to do so!

Credit to @jackschofield for inspiring this post by tweeting jkontherun.com‘s update on the story earlier today.

UK Government Internet Censorship, or Andy Burnham is a muppet

Ah, Andy Burnham MP strikes again.

Burnham, for those not paying attention, is the current Chief Culture Muppet (aka Secretary of State for Culture, Media and Sport) and successor to the less than illustrious James Purnell and Tessa Jowell. Clearly it wasn’t third time lucky at DCMS.

Not content with helping to pad out Cliff Richard’s pension fund, he now wants to introduce age-ratings for websites.

In an interview with today’s Daily Telegraph, he gave vent to his desire to (as the Telegraph modestly put it) “…bring the internet under control”. Not that Burnham wasn’t just as bad in his own words:

“I think there is definitely a case for clearer standards online. You can still view content on the internet which I would say is
unacceptable. You can view a beheading. There is content that should just not be available to be viewed. That is my
view. Absolutely categorical. This is not a campaign against free speech,
far from it; it is simply there is a wider public interest at stake when it
involves harm to other people.“

This site has been certified (by me) 100% beheading free. Except for this video:

We must be clear on this point – the Chief Culture Muppet is not against free speech, he just believes some things should be censored (sort of like being against capital punishment, except where they really deserve it). How exactly having age ratings will help deal with the availability of beheading-related-content is not clear, probably deliberately so: it wouldn’t do to spoil a nice reactionary comment with any practicality.

[It's hardly the first time Andy Burnham's public comments have
displayed a lack of common sense or forethought. This is the man who at
the time of David Davis' resignation made comments which were widely taken as insinuating Davis was in an extra-marital relationship with Shami Chakrabati.
As a rule, if you're going to slander someone, it's best not to pick a
Tory front bencher who has just resigned on a issue of principal in a
blaze of publicity, and the prominent director of the country's leading
civil liberties organisation. Especially when she happens married to a litigation partner at Herbert Smith... Read Burnham's apology letter courtesy of the Gruniad.]

Using software to control access to material online is perfectly straightforward. Enterprise IT service providers use blacklists and blocking software all the time , as do many schools. There also domestic/home services which have been around for years (Net Nanny, for example, has been going for almost 15 years) and the online industry has a scheme called ICRA which provides ratings that software can use to determine what gets blocked.

Funnily enough very few people actually bother with these services, and whilst they do tend to be easily circumvented and not that reliable, the reality is that parents just don’t bother to buy them in the first place. Unless Burnham is proposing to distribute this software free (at which point he wants shooting for wasting public money) or is intending to try and get all net usage monitored at the ISP end (ala Phorm) his idea is still born.

And the example: beheadings?!?

Presumably Burnham – in a typically oblique and uninformative New Labour fashion – is trying to refer to videos produced by Iraqi insurgent groups. He might have been better advised to talk about material which would disturb those watching it. As Cartman in South Park put it: “I can’t help myself. That movie has warped my fragile little mind.”

Okay, I lied. But this one’s for Mr. Burnham from the boys in the band…

There is clearly a need to protect children from accessing content which they are going to be unable to deal with, but the concept of the state determining what that means is worrying at best. The current government, after all, has such a great handle on the issues that they caused the Byron Review. Chaired by someone whose principal qualification for the role was having presented BBC3 programmes about badly behaved children, this was a public review of the implications of modern comms tech for children. After a long and expensive process, taking evidence from many “stakeholders” and involving lots of so-called experts, it concluded as follows:

1. Technology is a good thing; and
2. Children sometimes need to be protected from things.

(I’m summarising of course)

The Chief Culture Muppet is probably just repeating something he read in the Byron Review report, which is no excuse but is at least an explanation.

Let us not forget the mess that resulted recently when the Internet Watch Foundation decided that the cover of an album which has been openly on sale since the 1970s was child pornography. The IWF isn’t run
by the state, but by the industry. If they can cock it up so
spectacularly, gods help us if the state starts getting involved.

[The IWF's statement afterwards
was such a beautifully clear case of people who know they can't apologise
for what they've done, and know they're going to get castigated if they
don't.  I would still love to know how much the choice between reversing their position and blocking Amazon had to do with the IWF's eventual volte face]

Viewed on its own, Burnham’s comments might just be typically poorly expressed comments by a government minister to fairly reactionary newspaper. Taken together with the Byron Review, and the prohibition of violent and extreme pornography introduced by the Criminal Justice and Immigration Act 2008, it starts to look like a wider inability to understand the implications of the internet for traditional notions of censorship.

The nonsense at the heart of these new attempts at censorship
is illustrated by the CJIA2008: the ban on violent and extreme
pornography contains a specific exemption for works which have been
classified by the BBFC, and a exception to the exemption for extracts
created from such works.

In other words, movie companies can
sell the British public violent and extreme pornography, but only if they bookend it. New
Labour at its best.

On a side note, the Obscene Publications Act – which we were told was not enough, hence the need for the CJIA2008′s new ban – is to be tested in court next year in the first time for decades. It should be interesting to see if the case makes it to court. See here for an insightful comment on the case.

Returning to the cracking wheeze of age rating all websites, when you consider that the ratings already exist (ICRA et al) and aren’t really used it’s difficult see the point.

Well, if you assume this has anything to do with censorship that is.

For I have theory.

One of the main supporters of the copyright extension proposal was Cliff Richard, right? And the Guardian today reported that: “[Burnham] plans to approach US president-elect Barack Obama’s
incoming administration with proposals for tight international rules on
English language websites, which may include forcing internet service
providers, such as BT, Tiscali, Sky and AOL, to ­provide packages
restricting access to websites without an age rating.”

Obama won’t, can’t go for it, not when the Communications Decency Act 1996 was struck down as unconstitutional. But by the time he declines, the Chief Culture Muppet may have already gotten to shake hands with the big O.

And won’t that make it all worth while?

[Disclaimer: I'm sure Andy Burnham isn't pushing net censorship just to get to meet Barack Obama. It would be better if he was, but still...]

Of Popes and Presidents

One week, two world leaders, one common message. Not often you’ll hear that said about the Pope and the President of Iran.

On Monday (22 December) Pope Benedict XVI gave the annual pontifical address to the Roman Curia, and on Thursday (25 December; Christmas Day) the President of Iran, Mahmoud Ahmadinejad, delivered Channel 4′s annual ‘Alternative Christmas Message‘.

The choice of Ahmadinejad elicited the inevitable response from the Israeli Government, the British Government, and somewhat oddly Louise Ellman MP (who apparently chairs the Labour Jewish Movement). I don’t know if any of the foregoing had actually read Ahmadinejad’s speech (it would hardly have been the first time a Labour politician pontificated without checking the source material) but they weren’t that interested in the content anyway – the criticism was reserved for the decision to given airtime to him in the first place.

Shock horror: Israel and the UK don’t like President Ahmadinejad.

In fairness it would have been difficult to find much to criticise in his speech – unless you’re an atheist: he said people should return to spiritual ways, blaming most of the world’s woes on mankind having “…disregarded the message of the Prophets.” [Here's the full text.]

The Pope’s speech should have been a less controversial affair. The ‘Christmas Greetings to the members of the Roman Curia and Prelature’ is an annual engagement, semi-analogous to the President of the United States giving his State of the Union address, in which the Pope reviews the year’s events and delivers a sermon. So far, so mundane.

This year he included a discussion of pneumatology (there’s a word I haven’t typed since doing Christian Theology at A-Level!) in which there were two paragraphs which discussed a specific threat to the spiritual life of mankind – the deconstruction/destruction (depending on your point of view) of traditional notions of “gender”. 

[There doesn't seem to be an English translation of the speech available yet. Here's the German and Italian texts.]

There were only two notable things about it: the fashion in which he deals with the subject, and the use of an appallingly clunky reference to environmentalism to illustrate his point – which led me to tweet Pope channels Bush; says: “I do not believe the human being and the gay can coexist peacefully”.

Another president with links to fundamentalist religious groups, but this one’s actually man aged to start a couple of wars… 

Badly executed as it was, referring to environmentalism was apposite, as was the metaphor of an ecosystem; the message being delivered was that there is no point in saving/preserving the rest of God’s creation if the most important part, the Spiritual Man with his direct relationship to the Creator, is lost.

One of the curious things about the reaction that followed was the extent to which the Pope was held to have attacked homosexuality. The reality is that was no attack, and no focus on nor mention of homosexuality. The concept being criticised was actually gender studies, which seeks to explore and explain the concept of gender. In reality, it has often been a vehicle for those seeking to challenge traditional gender roles, but that challenge has been as much feminist as it has been about gay rights. It was interesting how little comment there was about the fact that criticism of gender studies is also about criticising changes in female roles; although rarely very direct, the Vatican has been critical of “women’s issues” where they appeared to blur gender roles (see, for example, Monsignor Migliore’s address to the UN General Assembly session on female empowerment).

Personally, I think the majority of the outrage was manufactured. It was slow news week, and even if the Pope is a traditionalist, on the question of homosexuality the Catholic Church’s position is quite clear: homosexuals are not evil or sinful, but homosexual acts are. If the Pope had actually come out and said this he would have been doing no more than stating Catholic doctrine. 

Shock horror: the Pope is Catholic.

Of course, the Pope didn’t offer that restatement. I suspect this was deliberate attempt to avoid what actually happened –  homosexuality being singled out when it was not in fact the key part of his message. His target was deliberately broader, and arguably more nuanced. 

The real question is this: why is gender studies such a crucial threat to man’s relationship with God? Nowhere (unless I’m missing something) does the speech make this clear, although perhaps that reflects the fact that it should be self-evident: Catholicism remains deeply enamoured of natural law concepts. Accordingly, it finds it difficult to deal with ingrained notions such as gender being challenged or changed, and it clings to the idea that things (and people) have essential natures which should be respected (or if you prefer, complied with).

Shock horror: Catholicism is not singularity-ready.

The problem of course is that the whole point of an organised religion is to have a set of common beliefs shared by all adherents. Those beliefs are accorded – because this is the nature of religion – the status of “Truths”, and they are not negotiable, even if they sometimes prove interestingly difficult to generalise (all human life is sacred, so don’t think about abortion or euthanasia, and when the theologians get started there’ll be a few more items for the list).

For this reason, I’ve always had more sympathy for external groups (like Stonewall) criticising religious organisations over gay rights than for the internal groups (take for example the Lesbian and Gay Christian Movement). There’s a fundamental definitional issue if you claim to be of X religion, but also claim not to accept one of its beliefs. I realise it’s easy for an atheist to say, but…if your religion doesn’t like you, have you considered the possibility you have the wrong religion?

At root, the Pope’s message was this – you don’t get to choose how the world is, so your only choice is God or not God, and if you choose God you have to act accordingly. Which is more or less the same message (allowing for the occasional veiled reference to “expansionist nations”) offered by President Ahmadinejad.

A media furore on both your houses.

Hello World!

Cliché? Or traditional? 

Whichever, Hello World! is normally the first thing you do in a new programming languages, and so it seems appropriate to do the same here.

More anon; a celebratory cup of tea is in order. In the meantime, a list of Hello World programmes in various languages.