Category: Lawsuits
June 11th, 2009
Napster and the "The more things change" rule
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?”
Loading ...October 8th, 2008
Mail Goggles: an idea that goes well beyond drunk emails
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.
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 »
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.
October 15th, 2007
Are satellite shows and podcasts accessiblity-equivalent?
Robert Scoble is wondering whether accessibility laws may cripple videocasts (and presumably podcasts). Scott Bourne had an interesting (if inconclusive) post on the subject last year, and the head lemur posits that the touchstone (in the context of the Target case presently in the news) may be whether or not you’re doing e-commerce. I’m out of my depth with accessibility law, but the subject has certainly come up and intrigued us for the last two years in the legal session at the Podcast and New Media Expo.
My thinking, uninformed as it is, is that Web accessibility and video/podcast accessibility are different animals. Since podcasts aren’t going out over any FCC-regulated spectrum, perhaps their accessibility requirements (if any) should be similar to those applicable to satellite broadcasts. If you’re on top of those requirements or have further thoughts (e.g., perhaps satellite isn’t the proper analogy at all), please chime in in the comments. And while we’re at it:
Loading ...(Image by laRuth, CC Attribution-2.0)
October 8th, 2007
In the trenches with Live Web law at EFF's Bootcamp
If you’re doing business on the Live Web, get thee this Wednesday, October 10, to EFF’s Bootcamp, “a one-day session for Web 2.0 workers on user generated content:”
Does your interactive company have to contend with the maze of laws dealing with user privacy and publishing user content? Want to do the right thing by the online community that gives your business value, and still fulfill your legal obligations?
EFF is hosting a one-day session for Web 2.0 workers who handle issues arising from users and user-generated content. From DMCA to CDA to ECPA, the law surrounding internet content can be confusing, especially for the folks who have to decide on the fly whether to let something stay up or take it down, or whether to give their customer’s name to the FBI agent on the phone. Let us help.
This is an incredible and cheap (between $100 - $200) opportunity to learn how to spot and avoid trouble from the best of the best in this field: EFF’s staff attorneys. (If the registration fee is still too rich for your blood, then apply for one of the 20 available Google-sponsored scholarships, explained here.)
I am hard pressed to conceive of a Web-based communication platform, community, or business model that doesn’t need this kind of overview. For nine examples of why, check out Rafe Needleman’s 9 fun ways Web 2.0 startups can commit legal suicide, gleaned from an interview with Fred von Lohmann in conjunction with the upcoming event:
Von Lohmann’s two big takeaways: First, be sure you know when you’re stepping into a danger zone. Music? Financial data? Private information? Kids? Don’t let yourself think you’re more clever than another industry’s legal machine. Second, realize that no matter how hard you try to stay clean, ‘You’re probably doing something wrong already. For the most part it doesn’t matter, but something just might.’
For yet more examples of the legal minefields Web businesses must daily navigate, you might want to eavesdrop on Fred von Lohmann’s IP and Innovation Policy class at Stanford by way of its blog. Bring your Aleve; plenty of brain teasers there.
Bootcamp starts at 9:00 a.m. Wednesday at Fenwick & West in Mountain View. (Brilliant move by the firm, hosting this. I’m sure plenty of Fenwick’s existing clients are thrilled for the opportunity, and once EFF’s staff has had the chance to terrify educate all the non-client attendees, the stampede to sign the firm’s retainer letter will leave some wondering how they wound up in Pamplona.)
(Image by A. www.viajar24h.com, CC Attribution-2.0)
September 26th, 2007
Creative Commons, the Live Web, and quickie divorce info centers
Dennis Kennedy pointed me to Shelley Powers, who pointed me in turn to Slashdot and Professor Lessig. All concern a lawsuit pending in Dallas, TX against Virgin Mobile and Creative Commons concerning Virgin’s advertising use of a minor’s picture posted by the girl’s youth counselor to Flickr under a CC-Attribution license (which permits commercial use). The Flickr user/youth counselor/photographer is a plaintiff in the suit, contending Creative Commons failed “to adequately educate and warn him … of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use.”
Creative Commons has been sued for negligence, the catch-all of tort law. Someone is negligent when s/he fails “to act with the prudence that a reasonable person would exercise under the same circumstances.” The plaintiff posits that Creative Commons had a duty to warn about what commercial use is and the fact an “Attribution” license permits it. Creative Commons should have little trouble demonstrating that assuming it even owes such a duty, the duty was satisfied.
Putting aside for a moment the Texas wild card ["Texas courts have twice ... held that simply providing some legal forms (wills, but not deeds) constitutes the practice of law,"], this claim should go nowhere. The Creative Commons “Before Licensing” page explains, in essence, why CC is the Live Web’s quickie divorce information center. That is: it can help users accomplish a primary legal objective at a fraction (or none) of the cost that otherwise would be associated with the transaction, but it is not intended as, and does not purport to offer, anything but a one-size-fits-many solution. Creative Commons cautions users to “[m]ake sure [they] understand how Creative Commons licenses operate.” In addition to the related explanations of the Attribution and Noncommercial license attributes provided by Creative Commons itself, Flickr (which interestingly isn’t a defendant) advises users that the only restriction imposed by an Attribution license is that the user give the licensor credit. Flickr points users to relevant portions of the Creative Commons site for more detailed explanations and information. Flickr also requires users like the plaintiff in this suit to ensure they do not use the service to, among other things, “harm minors in any way,” or post material they do not have a “right to make available under any law” or that “violates proprietary rights” of any party. Creative Commons similarly cautions users to make sure they have the authority to distribute works under the license they select, and of course tells them it is not a law firm, does not provide individual legal advice, etc.
From my admittedly noncomprehensive review of Creative Commons’ FAQs and other information, it seems to me the site complies with the ABA’s Best Practice Guidelines for Legal Information Providers (for that matter, non-defendant Flickr does so as well by linking to the appropriate Creative Commons material), and that should factor into any reasonableness test. Shelley believes this suit was inevitable, and she may be right, but I disagree with her about why it was to be expected. Creative Commons didn’t invite this suit. Rather, it had the fortitude to provide a range of possible solutions to some of the problems raised by the miasma of our copyright system. Willingness to innovate in areas that lack a wealth of on-point legal precedent can always make you a target.
(Image by hitormiss, CC Attribution-2.0)
[Update, 9/26/07, 1:00 p.m.:] In an update to her original post, Shelley Powers points out, as I have here in the past, that it’s possible for third parties to violate both copyright law and the terms of use for Flickr and/or its API. Something to bear in mind for both the users and misusers of Flickr (the latter of whom will inevitably, and this time correctly, be sued for such actions).
August 27th, 2007
Lawgarithms Links for 8/27/07
iPhone hacking meets the DMCA, new ways to owe money to the RIAA, bad music and its aftermath, and more — now playing in my Google Reader Starred Items:
iPhone Unlocked; Legal Battle Looming?, from Ed Felten
Unlocking the iPhone could invite a lawsuit, from Computerworld Breaking News
Is Unlocking Apple’s iPhone Legal?, from Top Tech News
Providing legal advice information in a humorous way, from Ernie The Attorney by Ernest Svenson
Judge Says That Making Available Is Infringement… RIAA Pounces Immediately, from Techdirt by Mike Masnick
Judge says making files available is the same as distributing, from ZDNet Blogs by ZDNet Government
You Have To Mean It If You Set It To Music, from FurdLog by Frank Field
Nixon Peabody ThemeSongGate: A Synopsis, from Abovethelaw.com
Unauthorized Enjoyment of Song Irks Law Firm, from NYT > Business by MICHAEL J. de la MERCED
Lat itude for Fair Use?, from Concurring Opinions by Frank Pasquale (”think ‘Up With People’ meets Sheena Easton meets B of A’s version of U2’s One“)
Well, Maybe Not Everyone, from The Trademark Blog by Marty
The Seven-point Personal Information Technology Property Manifesto, from May it Please the Court
Blawg Review #123, from Texas Appellate Law Blog by Todd Smith (near and dear to my heart: in the form of an appellate opinion)
Mark Lemley’s One Safe Harbor to Rule Them All, from A Copyfighter’s Musings by Derek Slater
Seventh Circuit Affirms Rejection of Data Breach Claims, from Spam Notes by Venkat Balasubramani
Attention Economy: All You Need To Know, from Read/Write Web by Richard MacManus
August 13th, 2007
Lawgarithms Links for 8/13/07
Remember that between entries here you can keep up with the Live Web (and other) issues I’m spotting by subscribing to my Google Reader Starred Items. Among the links now playing:
Two-word license agreement: “F— YOU!”, from Boing Boing by Cory Doctorow
Fair Use for YouTube & MySpace Users, from Slashdot by Zonk
What bloggers should know about copyright protection for their writing and photographs, from IP Law Daily by mamarant
Trademarks FAQ, from Blawg IT-Internet Patent, Trademark and Copyright Issues with Attorney Brett Trout by Brett Trout
Catching Up: Derivative Works and Fair Use, from IPTAblog by Andrew Raff
Avatar Rights, from Wonderland by Alice Taylor
Proposal to Make Suing Anonymous Avatars Harder, from Virtually Blind - Virtual Law | Legal Issues That Impact Virtual Worlds by Benjamin Duranske
Lawsuit Filed Against Second Life Avatar, from Top Tech News by Phil Davis
Prophesies, from Doc Searls Weblog by Doc Searls
A Guide to Google’s APIs, from Mashable! by Adam Ostrow
It All Comes Together: The getting good with BitTorrent roundup, from Lifehacker by Adam Pash
Most Popular DVDrips on BitTorrent (wk31), from TorrentFreak by Ernesto
Stop! Don’t click “I Agree” before you read the Terms of Service, from Yap 3.0 by Robin
YouTube, Google Street View: the copyright, trademark, AND privacy trolls are coming!!, from ZDNet Blogs by Russell Shaw
Getting data OUT of Facebook, from ZDNet Blogs by Dennis Howlett
Electronic Filing Of Copyright Applications Has Arrived (at least for beta testers), from Clock Tower Law Group’s shared items in Google Reader by Aaron Silverstein
Internet Vote-Swapping Legal, Says 9th Circuit, from Threat Level - Wired Blogs by Sarah Lai Stirland
Facebook, Identity, and OpenID, from Ministry of Intrigue by daniel@andrlik.org (Daniel Andrlik)
Let’s kill all the lawyers: web-based negotiation platform seeks to revolutionize the creation of contracts, from Online Guide to Mediation by Diane Levin
Taking Intangible Electronic Files is Criminal Fraud–NM v. Kirby, from Technology & Marketing Law Blog by Eric Goldman
Video Site Veoh Sues To Stop Universal, from Top Tech News by Richard Koman
Surfing your clickstream, from ZDNet Blogs by Ed Gottsman
Hyperlinking & the law: IMPACT guide to the essentials, from IMPACT® by Alex (note the focus of this piece is UK/EU)
July 28th, 2007
Lawgarithms Links for 7/28/07
My Google Reader starred items are the ones I’ve selected just for you, O Lawgarithms readers. Some current highlights therefrom include:
NPR on MP3 blogs, from Scripting News
New York Lawyer Advertising Rules Round Up, from Sui Generis–a New York law blog by NBlack
The Pirate Bay Goes Simpsons, from Digg / World & Business
Record Label to the Pirate Bay: “Please Share Our Music”, from Digg / Technology
IBM to Regulate Employee Second Life Behavior, from Slashdot by Zonk
5 Life Lessons from the Bar Exam, from Legal Andrew by Andrew Flusche
Facebook Isn’t Private, and 7 Other Things You Should Know, from Legal Andrew by Andrew Flusche
Third party FaceBook apps are giving rise to serious privacy & legal concerns, from IMPACT® by Alex
MPAA Wants Protections if “Net Neutrality” Adopted, from GigaLaw.com Daily News by Doug Isenberg
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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