So I’ve been head down and arse up this week; I’ve barely had enough time to get on top of my email inbox let alone my unread blog entries. Finally made some progress this evening at YVR and now on NZ83 en route YVR-AKL.

So while I was underwater a stink kicked up around a thing called the ‘Cloud Manifesto’. Meant to be being released Monday, it was leaked here (all 6 pages of it) a few days early. From my reading between the lines of the thinly veiled blog post by Steve Martin from Microsoft it looks like the document has been written, by an as yet undisclosed group, and is being farmed around a bunch of companies for them to ‘sign up’. There is a posting on the Cloud Computing Interop Forum (on Google Groups) by Reuven Cohen (who I’ve never heard of) who is the ‘Creator of the Enomalism Elastic Computing Platform’ (which I have to admit I’ve never heard of either). Reuven is also involved in Cloud Camp (which I have heard of). I tell you all this and encourage you to go and have a sniff around some of the links above and some of the press coverage so far so that you have some context before continuing.

http://www.techcrunchit.com/2009/03/26/out-of-order-20/ Steve Gillmor from TechCrunch

http://blogs.zdnet.com/BTL/?p=15341 – Amazon expressing their antipathy towards the whole thing

http://www.eweek.com/c/a/Cloud-Computing/Microsoft-Calls-for-Open-Cloud-Standards-538212/ Darryl Taft

I provide the above to give some background. Now for some of my thoughts.

The Emperors New Clothes*

So reading the document itself most of it feels so obvious it barely warrants saying- it’s PR puffery really. I’m going to cherry pick a few statements from the document to discuss.

“We believe that these core principles are rooted in the belief that cloud computing should be as open as all other IT technologies.  “

I hate to break it, but, other IT technologies aren’t that open. As I’ll set out below I’m a big believer that in most cases openness and interoperability are emergent aspects of technology and not something you should really set out to engineer.

“To reassure their customers, cloud providers must offer a high degree of transparency into their operations.”

So I just don’t know how realistic this is. Certainly Microsoft and even more so Google are highly protective of their data center operation details. A measure of security through obscurity is important here still I think. I would also disagree with the authors that moving data into a shared infrastructure necessarily exposes one to more potential for unauthorized exposure.

“Cloud providers must use and adopt existing standards wherever appropriate.  The IT industry has invested heavily in existing standards and standards organizations; there is no need to duplicate or reinvent them. “

So this is bang on target and to be honest the biggest thing that the Cloud Providers can do to ensure *useful* openness is to ensure they use existing standards wherever possible. But do we need this sort of industry bickering to state the bleeding obvious?

“Any community effort around the open cloud should be driven by customer needs, not merely the technical needs of cloud providers, and should be tested or verified against real customer requirements.  “

Would be interesting to know what level of customer involvement there was in the Manifesto document? Were folks like SmugMug (who are my favourite example of a great Cloud operated business) or enterprise customers (I know there is at least one airline using EC2 for some of their stuff) involved? It all feels like a bit much of a simplistic puff piece at the moment- though according to the CCIP group post ‘major players’ have been involved.

“Cloud computing standards organizations, advocacy groups, and communities should work together and stay coordinated, making sure that efforts do not conflict or overlap. “

Haven’t really gotten off to the best start in this regard to be honest.

This document is meant to begin the conversation, not define it.

I’m afraid I agree with a number of the commentators (both vested interests and ‘independent’ voices) at the top of this post. It was a pretty shitty way to ‘begin the conversation’.

Who’s Actually Behind It All

So a big question in my mind is who is actually driving this thing?

To be honest if it were just a group of bit players stroking and stoking their egos then I don’t actually think it would have generated the level of interest and posturing (from MS and Amazon to date) that we’ve seen.

Gillmor looks at the obvious candidates, IBM and Google (Amazon having declared they’re outside the tent). It seems inconceivable that Microsoft and Amazon would not be invited to be involved in this at the earliest opportunity. Even if it were the ‘Anything But Microsoft Brigade’ you’d still expect Amazon to be seated at the table- hell their model of a high scale application operator selling their dog food to others embodies for me much of what the cloud is about.

I have no idea how Cohen can, with a straight face, say:

“Given the nature of this document we have attempted to be
as inclusive as possible inviting most of the major names in technology to
participate in the initial draft.”

Given that this Manifesto appears to be largely driven by East Coast companies I can’t help but think that IBM have got their finger in this somehow. It’ll be somewhat ironic if this the case, as a key proponent of the standardization of Office Open XML (now ISO29500) I’ve had first hand knowledge of IBM’s ‘do as we say’; might this be their ‘not as we do’ moment?

I guess all will be revealed come Monday.

On The Substantive Matter- Or Why I Only Kind Of Give a Crap About Interop in the Cloud

Standards stifle innovation. There, I said it. Friends of mine will probably bitch at me for being so blunt, but, I genuinely believe that standardizing technologies is, in most cases, best left until they have reached a reasonable level of maturity.

Once something is standardized pace becomes glacially slow and the ability for innovators to recover a return on intellectual property becomes nigh on impossible. There are, of course, some business whom this model is de rigueur- I guess we’ve got to wait until Moday to find out more.

For the most part we’ll be building our applications using the same protocols and technologies that we’ve always done. At least for the stuff that spins my wheels, high scale applications, there’s not a lot that’s new in the cloud; it’s really just an interesting new way to deploy and dynamically scale the same architectures I’ve been working on since I was building SaaS apps in the Dot Bomb days.

The new stuff really comes down to the cloud fabric^ and the management thereof and frankly I think it’s too early to think about standards. Amazon scales at the unit of a virtual machine, Microsoft does the same but with sugar on the top to hide the fact that it’s really Windows at all. Let’s see what sort of models shake out best for customers before we try and anoint one king.

I Guess We Wait Until Monday

As someone looking to ship a pretty significant Cloud delivered app later this year what I really want is;

• For my Cloud provider of choice to ship their bits!
• For my travel schedule to slow down a bit- my Tripit stats are truly horrendous and I’m flying to Bangalore Monday morning.
• For the Manifesto authors, whoever and wherever they might be to read a little Hayek.

Let’s see was happens Monday.

*So worth nothing this wasn’t my turn of phrase. Used here first but I liked it so much I pinched it!
^Call it what you will, this is the term I use when talking about Windows Azure at least.

So back online afterthe Blackout.. and whaddayaknow… they delayed it

Internet copyright law delayed

So I’m finally on the homeward stretch of a tour around Asia presenting on Microsoft CRM technology- currently sitting at the airport at Singapore waiting to get on my flight to Sydney. Will be my first flight on an A380 so I pretty buzzed!

I just posted a comment over on Cactus’ site where she’s having a whinge about Air New Zealand.
I’m sorry but I’ve tried a bunch of the *A carriers and while NZ is not perfect it’s the best of the bunch I think. As for calling out Singapore Airlines as a shining light- I’m sorry but until they fix the following that aren’t playing the game in my book

• Checking in *A Gold card holders at their business counters @ Changi T2 and T3- instead of having a special area to hide them away in.
  

  In your place from the moment you step through those big glass doors.

  The ‘Special’ Gold Card Holder check in area. Note the tape fences to keep the Economy Class flying ‘swine’ in check!

  Reserved for Proper Premium Service passengers only. No cattle here.

• 
   
  
• Allowing *A gold card holders to use their business class lounge at Changi T2 and T3 the same way that every other bloody Star Alliance airline does for their frequent flyers. Instead *A Gold members get a ‘special’ lounge without showers and the other niceties one might expect. Back in the days before T3 they used to claim it was due to ‘space requirements’ but with the move to T3 this ‘excuse’ is categorically a complete load of bollocks- It’s peak time in the lounge right now with all the long haul flights leaving over the next couple of hours and the place is empty.
  
• Updating their priority boarding policy and priority boarding signs to make it clear that they actually give a shit about being part of a global alliance rather than just paying it lip service.
  
  Star Alliance?!? What’s that?

For my next post, you’ll get my feelings on the behaviour of another behemoth of the Alliance, the perpetually bankrupt, United Airlines.

Deep down I really just want to fly on Spice Jet!

I hope the inflight service is as Spicy as it sounds! Though without the naked Cacti as I’m sure they’re sans a J cabin that would be up to standard.

While I have posted before that I don’t agree entirely with the approach taken by the Creative Freedom people. I do, like almost every blogger, from almost every political persuasion, think that this is a poor piece of legislation.

The last Labour government passed a particularly insidious piece of legislation (well actually they passed a few).

So I’ve been using the internet for a long time. I remember when Windows 3.1 never used to come with a browser. In most cases I’d use a copy of the browser from a 3.5” floppy disk and I’d install it with that. Sometimes I’d install a command line FTP client or Cute FTP from my floppy disk and use that.

Eventually Microsoft and the OEMs started shipping Windows with a browser. This meant that no matter what browser I actually wanted to use… I didn’t have to find my floppy disks because I could just boot up the browser and browse to Netscape.com and download my preferred browser. This was a marvellous advance.

The DUMB folks at Opera think this was some sort of retrograde step. The even DUMBER folks at the European Union are listening to them. Microsoft may have to ship a special European version, especially crippled to not have a browser.

Maybe DUMB and DUMBER haven’t thought about it yet… but, how the $%*&! do you download a competitors browser if you don’t have a browser to download it with in the first place! How many of the ‘late comers’ to the web have any idea where to find a browser DVD/CD/Floppy disk. How many have the foggiest flue how to login to their ISPs FTP server to download it? They expect to buy their PC from the department store (noticed how few ‘computer stores’ are left) and they expect to take it home and it just plugs into ADSL and works.

This is the most completely stupid idea I have ever heard of!

I hate Competition law at the best of times. It’s a nasty retrospective “don’t know you’ve broken the the law until you’re actually prosecuted because we changed what it meant half way along the way” piece of shit public policy. But, I hate DUMB and DUMBER even more.

It’s funny where people pop up. One of the people I was on the Standards New Zealand Office Open XML Advisory Group with, Matthew Holloway, has just launched a site at http://creativefreedom.org.nz/. It relates, among other things to the recently passed Copyright (New Technologies) Amendment Act.

I’ve been aware of this Act as it passed through the parliamentary process and have maintained a bit of a watching brief on it given my interests in PoliTechLaw stuff. Anyway, the new site that Matthew has launched today gives me a chance to jot down some of my thoughts on the Act (and the other things Matthew mentions). I’m not going to discuss the process by which the Act was passed, that’s water under a shabbily constructed bridge.

So if you like a quick summary of my views here it is:

1. I find s92 of the Copyright Act 1994 (as amended) to be abhorrent however;
2. I wonder if some of the people similarly opposing these recent amendments actually live on planet earth… ISPs unilaterally turning off the internet at hospitals and schools!?! I mean honestly, less rhetoric and more solid argument is required.
3. While I support the concept that patent rights are provided for by way of an explicit social contract i am les inclined to apply the same logic to Copyright.
4. I see no problem in the use of DRM and other technological protection measures and;
5. I see fair dealing rights as a defence to an action in Copyright infringement and not as a right that can be exercised in a positive fashion (i.e. you must disable the TPM in this DVD so I can have Fair Dealing access to the content) however;
6. I do not agree with any form of legislation that restricts/prevents/prohibits tools and discussion for the avoidance or removal of technical protection measures.
7. I actually support DRM because I believe that it will encourage rights owners to deploy new business models that benefit me as a consumer.

Section 92 of the Copyright Act 1994 as amended and why I don’t like it.

But First A Little Help with the Law

As an aside before we get cracking on this the Creative Freedoms site is wrong when it talks about ‘The proposed Section 92 of the Copyright Amendment Act’. Firstly a proposed piece of legislation is a Bill, a passed statute (post the GGs Royal Ascent) on the books (as this is) is an Act of Parliament. Secondly, and more importantly, s92 of the Copyright (New Technologies) Amendment Act 1998 actually reads:

92 Rights and remedies in respect of apparatus, etc, for unauthorised reception of transmissions

• Section 228(1)(b) is amended by omitting “broadcasting service or cable programme service” and substituting “communication work”.

I think that what the authors are actually talking about is Section 53 of the Copyright (New Technologies) Amendment Act 1998 which inserts a New heading and new sections in the Copyright Act 1994. Those new sections are inserted after s92, hence the confusion. But, important to clear up I think.

s92 of the Copyright Act 1994, the substantive discussion

I’m all for the law throwing the book at Copyright infringement. I support strong criminal penalties and robust civil damage awards. However, I think that we tread a VERY slippery slope with s92 of the Copyright Act.

To interfere, by force, in the voluntary contractual arrangements of two private citizens is something that a Government should do reluctantly if ever. The strongly held view leads me to disagree with such tings and Employment law, but, we shall leave that more anarcho-capitalist set of discussions for another time. For the purposes of this discussions I’m happy to frame my non-interference views in more relaxed terms.

If the Government wishes to injunct the relationship between an ISP and it’s customers then they should do so before a court of law. That court may choose to apply such burden of proof as it deems appropriate given the nature of the situation. I am comfortable, as is the case with things like search warrants, with such applications being made ex parte, but, this is a matter for the Courts.

I can’t actually think of any similar intrusion into the rights of freely contracting parties on our law books. We certainly do have quite intrusive laws, the example that jumps to mind are Compulsory Treatment Orders, but, they are always guarded by the Judiciary and not for the government to exercise by fiat- they are most certainly not for the Government to abrogate to other citizens for enforcement.

I think this section of the Act is a nasty little piece of work and unlike the NBR I cannot be so pleasant as to ascribe it to the absent mindedness  of technological neophytes.

The Reality that doesn’t match the Rhetoric

So, having set out my strong opposition to this Section I will also have a go at some of the silly paranoia that’s being published. The CreativeFreedom site at http://creativefreedom.org.nz/s92.html opens with:

“Copyright infringement is wrong, but should people, schools, and hospitals have their internet connections and websites cut off due to accusations of copyright infringement?

111 calls, schools, businesses and artists rely on Internet Connections so it's not unreasonable to say that "Internet access is a basic human right"…”

I’m all for opposing this piece of law, but, saying things like the above is just silly. Flawed as the Act is, telecommunications companies will have robust processes for implementing it’s requirements. Just look at the brouhaha that went down after the Muliaga case (though don’t get me started on that one either!). Schools and hospitals will not be having their internet arbitrarily cut off and to these people to say so it utterly disingenuous, though not entirely unexpected. 

111 calls should not rely non the Internet. Consumer grade internet (and I include in that most businesses) is not a Telco level service. It breaks some times. Shit happens. Buy a cellphone.

As for Internet as a human right comment…

Patent Rights vs Copyright – IP as a social contract

On their What is Copyright page the CreativeFreedom folks wheel out the somewhat veiled Copyright as a Social Contract argument. Rousseau of course argued that even our concept of ‘Real Property’ is grounded in a Social Contract (see J-J Rousseau, The Social Contract and Discourses Chapter 9) and I’d love to have a more detailed philosophical argument with some of my more Marxist readers about property rights some, but now is not that time.

I tend to agree with the social contract theory as it applies to Patent Rights. My reasoning for this is that Patent Rights are enforceable as against someone who has developed a patented invention completely independent of the patent owner- thus this second inventor may be deprived the opportunity to recoup the fruits of his creativity. As a society, we have decided to implement the social contract of Patent Rights as we believe that the costs (as noted above) are outweighed by the incentives that Patent Rights provide to creativity. This puts me at odds with the majority of libertarian thinkers on this topic (e.g. Rand, Branden, Greenspan).

On the flip side I do agree with them on the matter of Copyright deriving from a mans right to the product of his mind. I encourage you to read Capitalism: The Unknown Ideal, a collection of essays by Rand, Branden and Hessen. If yu’re in WLG let me know and you can borrow my very tatty copy.

Treating Copyright as a social contract in the way that people like Lessig does is convenient in that it allows them to justify on moral grounds a much broader degree of free and unfettered access to the work of others. I have no doubt that this is what the authors at CreativeFreedom are getting at. It’s something I completely disagree with.

I want my.. I want my… DRM

People bitch and moan about DRM- if you don’t want it, don’t like it then don’t by it- we’ll talk about the ‘I should be able to enforce my fair dealing rights as against the copyright holder’ argument below.

So I actually think DRM brings with it some interesting new opportunities for innovative business models. I won’t go into this in great detail but things that appeal to me about DRM. It makes it easier for the license to use a Copyrighted work to be separated from the physical incarnation of that work. So for example I might be able to purchase a right to BT – Ima and exercise that right to access the content in a bunch of different ways- e.g. I could use the CD I own, I could get it via on-demand satellite in my car, if I lose/scratch/trash the CD I can get another copy, I can ‘lend’ my rights to a friend for a period.

This sort of innovation is unpalatable to rights owners without DRM and there it just won’t happen. I’m all for innovation in the IP space- DRM is one avenue of that innovation.

Fair dealing is a defence and not a right

Fair Dealing (Fair use under US Copyright law is a similar concept) provides for a defence to an action in copyright if an individual makes a copy for certain reasons or uses. It is CRUCIAL that you understand that this is a Defence and not a Right. To make it quite clear, let me describe with a couple of little examples each peppered with a little self-aggrandizing.

I’ve taken a lovely photograph- with my nice new Canon 5D Mk II camera- yup one of the first few to get one in NZ and many jealous friends still waiting… but anyway I digress… So, I’ve taken this picture and I come over to your hose and let you take a look at it. You hold it up to the light in your hands and tilt to see the marvelousness of my artistic creativity. You ask if you can borrow it and I say sure. While you are borrowing it you take a colour photocopy of it for inclusion in your PhD on amazing NZ photographers. This dear reader would be Fair Dealing. Were I to return, annoyed as hell at you having copied my photograph, you would have a defence were I to bring either a civil or criminal action in Copyright infringement.

The second scenario is similar but different.

I’ve taken a lovely photograph- with my nice new Canon 5D Mk II camera. So, I’ve taken this picture and I come over to your hose and let you take a look at it. You hold it up to the light in your hands and tilt to see the marvelousness of my artistic creativity. You ask if you can copy it to include in your upcoming PhD on amazing NZ photographers. I say no, I don’t want it copied. You call the Government and have them compel me to provide you with a copy so that you can ‘exercise your Fair Dealing rights to make a copy for academic purposes’. This dear reader would be the case if you had a Fair Use Right. It’s not as silly as it sounds- there are a large portion of the new Zealand populace who have a ‘right’ to a significant portion of my income each month. The Government comes around and enforces their right as against me.

I know it’s a bit of a contrived example, but, I think it makes clear my point as to the difference between the defence of Fair Dealing and a ‘Right to Copy for Fair Use’.

This means that I do not believe that there should be ANY requirement on rights holders to make their works available for copying or for fair use. If you are able to make a copy for Fair Dealing purposes then you will have a defence, but, you are not able to compel me to allow you to make a copy- for example by disabling a Technical Protection Measure such as DRM.

Let the Copyright Wars Rage

Having said what I have above about Fair Dealing, I do not think that Technical Protection Measures should have the protection of the law. The reason for this is they may prevent someone from making a copy that may be covered by a Fair Dealing defence. While there is no obligation that you can enforce against the rights holder to compel them to provide a circumvention of the TPM, there should likewise be no law preventing a rights user from attempting to circumvent that technical protection measure.

I quite like the Libertarian Commentary on the DMCA found here. I wrote a pretty decent (if I do say so myself) research paper on this topic for my 400 level advanced IP course at Uni…. I’ll try and dig it out.

Anyway… better get back and do some work. Interested in any comments or views of others.

So the New Zealand companies office is advertising on their front page an Open Source CMS system called Plone.

What on earth is up with that?

It’s great that thy have enough self awareness to know what CMS system they use, but, is this really the sort of thing a Government department should be doing?

Maybe if they were using a New Zealand developed tool like from the guys at kick ass Wellington firm Silverstripe then at a REAL push this might be excusable behaviour, but, Plone is some foreign developed tool. To be honest no matter who or what the tool or vendor I think this is totally inappropriate.

Was this signed off by the MED PR folks?
Was this done by their internal IT team?
Was it a vendor that did it?
Is this appropriate for a Government department?

So it's not official yet, but, things seem to be leaking like a sieve.

Undy Updegrove has details of what looks to be the final vote. http://consortiuminfo.org/standardsblog/article.php?story=20080401033558908

I'm looking forward to moving our products to support OOXML and to continuing to participate in the development of this standard.

Result of voting

P-Members voting: 24 in favour out of 32 = 75 % (requirement >= 66.66%)

(P-Members having abstained are not counted in this vote.)

Member bodies voting: 10 negative votes out of 71 = 14 % (requirement <= 25%)

Approved

"I am deeply concerned that some national bodies have considered approving DIS29500 'in their national interest'. It is not in the interest of the UK or any other country for DIS 29500 to be published as an international standard in its present form as there are a significant number of unresolved issues, including incompatible licensing conditions, single vendor interest and control as well as those other factors uncovered since the original comment period closed."

He concludes by urging the BSI not to change its stance on OOXML."

"There has been much discussion in the free software community and in the press about the inadequacy of Microsoft's Office Open XML (OOXML) as a standard, including good analysis of some of the shortcomings of Microsoft's Open Specification Promise (OSP), a promise that is supposed to protect projects from patent risk. Nonetheless, following the close of the ISO-BRM meeting in Geneva, SFLC's clients and colleagues have continued to express uncertainty as to whether the OSP would adequately apply to implementations licensed under the GNU General Public License (GPL). In response to these requests for clarification, we publicly conclude that the OSP provides no assurance to GPL developers and that it is unsafe to rely upon the OSP for any free software implementation, whether under the GPL or another free software license."

Feel free to take a look at the comments to the last post as this is a followup. You may want to ignore the snipey content devoid comments from our friend in the NZOSS community.

Herewith a follow up post that hopefully addresses the substantive questions that were actually raised (thanks Stu)

Sorry for the delay. I've been busy trying to get a high quality specification progressed through the ISO standards process. Oh and I've also managed to get outside to do some skiing in the Montana backcountry.

The issue is that the GPL aims to enforce the distribution of any derived work under the GPL also.

I do not want to release my applications under the GPL and inparticular I do not want to release any Open Source code I write under the GPL as I do not believe in the 'Copyleft' philosophy to which it subscribes.

Now that's fine. As a general rule I avoid GPL code like the plague (we do use LGPL code in some of our products). In fact our contracts at Kognition included a clause requireing neither party to the agreement to provide GPL code to the other.

So the question then comes to can I implement ODF without having to derive my work from any GPL based code.
My feeling is that even looking at the code for say OpenOffice will get me into trouble.
Likewise decompiling the code will be problematic.

I am actually comfortable reverse engineering by observation for features like 'blink', I do not believe that is going to breach copyright in the work.

But the question is, will reverse engineering by observation be sufficient. And to be honest I just don't know the answer to that question. I don't really see myself spending that much time working with ODF as I tend to agree with The Burton Report as to its likely levels of adoption and indeed the likely market segments to adopt it- selling software to people who are philosophically opposed to paying for software is unlikely to be a sustainable business. That said I did find a very interesting bit of commentary on the web about just this problem quite recently.

http://www.gnome.org/projects/gnumeric/announcements/1.8/gnumeric-1.8.shtml

"The Gnumeric team does not envision using the OpenDocument Format as its native format.

The spreadsheet part of ODF, in its current form, is ill defined and has many, many problems. For example: (1) there is no meaningful discussion of what functions a spreadsheet should support and what they should do. Without that, there is little point in trying to move a spreadsheet from one program to another; (2) there is no provision for sharing formulas between cells; (3) there is no implementation -- writing an ODF exporter consists of reverse-engineering OpenOffice to see what parts of the standard it can handle. (Note: the preceding comments relate to the spreadsheet part of ODF only; we do not have an informed opinion on ODF for word processing documents, for example.)

We may revisit this decision in the future, should the situation improve. In the meantime, we will strive to maintain a reasonable importer and exporter."

Those guys look to have actually broached the problem and to be honest that kinda answers my question. If I can't realisitically use ODF without reverse-engineering OpenOffice then I'm pretty much stuffed in terms of writing a GPL free implementation.