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.
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 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.
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.
The case involved Robert Jacobsen, an open source developer participating in an open source project called Java Model Railroad Interface (JMRI), which is a model train software released it under the Artistic License. Jacobsen received a letter demanding the licence fee payments from a company named Kamind Associates, owned by Matthew Katzer, which has obtained software patents over model rail road software (particularly U.S. patent 7,216,836). Jacobsen decided to pre-empt legal action and sued Katzer first, alleging that the patent is invalid on the grounds of obviousness and for failure to meet disclosure requirements. He later amended the complaint to include copyright infringement, as he claims that his software pre-dates Katzer's.
The current decision rules on a motion to dismiss by the defendants and on a motion for preliminary injunction from the plaintiff. The District Court granted some of the motions to dismiss, denied others and denied the claim for preliminary injunction. The important bit of the decision is the analysis of the copyright infringement claims. The Court has declared that because the software is released to the public online through an open source licence, there is a clear permission to use the software. The Artistic License is not a copyleft licence, it allows modification and the creation of derivatives, provided that those doing it insert prominent notices on each file, and perform one of the following:
"a) place your modifications in the Public Domain or otherwise make them Freely Available, such as by posting said modifications to Usenet or an equivalent medium, or placing the modifications on a major archive site such as ftp.uu.net, or by allowing the Copyright Holder to include your modifications in the Standard Version of the Package.The District Court has astutely understood that such restrictions are not copyright restrictions, they are contractual obligations. They claim:
b) use the modified Package only within your corporation or organization.
c) rename any non-standard executables so the names do not conflict with standard executables, which must also be provided, and provide a separate manual page for each non-standard executable that clearly documents how it differs from the Standard Version.
d) make other distribution arrangements with the Copyright Holder."
"Based on the both the allegations in the amended complaint and the explicit language of the JMRI Project’s artistic license, the Court finds that Plaintiff has chosen to distribute his decoder definition files by granting the public a nonexclusive license to use, distribute and copy the files. The nonexclusive license is subject to various conditions, including the licensee’s proper attribution of the source of the subject files. However, implicit in a nonexclusive license is the promise not to sue for copyright infringement. [...] Therefore, under this reasoning, Plaintiff may have a claim against Defendants for breach the nonexclusive license agreement, but perhaps not a claim sounding in copyright. [...] However, merely finding that there was a license to use does not automatically preclude a claim for copyright infringement. [...] The condition that the user insert a prominent notice of attribution does not limit the scope of the license. Rather, Defendants’ alleged violation of the conditions of the license may have constituted a breach of the nonexclusive license, but does not create liability for copyright infringement where it would not otherwise exist."Apologies if I go all geeky and unprofessional here, but ZOMG! The implications for this ruling are huge. The District Court alleges that there should be no presumption of a copyright infringement claim, and that such claim should be proven before the plaintiff can make its case. If they cannot provide evidence that such a claim may be successful in court, then the Jacobson can only rely on the contractual elements of the licence in order to seek redress; namely, the failure to place attribution notices is not enough to make a copyright claim, but a contractual one.
An Australian teenager took forty minutes to crack the pornography filter provided by the Australian government, according to news.com.au. This will hopefully blow up in John Howard's face, as he seems keen to be seen as taking tough action against the evils of the Internet.
A teenager interested in porn? Colour me surprised!
I have been meaning to to write about this column by Marina Hyde in The Guardian, but I wanted to keep some distance from it. While I welcome all sorts of articles that criticise technologies, I have been distraught by certain tone emerging in the supposedly more progressive sectors of the British media outlets, where we are seeing the type of Luddite claptrap exploited by the likes of the Daily Mail.
I have made my feeling about Second Life clear, but I resent those who protest against the entire technology based on a perceived attack on "the human soul" (whatever that is), or similarly fuzzy-sounding clichés. All new technologies are always met with fear by the gatekeepers of the time. I can imagine a hand-written pamphlet from the 1450's protesting at the disturbing moveable type printing press. The issue is that new technologies are usually neutral, and that the use given to the technology will often be that which reflects the society in which it develops. Virtual worlds are not disturbing per se, the way we use them could be. However, the opposite gushing mindless technophile adoration of all things Second Life should be met with similar scepticism.
I was similarly struck by a sudden urge to throw something at my digital receiver when I heard an interview by Luddite-In-Chief John Humphrys with Vint Cerf on Radio 4's Today program. It dawned on me that we are seeing a marked resurgence of technophobia in the British media, and that Hyde's piece is only a symptom of the general malaise. The interview centred around the topic of Internet regulation, and I have to applaud Cerf on masterfully dealing with the creeping paranoia displayed by Humphrys. The interviewer tried to make a point that perhaps Cerf should be feeling a bit responsible by the invention of the Internet, just like some of the scientists working on splitting the atom felt responsible by nuclear weapons (I won't even comment on the equating of the Internet with WMDs). Cerf's reply was that the Internet is more analogous to roads. Those who invented roads cannot be in any way held responsible for whatever is built around them. Cerf similarly made the brilliant point that the Internet is just a reflection of society, if we find disturbing things online, should we be concerned about the society that spawns them, or by the medium that distributes them?
I'm still trying to figure out why is it that some in the mainstream media hate Web 2.0 so much. YouTube is presented as the example of everything that is wrong with society, a place where hoodies make their threats, and happy-slappers rule the digital waves. To these people, the Internet as a whole is filled with filth, and "something should be done about it". Humphrys kept pleading for some form of far-reaching regulation, "where do we draw the line" he asked. The answer according to Cerf was simple. It can be done, it has been done. By China. You may have heard about the Great Firewall of China, right? That is one way of doing it. If you want to regulate the Internet, that is the only model that really works.
Vint Cerf is now one of my heroes.
I have received this press release where yours truly will be speaking.
WIPO Seminar to Address Digital Rights Management Technologies
Geneva, August 27, 2007
MA/2007/30
The World Intellectual Property Organization (WIPO) is hosting a Seminar on Rights Management Information at its Geneva headquarters on September 17, 2007. Rights management information (RMI) consists of metadata used to identify digital content and owners of rights, and to express licensing information in digital form. The seminar will explore the relevance of RMI, survey emerging technologies and standards, and identify challenges affecting copyright owners, Internet users and intermediaries such as search engines. The seminar will also address crucial questions such as ownership, licensing and management of IP as well as the tools used to manage creative content and identify users and owners.
RMI is increasingly relevant and important to online content distribution. The technologies used to manage rights information have been improving in recent years through increased sophistication in metadata schemes and development of standards. For example, RMI can help users to customize their searches and engage in effective and flexible licensing agreements with right owners. Moreover, the rise of User Generated Content (UGC), the growth of new online licensing tools such as Creative Commons, and the growing popularity of blogging and social networking, offer a promising horizon for use of RMI in increasing copyright compliance while providing users greater functionality and flexibility to access and use content.
The program and information on the seminar, which will be in English, are available at http://www.wipo.int/meetings/en/2007/sem_cr_ge/. The event is free of charge and open to the general public. For registration, please complete the on-line registration form at http://www.wipo.int/meetings/en/2007/sem_cr_ge/registration.html .
Journalists requiring further information or wishing to attend this event are requested to contact the Media Relations and Public Affairs Section at:
Tel: (+ 41 22) 338 81 61, 338 95 47
Fax: (+41 22) 338 82 80
E-mail: publicinf@wipo.int
On Day 3 I attended the Identity workshop organised by James Grimmelmann from New York Law School and Caitlin Hall from Yale Information Society. This was a surprisingly good and fruitful session, not surprising because of the organisers, but because workshop format can be quite uneven.
The small number of participants meant that we were able to engage in a detailed discussion on the issues of identity in virtual worlds. We agreed that one of the main functions of identity is that of reputation management, both in the online and off-line worlds. Amongst those present was a Korean judge, who commented on some of the fascinating rulings coming out of Korea with regards to virtual identity. For example, there have been cases of online raids that have spilled over into the real world because many people play in the same Internet cafes. Another case cited was a situation that explored the complex legal interaction between virtual identity, account and the person behind it. People have separate accounts with all sorts of avatars, so can one identify and circumscribe liability to the user, or can it be instanced to a specific avatar? In this particular case an avatar in Lineage was banned from the game, but the user had four accounts, which were all banned as well. The user sued to get only one of the accounts banned, but the appeals court decided in similar line to the first instance. However, the Korean High Court was asked to decide, and in their final ruling only one account was banned, and the other three were allowed to remain.
This is mind-blowing stuff, and it prompts one to try to find out more details about the growing game-related jurisprudence coming from Korea.
Last night we were treated to a sumptuous and delicious dinner at Singapore Zoo, and then taken on a night safari. Tigers, lions, hippos, giraffes... but no gnus. Oh yes, there were no velociraptors sighted on the tour. As a Costa Rican, I'm always conscious about the inherent dangers built into wild-life tours.
Understanding Virtual World Inhabitants. Rather interesting session about social research on virtual worlds. The panel included Henrik Bennetsen (Stanford Humanities Lab), Ian Lamont (Computerworld), Thomas Malaby, (University of Wisconsin Milwaukee), and Aleks Krotoski from the Guardian's Games Blog. The discussion centred on the research conducted on the many types of research conducted on MMOs and virtual worlds, and Alekx gave data on gender distribution, (roughly 80%-20% in most games, but it is more equal in SL and WoW). I have this theory that those games are indeed popular BECAUSE they are the ones with the real women, but I did not want to put it forward to the panel. Interestingly, games like EVE Online have gender distributions of 95% males (it's all about the ships and explosions).
Space, Place, and Culture Inside Virtual Worlds. Spaces, architectures, property in virtual worlds, dealing with issues of architecture, design, input and information in-game. There was a lot of discussion on the management of the concepts of space in worlds where the concept does not necessarily mean the same as it does to us, and where one can build different space-time continua (or is it continui?)
My favourite presentation in this panel was actually one that did not fit in it. Jeff Malpas, a philosopher with the University of Tasmania, gave one of the most trhougt-provoking and challenging talks of the conference. He was interested in talking about the underlying principles for the analysis of virtual domains, and he began by challenging those present about their preconceptions, or to be more accurate, their lack of proper analytical frameworks when dealing with some of the research subjects involved. His research interest lies mostly on the philosophy of place and the structure of space. I agree that there is a marked lack of a conceptual framework, but I disagree that there is so much of a methodological quagmire. Despite protestations from philosophers, some people conducting research in the area do know what they are doing, and they are using tried and tested methodological tools from their disciplines.
He made a mention about the autonomous nature of virtual worlds from the real world, and he commented that there is no such thing, which seemed to generate certain animosity from parts of the audience. Virtual worlds are tied in with real worlds (I agree thoroughly with this). He did mention Hobbes and social contracts, and how these may explain regulation and the acceptance of in-game rules governing virtual worlds. Players, by taking part, express their consent on this social contract. I found this part rather less straightforward. I'm suspicious when philosophers mention Hobbes and not Rousseau when talking about social contracts. Besides, the philosophy of law has moved considerably since then, but I digress. His last point was about the polictics of the game, why should worlds be democratic? Why should there be any sense of democratic entitlement by players?
Yee Fen Lim, presented an excellent legal analysis of looking at virtual land with the same tools awarded to real land, and looking at how property is defined in common law. I'm not sure I agree, but it was thought-provoking.
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