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.

December 19th, 2007

Court tosses suit against Avvo, concluding algorithmic ratings are protected speech

Posted by Denise Howell @ 12:06 pm

Categories: Free speech, Lawsuits, Live Web, Search, User generated content

Tags: First Amendment, Avvo, Google Inc., Denise Howell

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.

June 18th, 2007

Global legal challenges: General Counsel Forum, Stanford's E-Commerce Best Practices conference

Posted by Denise Howell @ 5:34 pm

Categories: Blogging, Compliance, Conferences, Copyright, DMCA, Free speech, Lawsuits, Patent, Search, Software

Tags: E-Commerce, Stanford, General counsel, global business, Google, MySQL, Oracle, Universal Studios

(Mark Lemley, Maren Christensen, Daniel Cooperman)

There’s a group of high profile in-house counsel and legal luminaries who participated today in the General Counsel forum at Stanford Law School’s Fourth Annual E-Commerce Best Practices conference, including:

Mark Lemley, Stanford Law School and Keker & Van Nest LLP

Maren Christensen, Universal Studios

Daniel Cooperman, Oracle

Clint Smith, MySQL

Kent Walker, Google

Ian Ballon, Greenberg Traurig

(Clint Smith, Kent Walker, Ian Ballon)

The session focused on legal issues related to doing business globally. My notes follow.

“Being a GE company has turned out to be a blessing in disguise, and if they ask you, tell them I said that.” Maren Christensen, on having lots of resources to address developing legal issues as they arise.

MySQL’s Smith, after Daniel Cooperman discussed Oracle now having a blogging policy: “I decided last week not to have a blogging policy.” “It’s more important to me to have a really good external communications policy. The same rules should apply. I try to lift it up in terms of generality.”

Google’s Kent Walker: “For us, we have a culture of innovation. At the same time, we have a very decentralized, participatory kind of company. It’s out of that consensus that we try to get something. It’s a process of evolution and pulling all the best ideas to the fore.”

Question: what percolates up to the GC level, and on up to the CEO?

Kent Walker: We need to keep morale high and at the same time be responsive to clients. It tends to be somewhat reactive. 50% of our revenue is international and that creates a whole new class of problems. You find yourself drawn into problems that arise when, for example, you’ve managed to insult the King of Thailand.

Clint Smith: Using IP in our contracts to strike the appropriate balance is probably the most important thing we do.

Daniel Cooperman: It’s quite important that you stay current and can anticipate the CEO’s decisionmaking process. It’s up to the GC to take the initiative to come forward and raise legal issues with the senior exec team concerning the things that are on their desks. Identifying experts both within and outside the company is important to getting projects done efficiently. In the area of keeping you up at night, the global nature of business ranks high. You can communicate policies, but not always be certain the policies will be communicated effectively and followed in the heat of the moment. General Counsel are also gatekeepers according to the SEC and are charged with getting the Board the information they need and making sure the Board is consulted regularly. The whole area of corporate governance has undergone a major change in the last 5-8 years; GC’s now have potentially criminal exposure if they get it wrong.

Maren Christensen: “The three main things that keep me up are: piracy, piracy, and piracy.” If we can’t find ways to stem the tide, we are going to go the way that the record companies have gone, and other companies before us. Maren travels the globe regularly to address these issues.

Kent Walker: On the structural side, every time a company goes international there’s an immediate tension. You need to have teams in those regions. Once you empower those folks, there’s an immediate tension between the folks in the U.S. and the folks on the ground, in-country, who probably want to manage things in a slightly different way. Substantively, particularly on the Internet, we have a single global platform yet hundreds of different nations and thousands of different cultures all drinking out of the same pool. This feels like one of the most important things we’re working on internationally.

Clint Smith: We have employees in more than 30 companies, and handling the IP, the options, the employee withholdings is quite a challenge for such a relatively small company.

Daniel Cooperman: “There are alot of things you can’t do in France.” Re implementing “whistleblower hotlines” as requires under Sarbanes-Oxley.

Maren Christensen: One of the greatest challenges of doing business globally is actually knowing what’s going on in all the companies in which you do business. For me that means at least a weekly call with the senior lawyer in every country and for every one of the business lines. We’ve just started up a new business, a new international studio headquartered in London, which is going to be a lot of fun, but it’s one of those things that you need to be sure is all done right. You need to be able to count on the people on the ground and in the trenches, and talk to them a lot.

Question from Mark Lemley about management style for an international business. It sounds like each country gets its own set of procedures?

Maren Christensen: “Particularly France.” (Laughs.) Discusses DVD copying case Universal won in France. “We had a lot of good meals along the way…” (More laughs.) Discusses the fact they have and keep hiring local legal experts around the world.

Daniel Cooperman: points out that even jurisdictional differences within the U.S. complicate matters. Least common denominator approach is appropriate in many cases, but hard to apply in areas like privacy, where passions are high on all sides of the issue. Participants in this industry play a very active, a proactive role, in encouraging government officials to address jurisdictional disparities in the law.

Kent Walker: The EU has its own ideas about how long an Internet company must keep log data…this is the kind of thing that can wind up driving a global standard. We like to keep our employees out of jail (a real issue for both eBay and Google), and yet being a force that drives change. We’ve had issues with our hosting services (Blogger; YouTube) globally: Ghandi pole dancing in India; insulting the King of Thailand. Things that on their face may seem fine to us raise difficult, philosophical, cultural issues in other countries. We’re working very diligently with courts and governments to figure out what all the right answers are here, but it’s not always very clear.

Audience question re enforcing their company’s code of business ethics and conduct:

Daniel Cooperman: We meet regularly to discuss the issues, we call them cases, that have come up under the code and the kind of punishments, disciplinary measures we’re taking. You have to have a set of principles that guide the company globally. There are no set of principles that stop at a nation’s border.

Kent Walker: When you try to roll that code out in Germany, France, etc., you may need to adjust the code around the margins.

Maren Christensen: Places like China can of course be a problem too. Our problem there (well, we have many problems there), is with manufacturers and licensees to make sure that we don’t have child labor and other conduct that our code of conduct does not abide.

Daniel Cooperman: Some countries are extraordinarily corrupt, no matter how you look at it, and training people on your code of conduct, that this is not the way a U.S. company can do business, is very challenging.

Question from Michael Traynor about cases where injunctive relief has been the remedy.

Kent Walker: “Thank you Jay, wherever you are.” (Jay Monahan, who is “singly responsible” for the eBay/MercExchange outcome in the Supreme Court.)

Daniel Cooperman: We’re all delighted that the issue of mandatory injunctive relief in patent cases is off the table. We’ve got a ways to go, a number of major areas for patent reform.

Maren Christensen: We agree with that. You probably don’t think of patents being our lifeblood, but with digital distribution they’re increasingly important. Hats off to Jay.

Audience question re employee compliance with company legal policies.

Maren Christensen: discussed the importance of senior people actually showing up to emphasize the importance of training. I don’t see this getting any better by the way.

Daniel Cooperman: There’s a dizzying array of these policies, it’s difficult for employees to absorb it all. Keeping it lighthearted and fun helps. Having an effective tone at the top is vital, emphasizing the importance of these policies, and making sure there are consequences for violations.

Kent Walker: All those disclaimers and warranties on your lawnmower don’t actually make it safer.

June 10th, 2007

Section 230 immunity for case-based identity/reputation systems?

Posted by Denise Howell @ 12:23 am

Categories: Attention, Defamation, Identity, Lawsuits, Search, Social networking, Trust, User generated content

Tags: Section 230, Denise Howell, Avvo, Joe Andrieu, John Henry Browne, Eric Goldman, Roommates.com, case-based identity

As an example of someone who thinks he owns his reputation data, here’s lawyer John Henry Browne, threatening to sue new lawyer rating service Avvo over a rating he says is unjustifiably low. That link comes via Joe Andrieu on the Project VRM list, who earlier this week had these musings about reputation as case-based identity:

Perhaps considering reputation as case-based identity, we can start to outline the components required for such case-based systems to work:

* transaction data (potentially including opinions of others)
* algorithmic evaluation
* refutation process

These may not be the definitive requirements for a reputation system, but they seem to be present in the working systems I know of and are perhaps a good starting point.

For the record, I think it is an even bet as to whether or not personal opinions can be effectively integrated as “transaction history” in a case-based identity system, given the challenges of emotions, grudges, slander, and the non-provability of opinions.

It is also a near certainty that for certain types of case-based identity that the user will never be able to actually fully control the data-set. For example, I could significantly improve my credit score if I had read-write control over that data-set. Unfortunately, that would render the current system completely ineffective. Perhaps a new one could emerge, but there are other domains, such as criminal records, etc., where an authoritative reputation requires a data-set with limited or heavily moderated user control–otherwise everyone would erase those pesky traffic violations.

Against this context, the kind of ownership and control over one’s reputation data attorney Browne and others are threatening to enforce in court may find itself running up against Section 230 of the Communications Decency Act, which shields providers of interactive computer services from liability for simply filtering and/or distilling information provided by others. Though a California district court recently skirted the issue of whether Section 230 immunizes search engines for the reputational consequences of their ranking and placement algorithms, the situation is analogous. It’s interesting that unlike the search engine cases, these attorneys aren’t complaining about reputational slippage; they’re saying Avvo’s rating system has harmed them from the get-go.

What’s not clear from the lawyers’ demand letter is the legal basis for the threatened lawsuit. Defamation I assume, but what’s defamatory? Individual components of the rating or the rating itself? Avvo says it merely synthesizes data from third party sources, including the subject lawyers if they choose to participate in the process (e.g., by claiming and editing “unlocked” portions of their profiles or reporting incorrect data). The key question for Section 230 purposes will be whether Avvo and other reputational ranking systems are embellishing or enhancing third party material (or creating new material) by virtue of the way it is collected, processed, and displayed. (See Professor Eric Goldman’s excellent post on the recent Ninth Circuit decision/”hairball” that is Fair Housing Counsel v. Roommates.com.)

[Update:] Declan McCullagh has a good piece on Avvo, particularly the section on the difficulty of rating lawyers. Declan points to some of the more eye-opening ratings for folks like U.S. Supreme Court Justices: “When asked about Justice Ginsburg’s lackluster rating, [Avvo CEO Mark Britton] replied, ‘Arguably, her rating is a bit less efficient.’” Arguably. Arguably, things like peer endorsements and client ratings should operate, um, differently when it comes to jurists or legal scholars.

Speaking of which, my own unedited, uncontributed-to rating is 6.3 — the same as Larry Lessig’s, and just two clicks below Justices Ginsburg and Alito (that we all have the same “experience” rating — 3 — is nothing short of comical; Avvo also has my location wrong, which tells me their last poll of CA bar information was several months ago).

Adding to Declan’s thoughts on the slippery nature of this kind of reputation ranking, it will be interesting to see whether and how Avvo will attempt to police the inevitable gaming of its peer endorsement and client rating components. I haven’t yet heard of LinkedIn (which also has an endorsement mechanism) having to contend with this issue, but there are some key differences: people choose to be in LinkedIn (lawyers are in Avvo whether they like it or not, and there doesn’t appear to be an opt-out), and LinkedIn isn’t rating anybody, or attempting to tell would-be clients or customers “how well” a member could handle a piece of work.

[Update, 6/14]: The suit has been filed, see John Cook’s coverage and Regina Mullen’s discussion/analysis of the complaint.

[Update, 6/18]: Santa Clara law professor Eric Goldman weighs in on the Avvo case, Section 230, and Roommates.com:

Let’s put all of this aside and focus on the doctrinal issue that seems preeminent: 47 USC 230. To the extent that the plaintiffs seek to hold Avvo liable under state consumer protection laws for third party content, this lawsuit should be cleanly preempted by 47 USC 230. As an example, I’m reasonably confident that eBay would argue vociferously that its numerical feedback rating is protected by 230 (among other doctrines).

But it’s hardly clear that Avvo gets the benefit of the statute. First, arguably, the lawsuit is based on the word choices that Avvo made in describing/characterizing the data and the output, not the underlying third party data. Second, this case goes straight to the doctrinal murkiness of the Roommates.com case. Recall Reinhardt’s reformulation that Roommates.com lost 230 protection because “Roommate categorizes, channels and limits the distribution of information, thereby creating another layer of information.” Isn’t this exactly what Avvo does too? I sure hope the Ninth Circuit cleans up the Roommates.com hairball before cases like this test its limits.

Also, Carolyn Elefant and I joined the named plaintiff John Henry Browne on the Lawyer2Lawyer show to discuss the case (MP3; feed). Carolyn made some great points about how the legal profession and its institutions (particularly state bar associations) have dropped the ball on making this kind of information accessible (implying I believe that even a system that may be less than perfect/still getting the kinks out is better than nothing).

March 20th, 2007

Dabble tops 9 million videos

Posted by Denise Howell @ 5:16 pm

Categories: Search, User generated content, Video

Tags:

I learned from Mary Hodder this afternoon that Dabble is well on its way to indexing its 10 millionth video (currently at 9,031,000 and counting).  Per Mary, this gives it the largest index of any video search and aggregation tool around.

October 22nd, 2006

On bet the company issues, it's far better to be a litigant than a bystander

Posted by Denise Howell @ 11:47 pm

Categories: Copyright, DMCA, Google library, MGM v. Grokster, Marketing, Mashups, Search, Social networking, Syndication, Trademark, User generated content, Video

Tags:

As I mentioned last week, the most telling insights for me on the news of Google's acquisition of YouTube came from EFF's Fred von Lohmann, who discussed the importance for a company like Google of participation in the judicial lawmaking process.  Members of Google's legal team underscore this point in their comments to New York Times writer Katie Hafner for her story, We're Google, So Sue Us:

Michael Kwun, a senior litigation counsel at Google, agreed that "the Geico case was very important." Mr. Kwun said that establishing a body of precedent was a priority for Google, especially as legal interpretations continued to evolve. "If we don’t at least litigate to the point where we get rulings on the issues that matter to us, we're left with less clarity in the law," he said.

Mr. Kwun has a gift for understatement.  Thanks Jason, for pointing me to the story.