Lawgarithms

June 13th, 2009

Six things to know if your Facebook username has been squatted

Posted by Denise Howell @ 8:34 am

Categories: Defamation, Identity, Live Web, Right of publicity, Social networking, Trademark

Tags: Facebook, Facebook Usernames, Squatting, Denise Howell

Here are some things to bear in mind about username squatting on Facebook.

1. I’m guessing Mike Arrington can get this fixed with a phone call or two. (via Dave Winer) If you’re not him…
2. You may have missed the fact there was, before username registration opened up, a form to complete for “preventing [your] trademarks from being registered as usernames.” That form is now closed, and links off instead to Facebook’s non-copyright IP Infringement Form. (Given its wording and stated purpose, I doubt it would have helped with non-trademark-registered individual names anyway.)
3. Facebook (like Twitter, etc.) is not ICANN, and the UDRP has no application to its vanity URLs. Facebook’s terms of service, however, mandate that users not “take any action on Facebook that infringes someone else’s rights or otherwise violates the law.”
4. Many jurisdictions, (including California where Facebook is headquartered), restrict or prohibit unauthorized use of a person’s “name, image, likeness or other unequivocal aspects of one’s identity.”
5. It’s not “squatting” if someone else happens to share an individual’s name and was able to register it or a variation.
6. All that said, it seems one’s first recourse as the victim of a username squatter is the aforementioned non-copyright IP Infringement Form.

I’d be interested in hearing about people’s experiences with this — whether it turns out to be streamlined and effective or frustrating and a pain. Let me know and I’ll update.

Previously: Chris Pirillo is socialsquatted; does the law care?

June 11th, 2009

Napster and the "The more things change" rule

Posted by Denise Howell @ 9:05 am

Categories: Copyright, DMCA, DRM, Lawsuits, MGM v. Grokster, P2P, Video

Tags: Entertainment, Napster Inc., DRM, DMCA, Business Models, Denise Howell

Drew Wilson at Zero Paid points out that Napster celebrates its 10th birthday this month. The Globe and Mail takes a deeper look in its Download Decade series. In the last decade, iTunes, Amazon, and various subscription music services have demonstrated there’s a vast audience more than willing to pay for entertainment downloads given the right mix of value and convenience, though pricing and freedom from DRM remain sticking points. At the same time, lawsuits against individual alleged file sharers march forward, and the entertainment industry has not relented in its pursuit of what it perceives as Napster’s successors (e.g., Pirate Bay, Real DVD). Which prompts me to wonder: in the ten years since Napster sent the entertainment industry its wake-up call, has anything fundamentally changed?
[Update:] Or as Bob Lefsetz puts it: “So I just don’t understand this ten year period. What did the rights holders prove?”

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June 2nd, 2009

Microsoft's Bing playing fast and loose with fair use?

Posted by Denise Howell @ 8:53 am

Categories: Copyright, Search, Video

Tags: Microsoft Corp., Video Search, Image Search, Beet.TV, Kelly v. Arriba Soft, Perfect 10 v. Google, Fair Use, Litigation, Andy Plesser, Fred von Lohmann

Beet.TV’s Andy Plesser asks: is Microsoft’s Bing search playing fast and loose with fair use? Specifically, Andy points out that Bing displays “live,” or perhaps more accurately “dynamic,” thumbnails in its video search results, and users can “watch the entire video an extended excerpt [see below] as a thumbnail, with sound.” Andy notes Bing “appears to pull a media RSS feed which is stripped of advertising overlays,” but “does provide a link to the original source.” “This is the broadest implementation of ‘universal video search’ by a major company we have seen,” he says.

Since 2002 it has been pretty well accepted in the U.S. that search engines can properly display thumbnails of images in search results under the fair use doctrine. Crucial to that result though is the fact search result thumbnails do not “supplant the need for the original” or harm the market or value of the images as used on the original site. (See the Ninth Circuit’s Kelly v. Arriba Soft decision.) In fact, thumbnail images in search results were found to help the market or value of the images by

guid[ing] users to [the site] rather than away from it. Even if users were more interested in the image itself rather than the information on the page, they would still have to go to [the] site to see the full-sized image. (Kelly)

Bing presents an interesting twist on this, and the question is: is displaying a thumbnail rather than full-sized video enough to trigger fair use? Here, I think the argument is stronger than in Kelly that the need for the original is supplanted. Full length Lengthy [see below] thumbnail videos with sound strike me as more likely to serve as a complete substitute for the original than a thumbnail image, and if I’m right, fewer users would be guided to the original site by the search engine (in fact, they’d be discouraged from clicking through). The thumbnails also impair the value of the original by removing the originally included ads.

On the other hand, Bing’s video search could be fair use if the videos are embedded and/or inline linked rather than copied. (That doesn’t sound like what’s going on, particularly given the ad removal, but I need more info.)

I’d be curious to hear more from others, including Fred von Lohmann at EFF, about Bing’s video search and fair use.

[Update, 2:30 p.m.] As TechCrunch pointed out yesterday, Bing puts users two clicks away from a whole lot of video porn, again with the thumbnail/full video/full sound scenario (though I didn’t do an extensive survey, the couple of thumbnails I clicked through required you to click further to “play the [full size — no tittering now] video at the original site” rather than staying on Bing). Adult entertainment producers can be among the most strident objectors to search engines hurdling their paywalls and providing access to their otherwise for-pay content, as we learned a few years back in the Perfect 10 v. Google litigation. Perfect 10 involved still images only, and Google won, as Jason Schultz describes here. Bing’s porn thumbnails are significantly more….enhanced. ‘Scuse me while I reinstate safe search before my kid wanders in.

[Update, 3:36 p.m.] As noted in the comments here and in an update to Andy Plesser’s original post, it’s not yet clear exactly how much of each video gets played in the thumbnails, and whether this varies from video to video or source to source. From what I’ve seen of the thumbnails they play enough of the original to prompt obvious fair use concerns.

May 30th, 2009

Video helps to quantify "fair"

Posted by Denise Howell @ 8:46 am

Categories: Copyright, Mashups, User generated content, Video

Tags: Best Practices, American University, Center for Social Media, Program on Information Justice and Intellectual Property, Mike Madison, Denise Howell

Did you know that American University has a Center for Social Media? (Part of its School of Communications.) They have a great collection of fair use resources, including “Remix Culture: Fair Use Is Your Friend,” a video that goes along with the Code of Best Practices in Fair Use for Online Video, released last July by the Center for Social Media and AU’s Program on Information Justice and Intellectual Property.

As Professor Mike Madison puts it:

Among other things, the best practices approach is one way of rendering concrete an emerging sense that fair use in copyright law is neither as radically indeterminate nor as toothless in operation as the conventional wisdom might suggest….

The best practices approach is not a panacea, and it is far from costless. Producing these statements and working with gatekeepers to acknowledge them is time-consuming, challenging work. And there is no assurance that if tested in court, a copyright defendant’s reliance on a Best Practices approach or publication would be persuasive to a judge or jury. The hope, however, is that the more robust the set of Best Practices followed by creators in these fields, the less likely it is that litigation will ensue.

Positive steps toward building law that works.

November 8th, 2008

Barack Obama is male, taken, and CC licensed

Posted by Denise Howell @ 10:13 am

Categories: Blogging, Copyright, Licenses, Social networking, Trust, User generated content, Voice

Tags: Creative Commons, John McCain, Barack Obama, Digital Media, Consumer Electronics, Personal Technology, Denise Howell, Flickr, Twitter, Camera Phones

I’ve been following Obama’s tweets for awhile, but had neglected the President-elect’s Flickr account until this morning when the Today Show featured some of the great behind-the-scenes election night shots posted there. A lot of these look like they were snapped on a staffer’s camera phone (digital SLR, actually). The U.S. will soon swear in its first President ever who is fluent in online communications, and that does indeed fill me with hope. As does the fact the President-elect’s Flickr photos are Creative Commons licensed. (If you haven’t already done so, you can peruse Obama’s savvy technology policy positions here.)

(Image by Barack Obama, CC Attribution-Noncommercial-Share Alike 2.0 Generic)

October 8th, 2008

Mail Goggles: an idea that goes well beyond drunk emails

Posted by Denise Howell @ 10:43 am

Categories: Blogging, Compliance, Copyright, Defamation, Lawsuits, Live Web, Trust, Voice

Tags: Google Gmail, E-mail, Blogging, Cloud Computing, Internet, Online Communications, Jon Perlow, Denise Howell

There’s a new GMail Labs app: Mail Goggles, by GMail engineer Jon Perlow:

When you enable Mail Goggles, it will check that you’re really sure you want to send that late night Friday email. And what better way to check than by making you solve a few simple math problems after you click send to verify you’re in the right state of mind? … Hopefully Mail Goggles will prevent many of you out there from sending messages you wish you hadn’t. Like that late night memo — I mean mission statement — to the entire firm.

Jon’s idea is lighthearted and fun, but when you look past the humor and consider it more broadly it’s quite brilliant. The current climate of panic is not confined to the financial markets. Corporate legal departments are bombarded with articles and concerns about online corporate communications, liability and more liability. The tug-of-war between PR/communications professionals and in-house legal continues to escalate as it becomes idiotic (if not impossible) for companies to remain on the sidelines of the Live Web. How do you train people to address the IP, defamation, and other legal concerns involved in free-flowing Web dialogue? Must every blog post and wall entry be vetted by a team of lawyers?

Expanding on Jon Perlow’s Mail Goggles idea sounds like a great solution. I like the notion of a straightforward and unburdensome series of questions as precursor to "publish." Instead of math problems, people could be asked to briefly confirm they’ve cleared rights on images, protected confidential information, and complied with policies on the quality of discourse and information provided. If uncertain on any of those fronts, they could be reminded what to do next. While a cookie-cutter approach couldn’t possibly address every legal nuance and pitfall, it could at least act as a sort of triage, speeding innocuous items out the door and letting the moderation/review process hone in on more complicated situations.

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July 25th, 2008

Jennifer Leggio unpacks demand letter over "branded community"

Posted by Denise Howell @ 8:39 am

Categories: Blogging, Trademark

Tags: Trademark, Blogging, Cease And Desist, Jennifer Leggio, Denise Howell

Over at ZDNet’s Feeds, Jennifer Leggio walks us through a cease and desist email she recently received. The email suggested her blog’s use of the term “branded community” might constitute trademark infringement. It’s a good object lesson about paying attention to cease and desist letters but not always accepting them at face value. All too often, their legal weight is less than substantial.

(Image by Carolyn Coles, CC Attribution-2.0)

July 2nd, 2008

Care to spend your holiday weekend policing directory listings?

Posted by Denise Howell @ 11:57 am

Categories: Anonymity, Identity, Privacy, Social networking, Trust, Virtual worlds

Tags: Reunion.com LLC, Numedeon, Inc., Whyville, Privacy, Identity, David Lazurus, Ray Everett-Church, Denise Howell

I’m not a fan in general of sites that create a listing or profile for you, hoping you’ll eventually claim and/or correct it. This tactic, neither user-centric nor user-driven, is insidious for at least three reasons:

1. inaccuracies proliferate,
2. privacy is frequently jeopardized, and
3. users are required to invest considerable time and supply yet more personal data in an effort to remedy 1 and 2.

David Lazarus gives examples of these sorts of problems in his Los Angeles Times piece today, Social networking site divulges child’s personal information. He tells of a mom who looked up her Reunion.com listing just to see what it might say, and learned it included her toddler son’s name and their family’s home town: things she would rather not have readily associated with one another. This occurred even though Reunion.com says it creates its listings only from “publicly available” information, including that purchased from a data broker. When the Times came calling, Reunion.com removed the reference and now says “measures have been put in place to make it easier for people to have information deleted from the site,” though I don’t see much here that bears this out.

Lazarus tapped privacy guru Ray Everett-Church for his thoughts on the matter. There goes the weekend:

[I]t’s up to parents to monitor online directories such as Reunion.com and make sure their kids’ names aren’t present.

Everett-Church also suggests parents do everything they can to keep children’s information out of corporate databases — presumably by using false names when subscribing to magazines, using online services, etc.

There are market opportunities around these pain points. The value of brokered data plummets once enough people game and/or end-run that system, whereas the value of systems and relationships that meet expectations and demands around accuracy, privacy, and time efficiency goes through the roof.

Elsewhere in the L.A. Times, Numedeon Inc.’s Jen Sun thinks there’s an upside to ruses run by some Whyville users who con others out of online goods and funds in exchange for nonexistent rewards: “It’s a learning experience for the victim not to be so gullible, not to be motivated by greed, because the scammers use greed against you.” I hope we don’t have to wait for all the nine year-olds to grow up in order to figure this stuff out.

(Image by LabGP & SigOther’s, CC Attribution-2.0)

June 16th, 2008

Overly restrictive A.P. quoting guidelines risk winning battles at the war's expense

Posted by Denise Howell @ 9:44 am

Categories: Blogging, Copyright, Licenses, Mashups, Video

Tags: A.P., Blogging, Saul Hansell, Media Bloggers Association, Denise Howell

Saul Hansell reports today that the Associated Press "will, for the first time, attempt to define clear standards as to how much of its articles and broadcasts bloggers and Web sites can excerpt without infringing on The A.P.’s copyright."

The problem with “clear standards” is that as Tim Wu (quoted in the article) correctly points out, the legal standard is unclear, and subject to interpretation on a case by case basis. There are instances when reproducing the entire work (or large portions thereof — “Fisking” we used to call it, seems like eons ago) with sufficient commentary is fair use. The A.P.’s vague statement that it wants to police what appears to be reproduction for reproduction’s sake as opposed to commentary, thus is a fair representation of what it’s entitled to do by law; anything more specific might not hold up.

Given this, it’ll be interesting to see what the A.P. cobbles together with the Media Bloggers Association, which of course does not act for and can’t bind the whole blogosphere and Web. If, as the statements to Hansell suggest, it’s as restrictive as purporting to make brief direct quotations against A.P. policy, the A.P. will either have to backtrack or try to get judicial buy-in on a policy that in all likelihood would be deemed overbroad.

(Image by SideLong, CC Attribution-2.0)

Related: Mike Arrington, Here’s Our New Policy On A.P. stories: They’re Banned, and all stories and posts linked from there; Techmeme re same.

May 24th, 2008

Section 230 to Twitter and others: Delete away

Posted by Denise Howell @ 12:15 am

Categories: Defamation, Live Web, Social networking, User generated content

Tags: Immunity, Twitter, Section 230, Denise Howell

Community and content management don’t void a site’s immunity under Section 230 of the Communications Decency Act. Participation in an unlawful act does.

I was thus taken aback by the legal analysis included in Wired’s/Betsy Schiffman’s post about Ariel Waldman and Twitter (Twitterer takes on Twitter Harassment Policy):

John Dozier Jr., a managing partner at Dozier Internet Law, says Twitter may have risked its immunity under the Communications Decency Act the moment it “edited” or altered content on the site. (An “edit” could include any sort of alteration, such as promotional placement or displacement on the site.)

“If they’ve edited content based on their subjective perspective, they put their immunity at risk and virtually their entire online business, because then they’d be liable to defmation [sic] claims or anything else that a publisher would,” Dozier says.

What’s at stake in the Twitter-Waldman discussion, as I understand it, is not editing or alteration but removal: something squarely protected by Section 230. (To be clear, editing and alteration don’t per se void the immunity, either.) As Professor Eric Goldman (a Section 230 scholar and frequent analyst) put it in a recent, unrelated post:

47 USC 230. Many people operate under the outdated myth that a site must choose to be either a publisher or a passive conduit. Fortunately, the law facilitates heterogeneous approaches to UGC. Per 230, a [site owner] isn’t liable for third party content with limited exceptions. Ownership doesn’t matter; editing doesn’t matter, prescreening/policing doesn’t matter. …

Evan Williams and co. at Twitter haven’t been invoking Section 230 as a basis for their decision not to remove certain complaint-generating submissions or their author; let’s not start doing it for them.

(Image by carrotcreative, CC Attribution-2.0)