The September issue of SCRIPT-ed, the online journal of Law and Technology, is now live. This issue is packed with quality (says the person who wrote the editorial, so I'm clearly biased).
In this issue:
| Editorial |
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| Peer-Reviewed Articles |
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| Analysis |
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| Book Reviews |
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Some readers may remember my previous comments about a dubious advertising campaign from Virgin Mobile Australia. Some of the pictures were clearly bordering on the defamatory, so it should come as no surprise that Virgin has been sued by one of the victims. However, what may prove truly surprising is that the list of defendants includes Creative Commons.
The background of the case is quite typical of the user-generated webspace. Sometime in April this year, Justin Ho-Wee Wong took a picture featuring American teenager Alison Chang and placed it on his Flickr stream and released under a Creative Commons Attribution licence (the picture has now been removed from Flickr). There are millions of such pictures online, but this one was picked up by Virgin Australia's advertising agency and was included in Virgin's now infamous "Are you with us or what?" ad campaign (find more pictures here), with the caption "Dump your Pen Friend". The ad was photographed by sesh00 in a bus stop in Adelaide, and then posted with a comment in Flickr. Alison found to her surprise that she was in the picture, commenting "hey that's me! no joke. i think i'm being insulted...can you tell me where this was taken." The ensuing discussion will elucidate on the roots behind the current suit, but also may serve as a reminder of the complexities of legal issues in the Web 2.0 era. The end result is that the family sought legal advice, and they have finally sued in a Dallas County District Court. The complaints against Virgin Mobile are for invasion of privacy, libel, and breach of contract; while the claim against Creative commons is for negligence.
Some people may ask what is the big brouhaha about this picture and why would the family feel insulted. I must admit that there is something indeed sinister about the entire campaign, and I also share some people's idea that the caption is rather racist. Jenn at Reappropriate blog has made a very shrewd analysis of what is wrong with the picture, the caption seems to be playing with the racial stereotype of the geeky Asian pen pal girl, when in fact this is a typical American teenager pictured by her friend. Some of the earlier Mainstream Media reports also seemed to assume that the suit was prompted by the smaller caption "Free Text Virgin to Virgin", which seems to have some sexual connotations.
I have no idea whatsoever about some of the personality rights and the potential privacy issues according to Texas and Australian law, so I will not comment on Virgin's potential liability in those terms. However, I will just say that it was just a matter of time until they got sued by one of the people depicted in the campaign, I mean, what were they thinking? I will point out that some advertisers, photographers and people in the know have commented on the fact that this image had no model release form, and that the advertising agency should have known better. The fact that the picture was released under a Creative Commons does not change the fact that there was a person involved, and that the subject should have been treated as any model. The Attribution CC licence allows commercial use, but it does not exempt Virgin from its derogatory use of the people involved in the image. Creative Commons licences deal with copyright, and any other rights involved have to be dealt with separately.
The marriage between digital photography and the Internet have heralded an era where countless pictures are posted everywhere online. We all take photographs and post them in blogs, Facebook and Flickr. Should we be walking around with model release forms in order to avoid litigation? Clearly not! Most people live their lives assuming that taking a picture and posting it online is just one of the facts of the networked era. However, this case should continue to highlight the fact that there are potentially sensible images out there, including drunken debauchery on Facebook, or a blog post taken out of context, and that we should therefore exercise caution.
What about Creative Commons' involvement? The negligence claim against the organisation reads:
"Creative Commons owed a duty to Justin Wong, as a user and beneficiary of its license. Creative Commons breached this duty by failing, among other things, to adequately educate and warn him, as a user of the Creative Commons Atribution license, to warn him of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use."I believe that this is a preposterous claim, but one that is shared by some. Since the earlier Flickr discussion about the Virgin campaign, and from the debate taking place with regards to this particular image, it is clear that there appears to be a backlash against Creative Commons. Some people have wondered if it is best to revert to "All Rights Reserved", which I notice has been done by Mr Wong to his extensive online picture collection. The problem is that Creative Commons goes out of its way to educate the public and to explain the issues in understandable terms via pictures, comics, videos and by the existence of the human-readable Commons Deed. Similarly, all licences contain the following disclaimer:
"Creative Commons is not a party to this Licence, and makes no warranty whatsoever in connection with the Work. Creative Commons will not be liable to You or any party on any legal theory for any damages whatsoever, including without limitation any general, special, incidental or consequential damages arising in connection to this licence. Notwithstanding the foregoing two (2) sentences, if Creative Commons has expressly identified itself as the Licensor hereunder, it shall have all rights and obligations of Licensor."It may seem as a typical legal cop-out, but it is an important point. Creative Commons is not party to any agreement, its duties are fulfilled by offering pre-drafted licences to the public. In my opinion, its duties are more than adequately fulfilled by the various channels of public information available to licensors. Larry Lessig has commented on the case already, and I find his arguments sound. I cannot see how a court would find CC liable for negligence in this instance, and I believe strongly that CC's involvement will be thrown out early into the litigation. Virgin's involvement however is more serious. Their nasty campaign has come back to haunt them, and it seems like they know it; when you visit Virgin's "Are you with us or what?" website, all you get is a logo, and the offending images have been removed.
(Via Lilian Edwards)
Two excellent spoofs on those annoying anti-piracy ads:
One from Channel 4's The IT Crowd.
And one warning from history:
I've just returned from conferencing. First there was a very interesting seminar at WIPO on the subject of Rights Management Information (interesting for those who find metadata interesting of course). I believe that there is a growing push towards metadata standards and identification data to be included into works as a replacement for technical protection measures. Yes, DRM is now officially dead.
Then I went to London to Law 2.0 and then GikII 2. I thoroughly enjoyed both events, and there is a lot to comment, which I will do soon.
(via David Berry) This is an awesome guide to setting up a show downloading service on your computer. With NBC terminating their contract with iTunes in the USA, and with iTunes UK TV shows being sold at a prohibitive price, consumers are voting with their feet and choosing to download their favourite telly from BitTorrent sites.
The British have welcomed download technology with open arms. UK viewers are the top TV downloaders with 38.4% of the market, and larger numbers of Brits are finding entertainment in the small YouTube box.
By the way, if you are looking for tips, download the Miro player, and bookmark tvRSS.
(via Out-Law) Browse-wrap agreements have received yet another boost in the United States in the case of Cohn v Truebeginnings. The California Court of Appeals has ruled in favour of the defendants in a case of contract formation via terms of use.
Michael Cohn sued dating website True.com in December 2005 alleging sexual discrimination against males in the site, as it provided special offers for females such as lifetime subscription to email and chat services in the site. The defendants moved to dismiss on the grounds of inadequate forum, as their terms and conditions clearly contained a jurisdiction clause that stated all litigation would take place in Texas; the case was dismissed on those grounds. Cohn appealed, arguing that he had never agreed to enter into a contract with True.com, as their terms and conditions did not constitute a valid agreement.
The reason why this case is important in the history of electronic contract formation is that it is a click-wrap and browse-wrap hybrid. In a typical click-wrap agreement, the parties are given the terms an conditions upfront, and then have to click "I agree" or a similar button. In browse-wrap agreements, the terms and conditions are not presented in the same page, and are usually available through a link. I say that this case is a hybrid because True.com's terms and conditions had bot elements. When a new customer signed up, he would be presented with the following message:
I am 18-years-old and I have read and agree to the TRUEThe customer would express his acceptance of the terms of service by clicking on the Continue link. However, the terms and conditions were never presented upfront. I can think of at least a dozen e-commerce sites on both sides of the Atlantic that contain similar contract formation formats.
Terms of Use and Code of Ethics.
CONTINUE
"Respondents presented substantial evidence that appellant had to click on the “continue” button in order to register for his trial membership on the Web site, and that doing so constituted an agreement to the “Terms of Use” on the Web site. Appellant may not have read the “Terms of Use,” but they were readily available to him on the True.com Web site if he clicked on the “Terms of Use” link near the “Continue” button. Under these circumstances, where appellant obviously had access to the Internet and was entering into a contract on the Internet, there was nothing inherently unfair in requiring him to access contractual terms via hyperlink, which is a common practice in Internet businesses."I have to say that the ruling seems very logical and fair, but I'm encouraged by the result because Mr Cohn does not sound particularly nice. I mean, what kind of person goes to a match-making website and gets angry about the preferential treatment given to women? Successful dating sites rely of the availability of females, so the promotions seem to make perfect marketing sense. But more worryingly, is chivalrous behaviour completely dead? I'm guessing Mr Cohen may have been angry about something else, and not particularly by the terms and conditions encountered.
The Washington Post reports on action being taken by some ISPs in the United States to curb high traffic. Comcast is reportedly terminating users' accounts based on high bandwidth usage, although it seems like there is no specification of how much is too much. I'm surprised by the move, as it has the potential to get heavy-users to leave Comcast and choose other networks. Then again, this may be precisely what is intended.
The natural techie reaction to stories like this is to cry foul. In fact, every fibre in my body seems to be wanting to write "keep your hands off our Web!" However, the more I think about actions like these and about the whole net neutrality argument, the more I think that something needs to be done. Let's assume that bandwidth is a limited resource (which is in itself a contentious technical statement after all). If small numbers of users take up most of the bandwidth, then that would affect how others are able to browse at peak times. Why not place restrictions on how much can a single person download?
Appealing as this argument may be, I'm still troubled. How much is too much? Who gets to determine the thresholds? Is there a technical definition that we can all agree on?
Heady regulatory questions so early in the morning. I'm off to clog the web further by viewing The Internet is for Porn for the 100th time.
USA Today reports about a man in Seattle has been arrested for conducting wide scale ID theft through P2P networks. Gregory Thomas Kopiloff used Limewire to have access to people's personal files in order to gather financial information to be used in online fraud and ID theft. Kopiloff used this data to spend up to $73,000 USD in purchases, using details from at least 83 identified customers.
The reason for the ease with which fraudsters such as these can gain access to information is because careless users unwittingly may be sharing all sorts of folders in their computers, and not only folders containing music, videos and/or software. In some cases the settings were placed by teenagers, leaving their parent's files open. When people share an entire drive, for example, they leave all of their personal information stored in their documents open to scrutiny.
So kids, I hope that you have learnt your lesson. Do not use P2P client software! Use BitTorrent instead.
(via the Pirate Bay blog) The Pirate Bay has opened a web store for all kopimists around the world.The kopimi ethos allows, nay, encourages all to copy the work in a sort of anti-copyright (not to be confused with copyleft and other odious legal concepts). Although some of the designs appear to be rather nice (not to over-use the word "cool" here), sometimes the effort may backfire. The Pirate Bay blog reports that a Swedish shoe store is selling school bags sporting (I use the term loosely) a Pirate Bay design [see image here, at your own risk].
This is of course what kopimi is all about, so I seriously doubt that the Pirate Bay will be initiating legal proceedings any time soon. However, one must enjoy the immense sense of irony generated by The Pirate Bay getting counterfeited.
Yesterday I woke up to this message on Facebook. Profiles are now available from Facebook's main page (the one you get without being logged in), and soon the listings will also make their way to browsers such as Google. It is possible to change privacy settings in order to place restrictions on search capabilities, so Facebook has a good argument on any privacy abuses that may result from this. Their full statement reads:
"You can control whether you have a public search listing, and where it appears, from your Search Privacy page.This seems like the latest in a growing trend towards higher integration between Web 2.0 tools, and it may be the last nail in the coffin of online privacy. In 1999, Scott McNealy said "You have zero privacy anyway, get over it", his words ring true even to this day, and clearly reflect my own experience with privacy.
Since your search privacy settings are set to "Everyone," you now have a public search listing. This means that friends who aren't yet on Facebook will be able to search for you by name from our Welcome page. Public Search Listings may only include names and profile pictures.
In a few weeks, these public search listings can be found by search engines like Google. No privacy rules are changing; anyone who discovers your public search listing must register and log in to contact you via Facebook."
(via EFF Deep Links) Microsoft has released a Game Content Usage Rules, which will make it easier for machinima enthusiasts to assert their copyright from content generated in games like Halo (1-3), Age of Empires, Rise of Nations, and Project Gotham Racing. The inspired grant of licence reads:
"Here’s the magic words from our lawyers: so long as you respect these rules, Microsoft grants you a personal, non-exclusive, non-transferable license to use and display Game Content and to create derivative works based upon Game Content, strictly for noncommercial and personal use. We can revoke this limited use license at any time and for any reason."
The relevance of this is that machinima has been skirting the edges of legality, as many game developers assert copyright over the content generated with their engines. Given the creative complexity of some machinima, those claims seem shallow, but it is really nice to see that Microsoft groks the movement and is willing to allow at least non-commercial use of the generated content. Hugh Hancock, an Edinburgh-based machinima expert, has written about the licence favourably.
Interesting article from the always relevant John Naughton at The Observer. Much has been written about the iPhone's sleek design, it should be flying off the stalls and become the mobile industry's equivalent of the Wii. Yet, it has not, it is selling well, but not as well as some expected. Why is that? The answer is clear, Apple has shackled the iPhone with an AT&T contract, a simple fact that has demonstrated a staggering lack of foresight from the company that has told the industry that DRM is dead. Yes, DRM is dead, but then we will still constrain how you want to use your technology by making sure that we choose the phone network for you. Don't these people eve learn?
Anyway, there have been legal concerns with the iPod because an enterprising American teenager has already cracked the hardware in order to connect to his network of choice (T-Mobile), and another company has managed to crack the software and now sends iPhones anywhere in the world.
At the heart of the question is not only the legality of the locks, and the potential infringement of the circumvention of such locks. I believe strongly that there is a growing legal case to be made against pervasive technological protection measures. But the question that we have to ask, is why has the copyright law been used to back some seriously flawed business models? If Apple wants to make a commercial decision and wants to lock their hardware, that's their choice, but they should not be surprised if users all across the world will say "frack that, I want to use my own network", which generates a huge incentive to break the built-in protection. The evil of TPM legislation is that it hard-wires these nonsensical decisions into the law. It is up to consumers to say no, or to fight back when possible.
For now, I'll stick with my already-cracked iPod.
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