Archive for the ‘Web 2.0’ Category

Academic Books, Non-Academic Books, BitTorrent, and Google’s Brand Power

posted by Deven Desai

D is for Digital is over now. I urge anyone interested in the Google Book Deal (aka the Google Book Search) to check out the schedule page and the webcast links (the stream links are at the top of the Friday and Saturday schedules respectively). James Grimmelmann put together a conference that aired out pro and con views rather well. In fact, I’d say although many were questioning the deal, I learned a good amount about the views of those in favor of the deal. I was not convinced that the deal is good and should go forward, but I appreciated hearing more about how the deal evolved and defenders’ views.

I highly recommend the keynote lunch with Pam Samuelson and Paul Courant. That panel warmed up the group. Some really good questions about transparency of the process, responsibility, and more came up. Pam’s key point that if one builds a pubic good this big, public trust responsibilities go with it was dead on for me. I highly recommend watching the video for all that was said.

The next panel C is for Culture was excellent. James asked a question that has been on my mind and we had kicked around at WIP IP last week. Is Google Book Search irrelevant?

Here is why that is good question. First, the day so far emphasized that the majority of the books in question are academic books. As Pam explained and Paul Duguid echoed, if scholars’ books are at stake, scholars should be involved. Paul made clear that scholarly standards should guide the project.

Now, consider that many books are becoming available on BitTorrent. In addition, one panelist, Dan Reetz has a fascinating project. His DIYscanner project is a wild moment in grassroots digital activism. The story of how he chose to build his low-cost, open source DIY scanner (we’re talking maybe $300-$400 total) so that one could scan personal (and other books) at the rate of a few seconds per page and without destroying the book merits another post. (for now here is a link to the plans to build your own scanner) In addition, Reetz noted that majority of new books are leaked prepublication. As a general matter, a key claim is that users will pay for a book but copy the book so that they can search and take many books with them. The importance of these changes is that crowd-sourced and other approaches to digitizing text is on the move. One can see this shift as indicating market failure or that ereader functionality will be more and more the case.

As scanners, ereaders, and companies like Stanza offer better ways to access, search, mark, and read, the walled or controlled version of the text experience that the Google Book Deal offers seems odd. I doubt, however, that it will be irrelevant. Google’s brand, the ease of searching (even with its errors so far), and the ability to trust Google over BitTorrent or other sources will likely make it relevant to many. Nonetheless, the growth in alternative sources would suggest that Google will need to choose between a web search that captures all useful book offerings or a Google Book Search that only gives Google Book results. As the last panel on antitrust explored, Google is already dominant in search. It arguably killed a little company called MapQuest. Once Google offered its maps and its maps became the default listing when one entered address information into the search, MapQuest was done. That seems awfully close to the MS bundling issues of the last decade. When it comes to books, Google’s lead and dominance will give it massive power and leverage over how we all access knowledge. Nonetheless, it may be that grassroots, crowd-sourced movements will permit an end around for the control the publishers want through this deal. To be clear an end-around is insufficient protection against the lock-in problems the Google Book Deal poses, but it may help push Google to reach a deal that is less run by publisher interests.

  October 12, 2009 at 7:40 am  Tags: Antitrust, DIY scanner, Goog, Google, Google Book Settlement  Posted in: Google & Search Engines, Intellectual Property, Technology, Web 2.0   Print This Post   One Comment

FTC and Blogger Disclosure Rules

posted by Deven Desai

As I argue in my essay Individual Branding the web presents important and amazing new possibilities for individuals to earn money and much of that potential will flow from one’s online reputation. In short, as one blogs or shares information in another form, one becomes a trusted source and can start extract money from those activities. I argue that those acts have the seeds of the possible destruction of Benkler’s world of sharing. Today the FTC has targeted a practice that arguably could increase the reliability of social network endorsements but will also upset many people.

As CNET reports, “Independent bloggers who fail to disclose paid reviews or freebies can face up to $11,000 in fines from the Federal Trade Commission, according to revisions to the agency’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising” published Monday.” The FTC has not updated the Guidelines since 1980. The press release is here. The full text of the Guides are here (pdf). It is 81 pages, and I have not read it as yet but one thing people should know is that the effective date is December 1, 2009.

From the release it appears that the guides take am expansive view of what presents a moment to disclose “The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.” CNET suggests that celebrities and “mommy bloggers” could be in trouble under the new rules. (Here is my prediction on the riposte to come but that I don’t think is accurate: “The FTC hates moms. In a down economy and with more and more people needing new ways to earn, the FTC actions are a direct attack on the importance of moms.” Now back to our regularly scheduled blogging.)

There are a ton of oddly connected things here. First, I just blogged about CITP and its FedThread project. That project would allow one to track this sort of moment rather quickly. Second, I was just at the Works In Progress Intellectual Property Conference at Seton Hall (which was yet again an excellent conference and for which everyone at Seton Hall deserves many thanks) where Zahr Stauffer presented a fascinating paper called Novels for Hire: Branded Entertainment, Copyright and the Law that I think will have something to say about these changes. As one blog notes, the practice of giving journalists freebies is common. Zahr’s paper shows how advertising and novels have had a rather curious interaction over the years. I think the paper will help understand the way writing and advertising have co-existed in either good or bad ways at different times with the shift to blogging fitting in as part of that history. The paper should be available soon so keep an eye out for it.

Electronics and other big ticket items seem to be where the concerns are. I look forward to finding out whether book, film, and music reviewers have to tell readers whether they received a review copy of the book. In general if one only says nice things about a review subject, one might receive more books etc. I think that non-professional blogs and other online information sources such as rating systems and FaceBook will allow people to find out whether they should buy a product (i.e., one might use a personal network to ask whether a product is good). That practice could undercut the quiet payment model.

Here is a possible way to understand this turn of events. 1) Secret endorsements die out and full disclosure of what has been given is the norm. 2) Small bloggers and big agencies are no longer able to seem credible as reviewers. 3) If people want independent reviews, they must pay magazines or other pay sources who can afford to buy the review items and avoid the taint of being given free stuff. 4) The public does not want to pay and instead reads the blog reviews with the disclosures and augments the research with social networks and user ratings which are more difficult to fake and possibly more reliable. 5) Yet again paid, professional independent news and reviews seems to be squeezed out.

  October 5, 2009 at 1:44 pm  Tags: Blogging, FTC, guides  Posted in: Blogging, Consumer Protection Law, Cyberlaw, First Amendment, Media Law, Web 2.0   Print This Post   7 Comments

Open Government Update: GPO and CITP’s FedThread Project

posted by Deven Desai

The Federal Register has moved to an XML format. That has allowed Princeton’s Center For Information Technology Policy to be on the move once more. The new project is called FedThread. As the site puts it now that the Federal Register is in XML, “citizens [can] create new services that in turn provide value back to government. Kudos to the Government Printing Office, National Archives and Records Administration, and Office of Science and Technology Policy for making this all possible.”

What does this mean for the public? Through FedThread people can more easily track issues regarding “rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents” as they are posted to the Federal Register website (weekdays except for government holidays). So today’s documents include material about the Delaware River Basin Commission, Department of Education, Federal Communication Commission, Department of Health and Human Services, and the National Science Foundation proceedings. Actions regarding postesecondary education, rulemaking at the FCC, and pandemic influenza vaccines are apparently on the table. Go to this link for today’s full list.

In other words, rejoice, wonk and non-wonk, for you may can now see what your government is doing. In fact FedThread offers some rather great features including:

* collaborative annotation: Attach a note to any paragraph of the Federal Register; start a conversation.
* advanced search: Search the Federal Register (back to 2000) on full text, by date, agency, and other fields.
* customized feeds: Turn any search into an RSS or email feed, which will send you any new items that match the search query.

As I understand it, one can set up a search and receive updates about the topic. Policy makers, academics, and engaged citizens should take advantage of these features. It should allow one to see how the law is evolving and take action much more quickly than before.

One point for those who may confuse making a note with a comment. FedThread is not affiliated with the U.S. government. Notes appear on the FedThread site but are not part of the Federal Register. Formal comments must follow the proper procedures related to commenting on whatever particular topic upon which one wishes to comment. In addition, the notes are just that, notes of those who wnat to share their views about a topic. It should open debate and discussion, but as with many areas of the Web, one will have to sort between useful and irrelevant notes.

I am sure I will learn more from my colleagues here at CITP as the project moves forward. For now, I hope people enjoy the offering.

For those interested in “some of the driving principles behind the project,” this paper Government Data and the Invisible Hand is a good place to start. Last, I want to call out the people involved in building this project. Joe Calandrino, Ari Feldman, Harlan Yu, and Bill Zeller developed it. Calvin Lee at Princeton’s Student Design Agency handled the graphic design. Prof. Ed Felten and Stephen Schultze led the project. You can contact FedThread at info@fedthread.org.

  October 5, 2009 at 7:44 am  Tags: Federal Register, FedThread, government 2.0, open government  Posted in: Government Secrecy, Technology, Web 2.0   Print This Post   No Comments

Facebook Settles Beacon Lawsuit

posted by Daniel Solove

A while ago, I wrote a lot about Facebook’s Beacon on this blog:

* The Facebook-Fandango Connection: Invasion of Privacy?

* Facebook’s Beacon: News Feeds All Over Again?

* Facebook and the Appropriation of Name or Likeness Tort

* The New Facebook Ads — Starring You: Another Privacy Debacle?

* Facebook — the New DoubleClick?

* Facebook Listens and Responds

* Facebook’s Beacon, Blockbuster, and the Video Privacy Protection Act

A class action suit was initiated against Facebook, and recently, a settlement agreement has been reached.  According to the WSJ:

Facebook Inc. said Friday it settled a class-action lawsuit related to its Beacon Web product, a controversial service that displayed actions that users took on other Web sites back on Facebook.

As part of the settlement, which is pending approval in the U.S. District Court of the Northern District of California, the social-network concern will shut down the Beacon service, which it has been phasing out but which is still being used by a small number of Web sites, according to a Facebook spokesman.

The company will also pay $9.5 million to create a foundation to fund products that promote online privacy, safety and security, the spokesman said. The settlement was submitted to the court late Friday evening.

  September 21, 2009 at 10:00 pm   Posted in: Privacy, Privacy (Consumer Privacy), Social Network Websites, Web 2.0   Print This Post   No Comments

Copyright Irony, Of Royalty Boards and Google Book Deals

posted by Deven Desai

Earlier this week Live365 filed a law suit arguing that the Copyright Royalty Board is unconstitutional. Today is the deadline for authors to opt-out of the class in the Google Book Settlement. The idea that this Settlement ought to approved is more than suspect. Others have noted the myriad issues the settlement raises. As Pam Samuelson has put it “Exploiting an opportunity made possible by lawsuits brought by a small number of plaintiffs on one narrow issue, Google has negotiated a settlement agreement designed to give it a compulsory license to all books in copyright throughout the world forever. This settlement will transform the future of the book industry and of public access to the cultural heritage of mankind embodied in books. How audacious is that?” The nature of the class, whether class action (which I usually see as better suited to resolving tort rather than property claims) is the correct approach, the way in which this class purports to operate, and the anti-trust issues alone should make it clear that this deal, although possibly offering benefits, should be slowed down and put under further scrutiny.

It is ironic that one one hand Live365 has been able to raise a Constitutional challenge to a copyright royalty issue, and on the other hand what is surely a turning point in copyright history and the question of how society governs access-to-knowledge is subject to a private deal between private parties who have little concern for society’s claim to access and use the works in question. To be clear, I am not arguing that it is improper to figure out a possible payment system. Samuelson’s work on mapping the public domain is clear about reasons we may need and want to have certain groups build, maintain, and charge money for information repositories. The questions that concern me are what will that system look like? Will it allow innovation and competition in the provision of the similar services or will it hinder such efforts? Is this service a natural monopoly? Will the incumbents after the deal is done be able to extract rent? What about the different uses that are conflated here (e.g., higher educational uses, research uses, social networking uses, and more)? What about the spillovers that could come from a more open system such as empirical research on the data in the works and computer science work on the way language operates?

I have begun a close read of the 140 page contract and its appendices. I urge all of you to take a look at the contract. It reminds a little too much of entertainment deals I have read in practice. Some clauses are opaque; some bizarre. All protect one party and ignore others. In a Hollywood or other publishing arena that may be O.K. When talking about the modern Library of Alexandria, it is not.

To whet your appetite about why one should not accept the deal at face value look at this statement of objectives:

The economic terms for Institutional Subscriptions of Books will be governed by two objectives: (1) the realization of revenue at market rates for each Book and license on behalf of Rightsholders and (2) the realization of broad access to the Books by the public, including institutions of higher education. Plaintiffs and Google view these two objectives as compatible, and agree that these objectives will help assure both long-term revenue to the Rightsholders and accessibility of the Books to the public.

My initial comments are at the Public Index in Section IV. But in brief, the assumption that the objective of market rates and the realization of broad public access are compatible is on the surface semi-plausible but facile. The following sub-clauses make it clear that broad public access is not the animating force on the deal. Intense control over access and the ability to price discriminate (including a ban on k-12 access unless the Registry (publishers) agree) are the goals. Again if others read the sections and can show where I err, I am all ears.

As a general matter, if anyone can share why class action was wise and/or a good fit here, please share your insights.

Last, I suggest that this deal is so important that Congress has to be involved. As private re-writing of the Copyright Act is not the correct way to proceed. It will likely take away the chance for copyright to roar into the twenty-first century with a winning solution for authors, publishers, and society at large and instead will repeat history with the system being captured and benefiting only a narrow class of stakeholders.

  September 4, 2009 at 11:33 am  Tags: class action, copyright, Google Book Settlement  Posted in: Constitutional Law, Google & Search Engines, Intellectual Property, Technology, Web 2.0   Print This Post   2 Comments

Tiny (Or Rather Shiny?) Bubbles: Apple Trademarks Dialogue Bubbles?

posted by Deven Desai

As Don Ho (and others) have sung:

Tiny bubbles
In the wine
Make me feel happy
Ah, they make me feel fine

Those tiny bubbles
Make me warm all over
With a feeling that I’m gonna
Love you till the end of time

The little charming talk bubbles all over the Internet communications have a similar warm effect. They remind me of comic strips and comic books and of adults droning “wa wawa waaa” in Peanuts cartoons on T.V. Ah no more. According to TechCrunch, when a developer wondered why his App had not been approved he was told “the bubbles in its chat rooms are too shiny, and Apple has trademarked that bubbly design.” Wow. Do comic strip and book folks know that Apple is that clever? The wondrous shiny dialogue bubble means Apple! Do the green bubbles qualify too? Yet again I am left wondering what’s a cubit and contemplating a drink with tiny, shiny bubbles.

So I leave you with Don Ho and Tiny Bubbles.

Tiny Bubbles – Don HO

  September 3, 2009 at 8:53 am  Tags: Apple, apps, Don Ho, Tiny Bubbles, trademark  Posted in: Intellectual Property, Technology, Web 2.0   Print This Post   No Comments

The Revenge of College Gossip Websites

posted by Daniel Solove

A while ago, the notorious college gossip website, Juicy Campus, bit the dust.  But according to an article by Jeffrey Young in the Chronicle of Higher Education:

“This is the new JuicyCampus,” says a note at Campus Gossip, which boasts campus-specific message boards for hundreds of colleges and encourages anonymous and racy barbs such as “These Fellas got herpes,” with a list of names attached. Going even further than its predecessor, there’s also a photo section where students can post embarrassing pictures and videos of others.

The site is planning a back-to-school marketing push, including a happy hour near Arizona State University where a rap artist named Sabotage will perform a song about the pleasures of campus gossip.

Another site, CollegeACB (the letters stand for Anonymous Confession Board), paid the defunct JuicyCampus $10,000 to redirect visitors from its Web address to CollegeACB.

For those who want a first-hand look at these sites, the Campus Gossip site is here and the CollegeACB site is here.  I’m quoted in the article, as is co-blogger Danielle Citron:

Internet shaming creates an indelible blemish on a person’s identity,” wrote Daniel J. Solove, a professor of law at George Washington University, in his 2007 book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press). “It’s similar to being forced to wear a digital scarlet letter or being branded or tattooed. People acquire permanent digital baggage. They are unable to escape their past, which is forever etched into Google’s memory.” . . . .

“I don’t see why it has to be that way,” the law professor told me in a recent interview. “Just like when you drive, it’s not a free-for-all,” he added, equating the current laws governing online forums to a road without traffic lights or stop signs. “It’s like if we looked at the roads and said, There’s just nothing to be done—let’s just abolish all rules of the road.” . . . .

Danielle Citron, a law professor at the University of Maryland at Baltimore, said she hoped that stamping out harassment on campus-gossip Web sites would be considered a matter of civil rights.

She makes the case in an article published in the Michigan Law Review this year called “Law’s Expressive Value in Combating Cyber Gender Harassment.” In it, she argues that law-enforcement officials fail to take seriously complaints about online anonymous comments, and that using “civil-rights remedies” may be the most effective way to pursue such acts.

“Women should not have to wait until cyberharassment fulminates into physical violence for law enforcement to address it,” she wrote. “A civil-rights agenda … would demonstrate that the Internet is not the lawless Wild West, just as court settlements and state legislation made clear that the home does not insulate abusing husbands from societal intervention.”

  August 31, 2009 at 9:51 am   Posted in: Anonymity, Privacy, Privacy (Gossip & Shaming), Social Network Websites, Web 2.0   Print This Post   2 Comments

Lori Drew Case Decided

posted by Daniel Solove

The Lori Drew case has finally been decided.  Background about the case is here.  In previous posts (here and here), I argued that the CFAA should be held to be unconstitutionally vague.

In an opinion released on August 28, Judge George Wu struck down, on unconstitutional vagueness grounds, the prosecution’s attempt to enforce violations of website terms of service as crimes under the Computer Fraud and Abuse Act (CFAA):

[I]f any conscious breach of a website’s terms of service is held to be sufficient by itself to constitute intentionally accessing a computer without authorization or in excess of authorization, the result will be that section 1030(a)(2)(C) becomes a law “that affords too much discretion to the police and too little notice to citizens who wish to use the [Internet].” City of Chicago [v. Morales], 527 U.S. [41] at 64 [(1999)].

Congratulations to Orin Kerr, who assisted in the defense, and who is cited numerous times throughout the court’s opinion.

  August 29, 2009 at 10:18 pm   Posted in: Anonymity, Privacy, Privacy (Electronic Surveillance), Privacy (Gossip & Shaming), Web 2.0   Print This Post   No Comments

Interview on Internet Anonymity on Above the Law

posted by Daniel Solove

Over at Above the Law, Kashmir Hill has posted a Q&A with me about the “Skanks in NYC” blogger case.  She also discusses with me how and why I became interested in privacy law.

  August 25, 2009 at 3:06 pm   Posted in: Privacy, Privacy (Gossip & Shaming), Social Network Websites, Tort Law, Web 2.0   Print This Post   No Comments

Can You Be Sued for Unmasking an Anonymous Blogger?

posted by Daniel Solove

A model named Liskula Cohen was being attacked on a blog called Skanks in NYC.  The author of the Skanks blog was anonymous.  Kashmir Hill reports:

Cohen started pursuing the defamation suit against the anonymous ‘Skanks’ blogger in January after discovering the site, on which the blogger called Cohen a skank, a ho, and an old hag, among other nasty things, and posted photos of her, taken from various websites. Since Cohen needed the identity of the blogger in order to file the lawsuit against her, a judge in Manhattan granted Cohen’s request to force Google to reveal the e-mail address and IP address of the alleged defamer.

Cohen has since dropped her $3 million lawsuit.  The unmasked blogger — Rosemary Port — plans to sue Google for $15 million for breaching its fiduciary duty to defend her anonymity.

Over at CyberSLAPP, a website maintained by EFF (disclosure: I’m on EFF’s advisory board), ACLU, CDT, EPIC, and Public Citizen, they have posted documents from the case, including the court’s order to Google to unmask the author of Skanks.

CyberSLAPP seeks to combat frivolous lawsuits to reveal another’s identity:

CyberSLAPP cases typically involve a person who has posted anonymous criticisms of a corporation or public figure on the Internet. The target of the criticism then files a frivolous lawsuit just so they can issue a subpoena to the Web site or Internet Service Provider (ISP) involved, discover the identity of their anonymous critic, and intimidate or silence them.

The Skanks in NYC raises a lot of interesting issues.  I’ll tackle a few in this post.

1.Was Cohen’s lawsuit frivolous? Cohen might have a decent defamation lawsuit, but she subsequently dropped it when she found out Cohen’s identity.  This behavior indicates she was using the lawsuit only to unmask the blogger.  I agree with CyberSLAPP that such a practice should be restricted.

Read the rest of this post »

  August 25, 2009 at 7:04 am   Posted in: Anonymity, Privacy, Privacy (Gossip & Shaming), Social Network Websites, Tort Law, Web 2.0   Print This Post   23 Comments

Employers Researching Applicants Online

posted by Daniel Solove

Over at the New York Times Bits Blog, Jenna Wortham writes:

According to a new study conducted by Harris Interactive for CareerBuilder.com, 45 percent of employers questioned are using social networks to screen job candidates — more than double from a year earlier, when a similar survey found that just 22 percent of supervisors were researching potential hires on social networking sites like Facebook, MySpace, Twitter and LinkedIn.

The study, which questioned 2,667 managers and human resource workers, found that 35 percent of employers decided not to offer a job to a candidate based on the content uncovered on a social networking site. (The survey has no margin of sampling error because it was not drawn from a representative nationwide sample but rather from volunteer participants.)

According to the report, most employers did their research on applicants by using Facebook.  I wonder whether they respected the applicants’ privacy settings.  If the applicants limited the access of their profile to a select group of friends, and the employer accessed that profile, then the employer might find themselves at odds with the Computer Fraud and Abuse Act — with possible criminal penalties!

What leads to job rejections?  Photos!  Photos involving nudity, drink, and drugs are the most frequent job killers.

As I discuss in The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, people must learn to be more careful about what they post about themselves and others or else they will face serious consequences and lost opportunities.

In an earlier post regarding college admissions officers researching applicants online, I argued that most lack guidelines for how they conduct such research and for how they use the information they find.  These questions also pertain to employers:

* Should such information be used? When?

* How heavily should it be relied upon?

* What kinds of things should negatively impact an applicant? Information about sex life? Drug use? Drinking? Bad behavior?

* What steps should be taken to make sure that the information was accurate?

* Should a distinction be made between information that people post about themselves and information that others have posted about them, perhaps invading their privacy without their consent?

* What steps should be taken to make sure that the information used in fact relates to the applicant and not to somebody else with the same name?

* Should people be notified that information online was used against them and be given an opportunity to be heard to explain it?

  August 20, 2009 at 6:37 pm   Posted in: Employment Law, Privacy, Privacy (Gossip & Shaming), Social Network Websites, Web 2.0   Print This Post   No Comments

Opening Up the Law: Pacer, CITP, and the RECAP the Law Project

posted by Deven Desai

As some of you know I am a Visiting Fellow this year at Princeton’s Center for Information Technology Policy. When I arrived a couple weeks ago, I heard about a project in the works and have been dying to tell people about it. It is now live and looks great. It is called RECAP and just may change the way people access a major part of the law. We’re talking about the law that lurks outside cases; the actual guts of litigation.

Attorneys live and die by documents. As I tell my students, you must write well, because lawyers are paid in large part to write. With around 1.1 million attorneys practicing in the U.S., a large amount of paper, a.k.a., courts documents, is generated each and every day. Court documents are essentially public documents (there are times when papers are sealed etc., but that is a separate matter). The government runs a system called PACER that allows one to search for and access U.S. Appellate, District, and Bankruptcy court records and documents. But as the Washington Post explains, “The fee to access PACER is $0.08 per page: ‘The per page charge applies to the number of pages that results from any search, including a search that yields no matches (one page for no matches.) The charge applies whether or not pages are printed, viewed, or downloaded.’ For people who do a lot of legal research, those fees add up quickly.”

In an era of transparent government, open source, and access-to-knowledge movements, it was only a matter of time before someone decided to find a way to make court documents available on a broader basis. The folks at Stanford have the IP Litigation Clearing House. That project aims to fill the “critical need for a comprehensive, online resource for scholars, policy makers, industry, lawyers, and litigation support firms in the field of intellectual property litigation.” That project has 23,000 documents and is growing. Pretty darn good, if you ask me. But wait; don’t order yet! Now comes RECAP from the folks at Princeton’s Center for Information Technology Policy. (Specifically, Harlan Yu, Steve Schultze, and Timothy B. Lee developed the project which is led by Prof. Ed Felten). Here is the link to the About Page, but let me tell you a little more.

CITP’s Harlan Yu explains:

RECAP is a plug-in for the Firefox web browser that makes it easier for users to share documents they have purchased from PACER, the court’s pay-to-play access system. With the plug-in installed, users still have to pay each time they use PACER, but whenever they do retrieve a PACER document, RECAP automatically and effortlessly donates a copy of that document to a public repository hosted at the Internet Archive.

In addition, if one is using PACER and RECAP “The documents in this repository are, in turn, shared with other RECAP users, who will be notified whenever documents they are looking for can be downloaded from the free public repository.” So when one searches for a document, one is notified about the availability of a free copy of the document.

There is probably much more to say here, but for now I want to congratulate the folks here at CITP on a great idea that uses information, technology, law, and policy to craft an elegant solution to increasing government transparency. This resource should feed almost anyone interested in practicing or studying the law. Empirical researchers alone should be drooling at this new wealth of information.

  August 14, 2009 at 6:06 am  Tags: access to knowledge, access to law, open source, PACER, RECAP  Posted in: Civil Procedure, Constitutional Law, Cyberlaw, Intellectual Property, Sociology of Law, Technology, Web 2.0   Print This Post   7 Comments

Zuckerberg’s Law on Data Sharing, Not Puffery

posted by Danielle Citron

As I noted in a blog post late last year, Mark Zuckerberg, chief executive of Facebook, has predicted that “next year, people will share twice as much information as they share this year, and that next year, they will be sharing twice as much as they did the year before.”  He explained that “people are ever more willing to tell others what they are doing, who their friends are and even what they look like as they crawl home from a college party.  Recent statistics support his optimism (and then some).  Yesterday, Zuckerberg announced that his social networking site now has 250 million active users, up from 200 million users just three months ago and 150 million in January.

This development has much significance.  It tells us that social networking is no passing fad — it is deeply embedded in our daily lives and will likely remain so despite many parents’ dismay.  It suggests that we are more connected personally (and perhaps more distracted professionally).  And it means that we entrust Facebook with an exponentially increasing amount of data.  Facebook’s information security practices and privacy policies are thus worth watching carefully.  No doubt, this development will have other far-reaching impacts so your comments are most welcome.

Wikimedia Commons Image

  July 16, 2009 at 12:32 pm   Posted in: Architecture, Privacy, Privacy (Consumer Privacy), Technology, Uncategorized, Web 2.0   Print This Post   One Comment

Lori Drew Tentatively Acquitted

posted by Daniel Solove

Judge George Wu has ruled that he is planning to dismiss the charges against Lori Drew, the woman involved in the MySpace suicide case involving Megan Meier.  Background about the case is here.  According to an article by Kim Zetter of Wired, who has provided terrific coverage of the case:

“It basically leaves it up to a website owner to determine what is a crime,” said Wu on Thursday, echoing what critics of the case have been saying for months. “And therefore it criminalizes what would be a breach of contract.” . . . .

Wu told Assistant U.S. Attorney Mark Krause that if Drew had been convicted of the felonies, he would have let the convictions stand, and would have already sentenced her. But the misdemeanor convictions troubled him, because of the vague wording of the statute. . . .

To convict Drew of the felonies, prosecutors would have needed to prove two things: that Drew accessed MySpace “without authorization,” and did it for the purpose of committing a tortious act — in this case, to intentionally cause harm to Megan Meier.

But for the misdemeanors, the jury just had to find that Drew obtained the unauthorized access. Wu said that language, standing on its own, was too vague to pass constitutional muster in this case.

“I don’t see how the misdemeanor aspect would be constitutional,” he said. “That is the issue I’m wrestling with at this time.”

Wu also doubted that MySpace provided sufficient notice to members to hold them responsible. If a user didn’t read the terms of service, the judge asked prosecutor Krause, could they still be charged with violating them?

In previous posts (here and here), I argued that the CFAA should be held to be unconstitutionally vague.  I’m encouraged that Judge Wu agrees, though I believe the CFAA is unconstitutionally vague not only in its misdemeanor provisions, but in its felony ones as well.

Congratulations to my colleague, Orin Kerr, who assisted in Lori Drew’s defense.

The AP story is here.

  July 2, 2009 at 7:41 pm   Posted in: Privacy, Privacy (Electronic Surveillance), Privacy (Gossip & Shaming), Web 2.0   Print This Post   10 Comments

Google Earth and Caste Discrimination in Japan

posted by Jacqueline Lipton

With gratitude to Funmi Arewa for sending me this link, here’s an interesting story from the Times Online about an unexpected area in which Google has found itself in hot water.  In adding information to some modern day maps of Japan on Google Earth, Google engineers overlaid some old maps of Japan on the modern sattelite images.  This effectively shows how some of the old Japanese ghettos relate to modern 21st centry streets.  Unfortunately, it also provides a proxy that effectively allows prospective employers to guess on the ancestry of people who may be applying for jobs and to identify them as likely members of a caste considered as “untouchables” and condemned to the worst positions in the social and cultural hierarchy.  Google did not realize how offensive and problematic this data-driven action could be within Japan.  It’s a great example of how modern technology can clash with deeply ingrained cultural mores.

On another note, this is my last post for Concurring Opinions as I’m heading off tomorrow for my first long weekend vacation in (too) many years!  Thanks so much to Dan and the whole Concurring Opinions crowd for having me.  I hope to visit again sometime.  Happy summer vacation everyone…

  May 27, 2009 at 8:09 am  Tags: caste, discrimination, Google, Japan, maps  Posted in: Cyberlaw, Google & Search Engines, Race, Technology, Web 2.0   Print This Post   2 Comments

Size Matters or What’s an IMAX?: Thoughts on Branding and Meaning

posted by Deven Desai

The recent flap over whether an IMAX screen is really an IMAX screen shows how fragile a brand can be. As some of you may have heard, actor Aziz Ansari went to see Star Trek at an IMAX theater in Burbank and paid a five dollar premium to do so. But when Mr. Ansari went into the theater, he was not in a wonderful, cavernous theater. Instead he was watching the film on a screen not much larger than an ordinary screen. Ansari blogged about his displeasure and the news spread. At first IMAX played the corporate head-in-the-sand/obfuscate game with statements on Wired asserting that IMAX does not mean 72 foot screen and that the new theaters may be smaller but they still deliver the IMAX experience. And there’s the problem. IMAX thinks it knows what the experience is and means to its consumers (or it certainly wants to try and tell consumers what it means). So it appeared that IMAX fell into the control-the-meaning of the mark trap, which Sandra Rierson and I have argued is futile and causes serious problems for trademark law. Yet there seems to be a useful lesson and happy ending to this trademark story.

IMAX is expanding rapidly and becoming a big player in Hollywood’s attempt to keep the theater experience alive. So IMAX is partnering with theaters to install IMAX branded theaters at mulitplexes. The strategy has worked to expand the company’s reach. Now that it is summertime, however, the strategy is being tested, for summertime means tent pole movies, and many more people wanting that summer movie thrill. Indeed, ever since television, Hollywood has tried to offer viewers an experience that they cannot have at home: bigger screens, better sound, special effects that make your head explode. Technology and trademarks have traveled along with that quest. Panavision, Cinemascope, Dolby, THX, and DTS, signified a way of filming and/or presenting a film in a theater. They became trademarks as well. Recently, with the growth of home theaters Hollywood has been looking for new ways to make the public theater experience worthwhile. IMAX seems to be the latest way to indicate a special experience that is often lacking in cinema houses today.

I certainly miss the movie palaces of L.A. For me, 70mm screens and sound that may break up kidney stones are worth the eleven or twelve dollars a ticket can cost in a major city. Sadly, movie palaces gave way to multiplexes, and so one rarely can find that all encompassing, immersion a single, massive screen offers. IMAX has started to fill this gap. Yet, in my opinion, the company is diluting its brand by offering what many would call non-IMAX experiences under the name IMAX.
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  May 23, 2009 at 2:28 pm  Tags: Ansari, IMAX, trademark  Posted in: Intellectual Property, Technology, Web 2.0   Print This Post   3 Comments

A Rumble in the Wiki/Licensing World: Wikimedia Foundation Moves from GNU to Creative Commons

posted by Deven Desai

Slashdot reports that “The Wikimedia Foundation has resolved to migrate the copyright licensing of all of its wiki projects, including Wikipedia, from the GNU Free Documentation License to the Creative Commons Attribution-Share Alike 3.0 License. Here is the WikiFoundation site explanation for the change:

The Wikimedia Foundation (WMF) has proposed that the copyright licensing terms on the wikis operated by the WMF — including Wikipedia — be changed to include the Creative Commons Attribution-ShareAlike (CC-BY-SA) license in addition to the current GNU Free Documentation License (GFDL). This will affect all text and rich media (images, sound, video, etc.) currently licensed under “GFDL 1.2 or later versions”. This change is meant to advance the WMF’s mission by increasing the compatibility and availability of free content. Further details and motivation for this change are explained in the licensing update proposal and the associated FAQ.

There is a fair amount to unpack here. For example why use the phrase “in addition to”? It could be that this language is supposed to reflect a transition period such that old content may have legacy licenses under GNU and new material is all CC licensed. The background information on why change at all sheds some light on the issue, but there is enough to discuss that I will get to that in a post tomorrow. At bottom it is a big shift and indicates that CC may be better for sharing content.

Perhaps just as interesting is the process behind the change. The Foundation aired the topic for some time and took a vote. For “Yes, I am in favor of this change” there were 13242 votes or 75.8% of the total votes; for “No, I am opposed to this change”, 1829 votes, 10.5% of the total; and for “I do not have an opinion on this change”, 2391 votes, 13.7% of the total. The 17,462 total votes were cast and certified. This process reminds me of Dave Hoffman and Salhil Mehra’s paper Wikitruth Through Wikiorder in that the Wikifoundation seems to find ways to organize and direct a rather large and disparate group rather well. (The details of the voting process are set out here under Certification. They seem to track the paper’s finding that the system wishes to keep people in the system even if they misbehave.) Yet, the vote total seems quite small.

The site explains that suffrage was offered to “All users (excluding bots) who have made at least 25 edits to any Wikimedia project prior to March 15, 2009 are welcome to participate in this vote.” So perhaps there are not that many folks who have more than 25 entries or perhaps not that many chose to participate. Or it could be that the grand and glorious Wikipedia is run by around 17,000 people in total if one takes “run by” to mean 25 or more edits. (Wikipedia editors accounted for 16,785 or 96.1 percent of the vote.)

A quick glance at the stats pages for active users is not that helpful. If I am reading the stats page for active wikipedians correctly, as of 2006 (no idea why the English edits are not listed after that date) a total of 57,500 people were active with 5 contributions per month and very active wikipedians (100 or more per month) had a total of 7779. The new wikipedians (defined as Increase in wikipedians who edited at least 10 times since they arrived) is 17,437 as of April 2006 (again the data stops there). That number is awfully close to the total 17,462 certified votes. Given the gap in data it may be that one is seeing a leveling off in participation at the slightly active range. In addition, it may be that those who have put it in the 25 edits at anytime are engaged enough to vote with an astonishing participation percentage. So yet again there is more to learn about Wikiland and how it works.

  May 21, 2009 at 6:29 pm  Tags: creative commons, GNU license, wikimedia foundation, wikipedia  Posted in: Contract Law & Beyond, Intellectual Property, Technology, Web 2.0   Print This Post   No Comments

Barnes v. Yahoo!, CDA Immunity, and Promissory Estoppel

posted by Daniel Solove

The Ninth Circuit recently decided Barnes v. Yahoo!, a case with some very interesting holdings relating to the Communications Decency Act § 230 as well as promissory estoppel.  I wrote about this case briefly in my book, The Future of Reputation, long before it made it up to the Ninth Circuit.

Celia Barnes’ ex-boyfriend created fake profiles in her name on Yahoo.  Moreover, as the court relates:

The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the addresses, real and electronic, and telephone number at Barnes’ place of employment. Before long, men whom Barnes did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex.

Barnes contacted Yahoo to get the profiles taken down:

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  May 19, 2009 at 6:14 pm   Posted in: Constitutional Law, Cyberlaw, First Amendment, Law School, Media Law, Privacy, Privacy (Gossip & Shaming), Social Network Websites, Tort Law, Web 2.0   Print This Post   4 Comments

Copyright Law and Deregulating Amateur Creativity

posted by Jacqueline Lipton

While reading Lessig’s recent book, Remix, I was struck by a comment in support of his argument that we should deregulate amateur creativity online.  One of Lessig’s suggestions is that if content owners have too much control of a copyrighted work, they potentially suffer more damage than if they have less control, particularly in terms of reputational issues.  In the context of describing Hollywood’s concern about reputation, he notes that:

“This problem comes not, paradoxically, from a lack of control. It comes from too much control.  Because the law allows the copyright owner to veto use, the copyright owner must worry about misuse.  The solution to that worry is less power.  If the owner can’t control the use, then the misuse is not the owner’s responsibility.” (p 257)

In other words, if everyone knows that anyone in the amateur playing field is free to remix copyrighted works in any way they like then no one will be confused into thinking that Warner Brothers supports a Nazi spin on Bugs Bunny.

I wonder if this oversimplifies some of the reputational issues, though.  In countries with moral rights, particularly those that don’t allow waiver of those rights, the concern is not just that audiences might be confused about the source of a remixed work.  Rather, it is that creators (as distinct from copyright owners of course)  should have some say in how their works are used both for purposes of attribution and integrity.  There is more to the equation than simple consumer confusion.

Additionally, given that courts are so prepared to find pretty much anything happening online as “commercial conduct”, I wonder if Lessig’s theory has a practical limitation in that he would exempt all non-commercial remixes of copyright work from a copyright infringement action.  However, this assumes that courts will not readily find an amateur remix to have commercial elements eg if distributed alongside click-through ads online and thus potentially encroaching on the copyright holder’s market to make money from click-through ads related to the placement of the work online.

In other words, I think there may be a problem here with the boundaries between trademark law and copyright law once one starts talking about exempting amateur remixes from the scope of copyright infringement, be it under fair use or otherwise.  If the concern is with reputation, isn’t there a significant possibility that the whole debate would move to trademark law and/or moral rights law (in countries where those rights are available and relevant)?  Wouldn’t copyright holders simply start asserting trademarks in specific aspects of the work that are used in the remix, and then claiming infringement (where there is a commercial purpose and perhaps a claim for “initial interest confusion”) or dilution (where there is no likelihood of consumer confusion any way you slice it)?

I’m not necessarily disagreeing with where Lessig is coming from, and I do think there should be clearer scope for amateur creativity online, but I wonder if the analysis in Remix isn’t a little overly simplistic.  In particular, I wonder if a better way to look at it is that raised by Jessica Litman in her recent article on Lawful Personal Use where she suggests that personal uses of copyright works may well be regarded as outside the scope of copyright law altogether.  This perhaps avoids the difficult distinctions between what is “commercial” and “noncommercial” use online.  However, even Litman isn’t talking about trademark law so that could still be a problem in the online context if coypright is pared back by the courts.

  May 18, 2009 at 7:54 am   Posted in: Cyberlaw, Intellectual Property, Technology, Uncategorized, Web 2.0   Print This Post   2 Comments

Trivializing Women’s Harms: The Story of Cyber Gender Harassment

posted by Danielle Citron

On March 3, 2009, National Public Radio host Tom Ashbrook hosted a conversation about cyber harassment with David Margolick, Marc Randazza, Anthony Ciolli, and myself. Our discussion focused on the attacks on female law students at AutoAdmit in 2007. Here is a little background: anonymous individuals posted hundreds of sexually explicit, threatening, economically-harming, and allegedly defamatory statements about named female students. For instance, “[female student's name] is a dumbass slut with huge fake t****s who I want to rape in the ass”; “I will force myself on her and sodomize her repeatedly”; “She deserves to be raped so that her little fantasy world can be shattered by real life.” Posters suggested that they had access to the named women, noting what they wore at the law school gym, providing updates on their whereabouts, and encouraging others to take pictures of the named women and post them on the site. Posters accused named women of having sexually transmitted diseases (e.g., “[Named female student] is a slut but don’t f***k her she has herpes”). They sent emails to former and prospective employers urging the law firms not to hire named women due to their low character. A poster told the community there that he sent an email to a named student’s faculty members with embarassing information about her. Posters hailed the sender as a hero who should be awarded a Congressional medal. Others engaged in a google bombing campaign to ensure the prominence of the offensive threads in searches of the women’s names: “We’re not going to let that bitch have her own blog be the first result from googling her name!”

During the program, former New York Times At the Bar columnist and current editor at Portfolio magazine David Margolick characterized the AutoAdmit attacks as mostly “juvenile, immature, and obnoxious, but that is all they are.” He called them “frivolous frat boy rants.” Margolick said that because the female law students who graduated from the most prestigious law school in the country now have good jobs, they suffered no harm. Mark Randazza agreed with this characterization of the harassment: “these are digital natives; it is their juvenile shtick.”

As my article “Law’s Expressive Value in Combating Cyber Gender Harassment” (forthcoming Michigan Law Review) argues in great detail, far too many people like Margolick and Randazza trivialize the serious harms that women uniquely suffer as a result of such cyber harassment in much the same way that society downplayed or ignored workplace sexual harassment until 1970s. In the face of threats of sexual violence, women not only feel afraid, but also chilled to act on their own desires. Women withdraw from online discussion groups, shut down their blogs, and alter their physical activities to avoid offline harassment connected to the online harassment. For instance, AutoAdmit victims stopped going to the gym to ensure that the anonymous posters could not take a picture of her and post it online. The cyber harassment also harms women’s dignity and sense of equal worth. Online assaults objectify women by reducing them to their body parts. Harassers further humiliate women by reducing them to diseased body parts. This treats women as moral subordinates and undermines their self-respect just as workplace sexual harassment makes women feel like sex objects, not competent workers. Women suffer a performative harm: they may assume male pseudonyms online to avoid cyber harassment. And cyber harassment inflicts distinct harms to women’s emotional and physical well-being. Women fear that online threats of sexual violence will be realized: anonymous threats are all the more frightening as they are shorn of any cues that might alleviate that fear.

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  March 8, 2009 at 5:38 pm   Posted in: Anonymity, Culture, Current Events, Cyberlaw, Feminism and Gender, First Amendment, Privacy (Gossip & Shaming), Technology, Web 2.0   Print This Post   28 Comments

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