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

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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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)

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)

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.

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)

Though it could scarcely be more cumbersomely named — the Transatlantic Information Law Symposium — this upcoming (and free) program at Stanford Law School looks excellent, featuring such big thinkers as Mark Lemley and Stefan Bechtold, and such big topics as privacy, free speech, the future of Internet regulation, and one that looks particularly intriguing from the standpoint of social media and attention: property vs. contract to govern online behavior. I’d like to go, though the timing’s not great for me; if you’re going, blog the wealth.

(Image by Maveric2003, CC Attribution-2.0)

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.

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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?"

Zinn replied that TiVo goes out of its way to satisfy rightsholders that copyrighted material cannot readily be transferred out of someone’s home or to someone else.

It’s interminably slow to transfer material from one TiVo box to another in your home, because of all the encryption we’re using at the insistence of the rightsholders.

More directly to the point, Fred von Lohmann rejoined that patents are indeed a barrier to innovation "in a market that is characterized by patent thickets. TiVo having one or two patents is not the same thing."

In response to Fred von Lohmann’s and Matt Zinn’s repeated points about the law’s ability to kill innovation when drawn too narrowly, Doug Lichtman suggested that many rightsholder lawsuits are not designed to shut down a particular technology, but rather to get the parties to the table to make a deal. This just underscores von Lohmann’s and Zinn’s points about chilling infringement. Such tactical lawsuits are legalized extortion, and without "a copyright system that leaves room," such extortion works. von Lohmann made this point as follows:

If there’s even a chance there’s going to be infringement, there’s a gun to your head — even if you don’t know the unauthorized material is there. There is no corporate veil in copyright. They can and will sue you personally and come after your house. Statutory damages of $750,000 per infringement apply. It’s relatively easy for the plaintiff to get an injunction that takes your product off the market while the lawsuit is pending. As long as we live in a world where the law has a gun to your head if there’s any infringement, innovation is killed.

Though Doug Lichtman tried to get Fred von Lohmann and Matt Zinn to buy into the premise that there’s a realistic way to filter or legally require filtering of unauthorized copyrighted material, both refused to bite. Per von Lohmann, the DMCA safe harbors recognize the impossibility of accurately guessing, in each instance, what’s authorized and what’s not:

But for the DMCA safe harbors, there would be no Google, or Yahoo!, or eBay, or Amazon. At least, not as we know them today. Tech companies need Washington. The safe harbors are there to make these companies happen. And where are the companies located? Here, in the U.S. We did a good job of relieving companies of the kind of technological risk involved in guessing.

II. P2P

Fred von Lohmann and Patrick Ross were also, unsurprisingly, miles apart on how to deal with file sharing. Von Lohmann described the EFF’s collective licensing approach, pointing out that collective licensing is well established and works well in other contexts (e.g., radio). Ross rejected collective licensing, saying that artists "would be sidelined into oblivion." If you don’t have collective licensing, you have lawsuits, and von Lohmann pointed out the RIAA admits its lawsuits aren’t paying anybody. Which resulted in this exchange:

Ross: You’re talking about civil actions.

Von Lohmann: If 30,000 Americans were in jail, that wouldn’t be getting artists paid either.

All in all, it was a fascinating panel, with the participants lining up pretty much as you would expect (though it was difficult to tell precisely when Doug Lichtman was urging his own opinion or just stirring the pot as moderator). Though shifts are in the air — like Sony BMG floating the idea of a blanket license to its entire catalog — there remains a yawning divide in philosophy and approach between the entertainment and technology industries.