April 23rd, 2008
Upcoming panel on exploiting the social graph
At a conference I attended last month on social media law (I have some interesting notes I’ll post soon), I was struck by how lawyers for social media giants such as Facebook, MySpace, Google, find speedy ways to accommodate powerful copyright holders on infringement issues. When it comes to concerns over exploitation of user data, however, their solution is to draft the most draconian terms of service imaginable (knowing no one pays real attention), consider themselves legally covered when user complaints crop up, and occasionally ratchet down the terms or otherwise execute a subtle course change when things begin to get ugly: as with Beacon, or Billy Bragg, or, presumably soon, Google Reader.
We’re going to further explore this topic in a panel I’ll moderate at OnHollywood on June 10th. What do you think about different approaches to managing user data? If none of the poll answers fit or you want to expand, please comment.
Loading …March 31st, 2008
Sparks fly over copyright at Tech Policy Summit
The group of copyright scholars and advocates gathered Wednesday at the Tech Policy Summit in Hollywood demonstrated that while copyright must function in a converged world, opinions on how it should function are as divergent as ever. The panel (pictured from left to right) consisted of Patrick Ross (Executive Director, Copyright Alliance), Fred von Lohmann (Senior Staff Attorney, EFF), Matt Zinn (VP and general counsel, TiVo), and moderator Doug Lichtman of UCLA Law School.
I. Copyright Policy
The primary bone of contention was the extent to which copyright law does and should leave room for permissionless innovation. Matt Zinn and Fred von Lohmann discussed the benefits of such a system:
Zinn: Fortunately, the Constitution got it right. Copyrights are not absolute rights. TiVo did not have to go to the rightsholders for permission [to build a product that allows flexible use of lawfully acquired copyrighted content]. If they’d had to, there’d be no DVR. With no DVR, there’d be no VOD.
Von Lohmann: In recent years, the law has begun to appreciate the value of organically derived genius, the wisdom of the crowds. The copyright system is doing a surprisingly good joyb of creating rights that leave room for the kind of diverse marketplace [Matt] was just talking about. iTunes, TiVo, iPods, Betamax: all devices that depend or depended on copyrighted works for a large portion of their value, and that’s a good thing. Copyright law in its current form seems to trust markets quite a bit. This is not the death of copyright as we know it. In the room between the overreaching desire of rightsholders for control and what the law provides, innovation blooms.
Patrick Ross, while conceding von Lohmann’s point that "there’s no moral, ethical, or legal right to a business model," sought to reframe the issue, saying it’s not about business models, it’s about copyright:
Asking and getting permission is a key part of the system. . . . Where you get into a problematic situation is where the rights are being so abused and no legal authority is controlling it.
Picking up on Ross’ defense of a permission-based system, Doug Lichtman challenged Matt Zinn on his assertion that TiVo could not have gotten permission had it asked first. He posited that TiVo would have been a value proposition for the television networks, and they would have been willing to partner with TiVo and give back a share of the enhanced value they would realize by meeting the audience demand for such a service. Zinn disagreed:
In Hollywood, it’s not just about the money. It’s about all the money.
Von Lohmann concurred:
Disruptive innovation does not get blessed in incumbent industries. When the music labels tried it with MusicNet, PressPlay, and all the other companies that are now smoking holes in the industry, it didn’t work.
He went on to point out that one reason incumbent industries shun innovation is their reluctance to cannibalize their other businesses: here, sales of videocasettes, DVDs, etc.
At about this point in the discussion, Jay Williams of the MPAA stepped up from the audience to suggest Matt Zinn was being philosophically inconsistent about intellectual property, since TiVo recently won a patent battle with Echostar/Dish Network. "What are the value of those patents? Aren’t they barriers to innovation?" Read the rest of this entry »
February 18th, 2008
Lawrence Lessig, congresscritter nominee
TWiL regular John Palfrey announced a great idea last week while we were recording the forthcoming episode: a Facebook group drafting Professor Lessig for a recently vacated Congressional seat. Says John, "It’s high time we had our first true Free Culture candidate for public office." The Facebook group is about to hit 2,000 members, and there’s an official Web site as well (get your badges here). Seems appropriate in an election season so unusually filled with promise for needed change.
For his part, Professor Lessig isn’t ruling anything out, telling Ars Technica, "At this point, I’m not really able to say anything. I’ve been kind of stunned by the push of many, and am away with my family this weekend to think things through." More from Ars Technica, TechCrunch, and Slashdot.
[Update, 2/20/08 6:51 a.m.] TWiL #12 went up yesterday.
[Update, 2/20/08 6:55 a.m.] Via Jonathan Zittrain, a new site from Professor Lessig, lessig08.org: "I have decided I want to give as much energy as I can to the Change Congress movement. I will decide in the next week or so whether it makes sense to advance that movement by running for Congress."
January 30th, 2008
Docstoc for law school (a.k.a. today’s young whippersnappers don’t know how good they have it!)
My goodness. Check out the impressive array of law school outlines and other law school and bar exam resources being amassed at Docstoc. Aside from being incredibly useful, my favorite thing about this service is its built in Creative Commons licensing. A perfect place to share form legal (and other) documents — as Marc Canter discussed wishing to do on a recent episode of The Gang.
Bonus link: Are Cease-and-Desist Letters Subject to Copyright?
P.S. You know you’re becoming an elder-blogger when:
- you’re just as apt to think MSM refers to methylsulfonylmethane as mainstream media, and
- you’re just as apt to think Idoru is one of your dozens of daily nutritional supplements as a William Gibson novel.
P.P.S. Don’t get me started on the elder hottie thing; dragonlike, I might just aim a hot flash in your direction.
(Image of Docstoc’s CEO and Pepperdine law grad Jason Lawrence Nazar by Brian Solis, CC Attribution-2.0)
January 26th, 2008
Follow-up: Build-A-Bear says it will take privacy suggestions to heart
There were lots of reactions to my last post about Build-A-Bear luring kids and parents into divulging personal information they might otherwise, in other contexts, guard more closely. While some responses channeled Scott McNealy, most seemed to get that my beef was not with the fact of the data collection, or the uses set forth in Build-A-Bear’s privacy policy, but with doing it in what amounts to a wolf-in-sheep’s-clothing manner. Here’s a sampling of the subsequent discussion:
- Cory Doctorow called the practice "private information seduction."
- The Consumerist agreed it "seem[ed] sort of…sinister."
- Skippy dot net reacted similarly to his in-store experience at Build-A-Bear.
- Andrew at Changing Way quipped that "the Bear can be more seductive than the Beacon."
- Curmudgeon-in-Training pointed out that "kids, and parents, are getting numb to this disclosure of very personal info for the most mundane of reasons."
- Izzy Neis (who blogs about "Online Communities, Entertainment, Kid Empowerment, and Media Safety") worried that "people forget about the kind of information they share about their kids."
- And Security Hitman observed that "corporations are setting an early expectation with young children that giving out personally information is okay. "
The good news is that shortly after posting my piece I heard from Dave Finnegan, Build-A-Bear’s "Chief InBearmation Officer." Kitschy executive designations aside, you’ve got to be impressed by a company that responds so quickly, directly, and receptively to criticism; I am, anyway. Dave had no problem with my posting our email exchange in its entirety, and you’ll find it after the jump. The upshot is I gave him several suggestions as to how I thought the situation could be improved, and he told me they "will definitely take [my] suggestions to heart," and "will review this information with [their] privacy committee." So, the company gets big points in my book for listening and responding to the conversation, and will earn bigger points still if the next time a birthday party brings me Build-A-Bear’s way, I join my son at the in-store kiosks and see my suggestions have been implemented. I’ll certainly let you know if that happens.
(Images by sarae, CC Attribution-No Derivs 2.0)
January 21st, 2008
Harvesting data from children with cuddly creatures and cutesy keyboards
And you thought Beacon is (was) creepy.
Yesterday I had my first experience at a Build-A-Bear Workshop store. Build-A-Bear, if you’re not familiar with it, is a publicly traded company headquartered in St. Louis, MO, with some 350 retail outlets worldwide. It’s irresistible to boys and girls alike, if the birthday party we attended was any indication. Kids can choose one of over 30 different styles of animal, stuff it onsite using big yellow machines filled with flying fluff, carefully add a small heart to bring the animal “to life,” and customize to their heart’s content (and their parents’ wallets’ horror) from a stupefying collection of sounds, clothes, shoes, and accessories that include miniature skateboards and MP3 players.
All good, clean — if decidedly consumer-culture focused, and potentially bank-breaking — fun. Until you get to the last step in the process, which had me nostalgic for (egad) the Cabbage Patch Kids. Who as I recall were discharged from their mythical birthplace without asking for their new owner’s home address.
You see, each Build-A-Bear critter is issued a “birth certificate,” which is generated after the kids — and hopefully their parents, though that didn’t seem to be making a bit of difference on the common sense front — visit a bank of computers. These are big orangey-purple affairs, sort of Dr. Seussian in presentation. The keyboard buttons include stars and other colored shapes to make data input all the easier and more intuitive for youngsters. In fact, the computer-plus-keyboard experience is very close (no doubt intentionally so) to something children and their parents might have experienced in a kids’ museum, library, or school. Before their new friend can get its birth certificate, the kids are prompted to enter a host of very personal personal information: birth date, home address, gender, phone, and email among them. Along the way is the option to “skip” some of this input, but unlike what we’re used to in the world of online retail forms, there’s no effort to communicate what data is “required” for the transaction to proceed, and what’s “optional.” The overall effect is to sideline the privacy-savviness that might otherwise accompany the parent and/or child. I sat there and watched parent after parent prompt their kids to flex their memory muscles and practice their computer skills: "Ok Timmy, now, what’s our address? What’s your birthday? Do you remember our phone number? Good typing!!"
It’s not until after the kids have given up all this data, most often with their parents help and lulled consent (though there’s no requirement that parents participate at all), that Build-A-Bear gives its customers a copy of its privacy policy, which comes tucked away in the packaging folks take home.
I really don’t have any problem with Build-A-Bear’s privacy policy, or the tie-ins with the virtual world (Build-A-Bearville) the company hopes your child will visit with his or her new stuffed friend. But though the policy looks good on paper, this is a case where the execution stinks. Parents and kids should not be urged or encouraged to give up personal data, and when they’re asked to do so there should be some up-front reminders as to what is happening.
Cory Doctorow likes to tell an anecdote about how today’s children are becoming more and more inured to invasions of privacy. In his case, children in line at Disneyland thought it odd when he refused to supply a fingerprint. Here, kids are learning it’s ok for a store to know quite a bit about them. Parents should make a stink about this sort of thing and be on the lookout for it.
(Bonus link: Kim Pallister, Can a stuffed bear hold the secret to game piracy?)
(Images by gitb and Brittany G, CC Attribution-2.0)
December 27th, 2007
iPhoning it in — in a good way
Anyone with lingering questions about the value of the iPhone for business should check out what’s on Supreme Court lawyer Tom Goldstein’s iPhone, a holiday greeting and iPhone ad parody from SCOTUSBlog (which was acquired in true tech start-up fashion by large firm Akin Gump):
Never has there been such an exquisite example of namedropping while poking fun at name droppers.
And while this may be tongue in cheek, it really shows off the professional value of a device too frequently written off as a consumer plaything.
December 24th, 2007
Christmas is a time for mashups
As I inevitably download "new" holiday music each year, it’s painfully apparent we wouldn’t *have* much new holiday music if it weren’t for sampling, remixes, remakes, and mashups. The iTunes List of 44 Holiday Songs for 2007 is testament to this fact, as are the many Christmas remixes and dubs dotting the ‘Net and the digital download inventory.
But all this Christmas cheer does not come cheap, especially for those who mix, mash, clip, and copy without jumping through Byzantine (if not impossible) licensing hurdles. Such artists may find their stockings stuffed only with costly lawsuits and astronomical damages liability. As Professor Patry wrote of the Bridgeport decision, "[I]n the end, it is creators of new sound recordings who build, transformatively on the works of predecessors who will suffer the most, and thereby all of us."
Even the likes of Disney are not necessarily immune. Do you hear what I hear? Namely, "War is Over" making a guest appearance in this Disney/Hannah Montana remake of "Rockin’ Around the Christmas Tree." (Starting at 1:50.)
Katie Wedell was kind enough to free "The List: 44 Holiday Songs for 2007" (whence Hannah/Ms. Cyrus wound up on my stereo) from the iTunes Store, should you care to browse. Keith Richards’ Run Rudolph Run is a must-have:
1. The First Noel - Josh Groban and Faith Hill
2. Mistletoe - Colbie Caillat
3. Rockin’ Around the Christmas Tree - Hannah Montana
4. Happy Xmas (War is Over) - Maroon 5
5. Run Rudolph Run - Keith Richards
6. Santa Baby - Kellie Pickler
7. Frosty the Snowman - Toby Keith
8. Season’s Greetings - Robbers on High Street
9. Have Yourself a Merry Little Christmas - Emmy Rossum
10. Let it Snow - Michael Bolton
11. All I Want for Christmas - Keith Sweat
12. Don’t Shoot Me Santa - The Killers
13. Run Rudolph Run - Billy Ray Cyrus
14. O Come All Ye Faithful - Katharine McPhee
15. Oh Come Oh Come Emmanuel - Joshua James
16. O Holy Night - Mandisa
17. God Rest Ye Merry Gentlemen / Feliz Navidad - Chanticleer
18. It Came Upon the Midnight Clear - Mannheim Steamroller
19. Silent Night - Lifehouse
20. On Christmas Day - Nazanin
21. What Child Is This - Michael W. Smith
22. Sleigh Ride - Relient k
23. Marshmallow World - Raul Malo
24. Jingle Bells - The Puppini Sisters
25. Do You Hear What I Hear - Yolanda Adams
26. Silver Bells - Mindy Smith
27. Wonderful Christmastime - Jars of Clay
28. The Dreidel Song - Sister Hazel
29. My Grown-Up Christmas List - Clay Aiken
30. Last Christmas - CASCADA
31. Santa Baby - Carter’s Chord
32. We Need a Little Christmas - Kimberley Locke
33. The Best Christmas - Christopher Cross
34. Ding Dong! Merrily On High - The American Boychoir
35. Santa Claus is Coming to Town - Bucky Covington
36. Here Comes Santa Claus - Tracy Lawrence
37. Silent Night - Sinéad O’Connor
38. Bring Me Love - Marié Digby
39. Christmas in Dixie - Trent Tomlinson
40. Have Yourself a Merry Little Christmas - Bebo Norman
41. I Saw Three Ships - Rick Springfield
42. Please Come Home for Christmas - Josh Gracin
43. Chanukah, Oh Chanukah - Tor Hyams and JKidz
44. Holiday Bounce - Yo Yo Yo Kids
December 19th, 2007
Court tosses suit against Avvo, concluding algorithmic ratings are protected speech
Lawyer rating start-up and nascent online community Avvo scored a big win yesterday when it convinced a Washington district court to dismiss a putative class action lawsuit filed last June. Avvo aggregates available attorney information, assigns subjective (and undisclosed) value to various factors, and comes up with a 1-10 rating. (Initially, Avvo rated every lawyer in its database. Shortly after its launch, and after the lawsuit was filed, Avvo responded to concerns about this practice and altered its approach.) Avvo’s ratings are thus generally analogous to Google’s PageRank: factors are weighted and a score is assigned. The lawyer-plaintiffs in the suit challenged the accuracy and validity of Avvo’s ratings and argued consumers would be misled by the flawed system. Avvo countered that the rating system yields no more than opinions entitled to absolute first amendment protection. The court agreed:
Avvo’s website contains numerous reminders that the Avvo rating system is subjective. The ratings are described as an “assessment” or “judgment,” two words that imply some sort of evaluative process. The underlying data is weighted based on Avvo’s subjective opinions regarding the relative importance of various attributes, such as experience, disciplinary proceedings, client evaluations, and self-promotion. How an attribute is scored and how it is weighed in comparison with other attributes is not disclosed, but a reasonable person would understand that two people looking at the same underlying data could come up with vastly different ratings depending on their subjective views of what is relevant and important. . . . Neither the nature of the information provided nor the language used on the website would lead a reasonable person to believe that the ratings are a statement of actual fact.
This is obviously good news for Avvo, and for any site that crunches variables to assign a rating. As Mike Gunderloy observed when the suit against Avvo was filed, this includes much of the Web 2.0 ecosystem. While Mike was concerned primarily about protections available to rating systems based on user (i.e. third party) feedback, it’s interesting to note that the court’s decision to dismiss the suit against Avvo was based solely on the First Amendment and not on Section 230 of the Communications Decency Act, which provides limited liability protection for assertions made by third parties. Section 230 played no role here despite the fact at least some of Avvo’s ratings are based on third party assertions, specifically “peer endorsements.” The Avvo plaintiffs apparently “disavowed any claim based on content that Avvo obtained from a third party,” and there was thus no reason for the court to consider or discuss Avvo’s Section 230 defense. Thus, as with the KinderStart case against Google dismissed earlier this year, this court found that an algorithmically generated opinion can’t be “wrong,” “inaccurate,” or “invalid,” and failed to consider the potential (ultimately probable) role of Section 230 in limiting claims of this kind.
November 20th, 2007
Kindling a controversy
Ed Champion is investigating whether certain bloggers included in Amazon’s Kindle launch were made “Kindle Blogs” without authorization or licensing. He cites two examples (Daniel McGowan and Cork Gaines) of bloggers who apparently are included in the Kindle Store without their permission. This surprises me. My personal blog Bag and Baggage is there in the Kindle Store too (I’m also quoted in Ed’s post), but under an express agreement. It could be the Kindle team had some misunderstanding about the ramifications of the noncommercial use restriction in certain Creative Commons licenses; the initial email I received about participating did reference my Creative Commons license, but neither McGowan nor Gaines seem to use Creative Commons so I’m at a loss as to what’s going on. In my case, Amazon had lots of communication with me about including Bag and Baggage, and crossed its T’s and dotted its I’s on the legal front.
[Updated 10:08 p.m.] Ed Champion has unearthed two more bloggers who are less than pleased with being Kindleized.
[Updated 11/22, 9:36 a.m.] Engadget reports the Kindle gave Amazon plenty to be thankful for, selling out the first batch in just 5.5 hours.
Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law. See her full profile and disclosure of her industry affiliations.
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